UC-NRLF 462 G77 DECISIONS AND OPINIONS OF THE AND GRAND ARMY OF THE REPUBLIC COMPILED AND ARRANGED By JAMES R. CARNAHAN, COMMANDER DEPARTMENT OF INDIANA G. A. R. FEBRUARY 22, 1882, TO l JUDGE ADVOCATE-GENERAL 1882-1883. INDIANAPOLIS : HASSELMAN- JOURNAL CO. PRINT, 1884. DECISIONS AND OPINIONS COMMANDERS-IN-CHIEF JUDGE ADVOCATES-GENERAL QRAND ARMY OF THE REPUBLIC. REPORTED TO, AND APPROVED BY, THE NATIONAL ENCAMPMENTS FROM THE FIRST, TO AND INCLUDING THE SEVENTEENTH NATIONAL ENCAMPMENT, JULY, 1883. COMPILED AND ARRANGED ACCORDING TO DATE OF RENDITION, WITH SYLLABUS AND DIGEST, By JAMES R. CARNAHAN, COMMANDER DEPARTMENT OF INDIANA G. A. R. FEBRUARY 22, l8Se TO 1884, JUDGE ADVOCATE-GENERAL 1882-1883. Adopted and Approved by the National Encampment, July, 1883. INDIANAPOLIS: HASSELMAN-JOURNAL CO., PRINTERS. l88 4 . INTRODUCTORY. The following report was made to the Seventeenth Na tional Encampment, held at Denver, Colorado, July, 1883 : OFFICE OF JUDGE ADVOCATE-GENERAL, INDIANAPOLIS, IND., June 27, 1883. GEN. PAUL VAN DER VOORT, Commander-in- Chief G. A. R.: SIR AND COMRADE I have the honor to report to you, and through you to the Comrades of the National Encampment, the work that has been done by this office during the year which I have had the honor to act as the Judge Advocate-General, and which is now just closing. In conformity with instructions of the National Encampment held at Baltimore in June, 1882, I have compiled all the opin ions of Judge Advocates-General, from the organization of the Grand Army up to the present date. I have arranged them in their order as rendered, and numbered them consecutively from I to CXLV. For each of the opinions I have prepared a sylla bus, and have also prepared an index and digest for the entire work, referring to the opinion by number and page of the work. During the year I have rendered fifteen opinions on subjects referred to me from National Headquarters. These opinions are embraced in the compilation herewith sent you, and are num bered from CXXXI to CXLV, inclusive. I have performed this work in accordance with the order of the last National Encamp ment in so far as the preparation of a syllabus was ordered ; but, believing that a syllabus alone would not meet the needs of the Grand Army, I collected all the decisions of my predecessors, that the Comrades might not only have the outline, but the full text of the opinions and decisions which are now a part of the 902976 INTRODUCTORY. law governing the Grand Army. I herewith submit the same for your approval. Thanking the Commander-in-Chief and the members and Comrades of the staff for courtesies shown, I am yours in F. C. and L. , JAS. R. CARNAHAN, Judge Advocate- General. The report of the committee on the Judge Advocate- General s report was read and adopted. The report is as follows : DENVER, COL., July 26, 1883. To the National Encampment of the G. A. R.: Your committee on the report of the Judge Advocate-General would respectfully report that, after a careful examination of said report and the digest of opinions accompanying the same, they cordially recommend that said digest of opinions be accepted and approved as the law of the Grand Army of the Republic upon the subjects therein treated. In the opinion of the com mittee the compilation is one of learning, research and ability, bringing the common law of our organization in a palpable and comprehensible form before our Comrades, and gathering to gether and formulating rules for the determination of questions which may arise hereafter, which will be invaluable to the Order by reason of their simplicity, directness and accessibility. HENRY E. TAINTOR, W. R. MANNING, W. F. CHAMBERLAIN, CHARLES W. BLAIR, JOHN P. REA, Committee. After the adjournment of the Seventeenth National En campment the following correspondence was had, and ex plains the re-publishing of this volume of the DECISIONS AND OPINIONS OF THE COMMANDERS-IN-ClIIEF AND JUDGE ADVOCATES-GENERAL: INTRODUCTORY. HEADQUARTERS GRAND ARMY OF THE REPUBLIC, No. 1202 CHESTNUT ST., PHILADELPHIA, Sept. 5, 1883. GEN. JAS. R. CARNAHAN, Indianapolis, Ind.: DEAR COMRADE I find that it is necessary to reprint the di gest of decisions prepared by you under resolution of the Na tional Encampment at Baltimore, in order that all our Posts and National and Department officers may be supplied with copies of this valuable book for reference. As the work has so lately left your hands, and you are so thoroughly familiar with what is needed, I would ask whether you have any changes to suggest therein, and whether you could give the time to preparing the matter for the printer. We shall need a large edition, and it is well now to have the work as complete as it can be made. Yours in F. C. and L. , ROBT. B. BEATH, Commander-in- Chief. INDIANAPOLIS, IND., Dec. i, 1883. GEN. ROBT. B. BEATH, Commander-in- Chief G. A. R.: COMRADE In response to your request of September 5th, I have revised for re-publication the opinions of the Judge Advo cates-General. I deemed it advisable, as a matter of conveni ence, to set out also such portions of the Rules and Regulations as were referred to in the opinions. I have added to my orig inal work such decisions as have been rendered by the Com- manders-in-Chief of the Grand Army, and also the rules govern ing Courts Martial. I have revised and enlarged the digest, making it more complete than in the first edition. Fraternally, JAMES R. CARNAHAN, Commander Dept. Indiana G. A. R. Late Judge Advocate- General G. A. R. OPINIONS. OPINION I. July i, 1871. 1. Rules and Articles of War A part of the laws of the land. 2. Charges All charges must be tried by Court Martial. 3. Exception Member may be dropped for arrears. The question is proposed to me : "Can a member of the Grand Army of the Republic be dishonorably discharged therefrom without trial by Court Martial, and if so, by what mode of proceeding?" The facts which require an opinion constitute an extreme case. A Comrade of this Order, being in the service of the United States, deserted from that service, was apprehended, and is now awaiting trial by general Court Martial. The Rules and Articles of War are, to persons in the military service of the United States, a part of the laws of the land, in the intent of Chapter V, Article VI, Section i, Paragraph 3, of the Revised Rules and Regulations of the Grand Army of the Repub lic. Desertion from the United States army is one of the gravest offenses known to military law, and when committed by a mem ber of the Grand Army of the Republic constitutes one of the offenses recognized by the paragraph referred to.* *ARTICLE VI, CHAPTER V, RULES AND REGULATIONS. DISCIPLINE. SECTION i. Offenses cognizable by the Grand Army of the Republic shall be : First Disloyalty to the United States of America, or any other violation of the pledge given at the time of muster. Second Disobedience of the Rules and Regulations, or of lawful orders. Third The commision of a scandalous offense against the laws of the land. Fourth Conduct unbecoming a soldier and a gentleman in his relation to the Grand Army of the Republic. , OPINIONS OF JUDGE ADVOCATES-GENERAL The National Encampment, following the enlightened princi ples of modern criminal codes, has provided for the trial of all charges against members of the Order by courts composed of their Comrades, before whom the accused may have opportunity to be heard, if they desire to appear and contest the accusations brought against them. See Rules and Regulations, Chapter V, Article VI, Sections 3 and 4, set out with this opinion. The only exception to the regulation requiring trial and sen tence of a Court Martial to precede the expulsion of a member of the Order, is found in the amendment to Section 4, Article III, of the same Chapter, passed at the May session of the National Encampment, A. D. 1871, providing that, if a member be one year in arrears in the payment of dues, he shall be dropped from the rolls, which is obviously not applicable in this case. NOTE See Opinion XXXVI. Fifth Conduct prejudicial to good order and discipline. SEC. 3. All accusations shall be made in the form of charges and speci fications, and shall be tried by Courts Martial. Courts Martial may be or dered by Commanders of Posts or of Departments, or by the Commander- in-Chief, for the trial of alleged offenders in their respective jurisdictions. Members of Department Encampments and officers of Department Staffs shall only be tried by courts convened by order of the Department Com mander, or higher authority. Members of the National Encampment and officers of the National Staff shall only be tried by courts convened by or der of the Commander-in-Chief. SEC. 4. Courts Martial shall be governed in their mode of proceeding and rules of evidence by the Revised United States Army Regulations and established military usage, and such orders as may be issued from Head quarters : Provided, however, That in the willful absence of the accused, after due notice of the time and place of trial has been given to him, or left at his usual place of abode, the court may proceed in all respects as if he were pres ent and had pleaded "not guilty." The following rule was adopted by the National Encampment, 1879. See Rules for Court Martial herein : " From and after promulgation hereof, no Post Courts Martial shall be con vened, except when the same shall have been ordered by a majority vote of the Post of which the accused shall be a member, or of the Post under whose jurisdiction or control he shall be at the time, or by the Department Com mander." For Court Martial proceeding, see Rules for Court Martial, herein. NOTE See Opinion XXIII. OF THE GRAND ARMY OF THE REPUBLIC. OPINION II, JULY 3, 1871. 1. The National Encampment only can suspend any part of the Rules. 2. Department Commander may detail staffofficer to receive one into the Order. 3. Regulations do not require admission fee to accompany application. When paid, it becomes the property of the Post. Post has power to remit. Charles Prego, a soldier in the United States army, made application to join McRae Post, No. I, Department of New Mexico, located at Santa Fe, and before his applica tion could be acted on, in order to re-enlist in the army, he was obliged to remove from the vicinity of the Post ; and when he was notified of his election, he was serving in Company H, Fifteenth Infantry, about two hundred miles from Santa Fe. He was, therefore, unable to present him self for muster within the three months limited by the Regulations. The questions are asked, "Can the second clause of Section 7, Article II, Chapter II, of the Rules and Regu lations be suspended in his case?" and, secondly, "Can the Post remit the forfeiture of the admission fee which ac companied his application?" i. The first question is answered by Article XV of Chapter V, Rules and Regulations, which gives the power to suspend *SECTION 7, ARTICLE II, CHAPTER II, RULES AND REGULATIONS. SECTION 7. Each applicant, upon his election, shall be at once notified thereof in writing, and on presenting himself for membership shall be prop erly mustered. But unless he present himself for muster within three months from the date of such notice, his election shall be void, and all mon eys which may have been required by the Post to accompany the application shall be forfeited to the Post treasury. AMENDMENT BY NATIONAL ENCAMPMENT, 1872. The Commander-in-Chief or a Department Commander may, however, grant a dispensation in any particular case, to a Post, to muster a candidate, even though he has not presented himself for muster within three months after notice of election. 10 OPINIONS OF JUDGE ADVOCATES-GENERAL any part of the Rules to the National Encampment alone, by unanimous vote, at the annual meeting. f 2. It is suggested, however, that though the election of Mr. Prego is void, it is within the power of the Department Com mander to detail a staff officer to receive him into the Order, provided he is at a distance from any Post, if, in the opinion of the Department Commander, such action is desirable. After being mustered into the Grand Army of the Republic, Mr. Prego would be able to join the Post, without necessarily being present. It would, perhaps, be better for the applicant, if he is likely to be ordered to Santa Fe, to wait until he arrives there, and then renew his application for membership. J 3. The second question is not directly answered by the Reg ulations. The money forwarded is forfeited, and has become the property of the Post ; but the forfeiture is not of the nature of a punishment for misdemeanor the rule requiring the admis sion fee to accompany the application being rather intended to secure a pledge that the application is made in good faith. The Regulations do not require the admission fee to be forwarded with the application, but only that it shall be paid before enlist ment and muster. It was forwarded in the present case in accordance with a By- Law of the Post. The money being now the property of the Post, and entirely under their control, the Post may appropriate from their funds an equal amount to the fARTICLE XV, CHAPTER V. ALTERATIONS AND AMENDMENTS.* The Rules and Regulations, and the Ritual of the Grand Army of the Republic, shall only be altered or amended by the National Encampment, by a two-thirds vote of the members present at a regular annual meeting thereof. But any section herein may be suspended, for the time being, at any annual meeting of the National Encampment, by a unanimous vote. *Proposed amendments to Rules and Regulations must be presented to the Adjutant Gen eral in time to furnish each member a copy at least thirty days before the Annual Encampment. Resolution of Encampment, June 18, 1879. ^SECTION 9, ARTICLE II, CHAPTER II. SECTION 3. The Commander-in-Chief or a Department Commander, may, at pleasure, receive and muster in an applicant for membership, or detail a Comrade for that purpose, provided the person so received and mustered in resides outside the proper territorial limits of any Post. OF THE GRAND ARMY OF THE REPUBLIC. 11 sum paid by the applicant, if they desire to relieve him from the pecuniary loss which he has unfortunately incurred. I am the more confident in this expression of opinion from the spirit of the provision of Section 3, Article IV, Chapter V, which spe cifically gives to any Post the .power to remit the dues of mem bers who are unable, by reason of sickness or misfortune, to pay them.* OPINION III, AUGUST u, 1871. 1. A Comrade may demand transfer Post can place no restrictions thereon. 2. Request for transfer card may be by written application. The facts will sufficiently appear in the opinion. i. I am of the opinion that Section 2, Article IV, Chapter II, of the Rules and Regulations gives to any member in good stand ing, whose dues are paid, the right to demand a transfer paper, and that no Post can impose any restriction upon his right in the form of a fee or otherwise.! *SECTION 3, ARTICLE IV, CHAPTER V. SECTION 3. Any member of a Post who is six months in arrears in the payment of his dues, shall be prohibited from voting, shall be ineligible to any office in the Grand Army of the Republic, and shall be reported " sus pended" in the quarterly reports to Department Headquarters until such dues are paid. While so suspended the Post shall not be subject to the per capita tax on such member, and he shall not be counted in the representation of the Post in the Department Encampment, nor of the Department in the National Encampment. Provided, however, That when a Comrade is unable by rea son of sickness, or misfortune, to pay his dues, they may be remitted by a two-thirds vote of the members present and voting at a regular meeting of the Post; but by this remission of dues the Post shall not become liable for the payment of his per capita tax, nor shall he be counted in the representa tion to the Department or National Encampment. fSECTION 2, ARTICLE IV, CHAPTER II. SECTION 2. Any Comrade against whom no charge exists, and who has paid all dues, shall receive, upon verbal or written application to the Com mander, at a meeting of the Post, a transfer card, attested by the Adjutant. 12 OPINIONS OF JUDGE ADVOCATES-GENERAL 2. It is also my opinion that Section 3 of the same Article does not require a personal application,* but that a written appli cation is sufficient. The requirement that the application shall be made at a regular meeting is doubtless designed to give such publicity to the desire of the Comrade to withdraw, that any facts affecting his good standing may become known, f OPINION IV, AUGUST n, 1871. i. Involuntary service in the Rebel army forms no exception to Section i, Article IV, Chapter I, Rules and Regulations. i. The case of an applicant for admission to the Grand Army, who had been, in the early part of the war, forced into the Rebel service, comes directly within the letter and spirit of the second clause of Section i, Article IV, Chapter I, of the Rules and Regulations: "And no person shall be eligible to Upon presentation of it to any Post within one year from the date of its is sue, he may be admitted in the manner prescribed in Article III of this Chapter. In the meantime he shall remain, for purposes of discipline only, under the jurisdiction of the Post granting the transfer card. If, at the ex piration of a year, he has not been admitted to membership in any Post, the transfer card shall be void, and the holder be considered as honorably dis charged from the Order. fSECTION 3, ARTICLE IV, CHAPTER II. SECTION 3. Any Comrade in good standing, on application to the Post Commander, at a regular meeting, shall receive at some subsequent meeting an honorable discharge, signed by the Post Commander and attested by the Adjutant. Provided, That, at the time of such application, there are no pe cuniary charges against him on account of the Post. A Comrade thus dis charged can be re-admitted by filing a new application, to be regularly referred and reported on, and upon receiving a two-thirds vote of the mem bers present, and voting at a regular meeting, he shall be admitted without re-muster, on taking anew the obligation. NOTE See Opinion LXIII, herein. OF THE GRAND ARMY OF THE REPUBLIC. 13 membership who has at any time borne arms against the United States."* The fact that the service against the Union was involuntary, does not constitute this case an exception to a rule so clearly and unreservedly expressed. There were no persons whom the framers of this rule could have contemplated but this very class who served in the Confederate army, and afterwards in our own ; for at the commencement of the Rebellion, all who had then borne arms against the United States in any foreign war, must have become too old for our service, unless there were any who fought against us in Mexico, and for us during the Rebellion. If there were any such persons their number must be too small to have been thought of when this regulation was passed. Clearly, therefore, the applicant in this case is ineligible. There may be instances, and the present may be one of them, where this rule works harshly, but it is of far more importance that the loyalty of every member of our Order should be above reproach than that we should omit from our roll a few good men, who showed weakness, at least, if they escape the suspicion of disloyalty. NOTE See Opinion CXIV. *ARTICLE IV, CHAPTER I. ELIGIBILITY TO MEMBERSHIP. Soldiers and sailors of the United States army, navy or marine corps, who served between April I2th, 1861, and April 9th, 1865, in the war for the suppression of the Rebellion, and those having been honorably dis charged therefrom after such service, and of such State regiments as were called into active service and subject to the orders of United States general officers, between the dates mentioned, shall be eligible to membership in the Grand Army of the Republic. No person shall be eligible to membership who has at any time borne arms against the United States. 14 OPINIONS OF JUDGE ADVOCATES-GENERAL OPINION V. AUGUST 14, 1878. 1. Power of Post to fix amount of initiation. 2. Grades of membership abolished. 3. No tax can now be assessed on members of the first and second grades now admitted to the Order. The question is referred to me, "whether the former tax upon members for advancement to the second or third grades shall be still imposed upon recruits and soldiers, and upon new members, and if so, in what manner?" I answer 1. It is within the power of any Post to fix the amount of the initiation fee to be paid by new members, provided that it shall not be less than one dollar (vide Chapter II, Article II, Sec tion 8, Rules and Regulations.)* This intiation fee should be fixed by the Post By-Laws, and may be altered at the discretion of the Post, in the manner that such By- Laws may prescribe in the case of other amendments. 2. The amendment to the Rules and Regulations passed at the last session of the National Encampment, May, 1871, and the resolution adopted at the same time, published in General Orders, C. S.. dated New York, June 14, 1871, abolished the system of grades of membership, and consequently all differences of privilege or standing founded on such distinctions, and ad mitted all who are now members of the Order in good standing to full membership, upon their complying with the directions contained in the resolution. 3. It is pertinent to the consideration of this question to remember that whenever the Posts under the old organization had the power to levy taxes or fees, the power was derived from express provisions in the Regulations. They were expressly authorized or directed to assess annual taxes, initiation fees, and *SECTION 8, ARTICLE II, CHAPTER II. SECTION 8. A member-elect shall pay, before enlistment and muster, an admission fee of not less than one dollar. Upon muster in, he shall sub scribe to a copy of these Regulations, and of the By-Laws of the Post. OF THK GRAND ARMY OF THE REPUBLIC. IT) fees for the advancement of recruits and soldiers. We should have expected, therefore, that if the Encampment had intended that fees should be charged the present soldiers and recruits on their reception as full members, it would have been so provided in this carefully-drawn and well-considered resolution. But there is nothing of the kind there. Post Commanders are directed, immediately on such applicants presenting themselves, to admin ister to them the new obligation, and to admit them to full mem bership in the Post. Here is not only no direction to assess a tax, but such imme diate action is evidently contemplated as would give no time for any tax to be assessed or imposed : for a previous meeting of the members of the third grade would be necessary in order that the amount of such tax should be fixed by them. We shall search in vain anywhere else for authority to impose the tax. I am therefore of the opinion that no tax can be, or ought to be, imposed upon the members of the first and second grades who are now admitted to full membership with the veterans.* OPINION VI. SEPTEMBER 7, i87i. i. Paymaster s clerk in the navy is eligible to membership. I am of the opinion that a Paymaster s clerk in the navy is a sailor of the United States navy in the intent of Section i, Article IV, Chapter I of the Rules and Regulations. f He is appointed by the Paymaster, subject to the Captain s approval, and is then sworn or mustered into the service and re ceives a warrant which assigns him definite rank. If he leaves *SECTION 10, ARTICLE It, CHAPTER II. SECTION 10. The applications for membership of persons who were comrades before the introduction of the grade system, but who never took the obligation of the third grade, shall be received and acted upon the same as if the applicant had never belonged to the Grand Army. NOTE See Opinion CXV. fSee Article IV at close of Opinion IV. 16 OPINIONS OF JUDGE ADVOCATES-GENERAL the -ship without permission, he is a deserter and is liable o punishment as such. He is borne on the ship s roll and is paid by the Government, and has a station and a command given him in time of action. I consider him as eligible to membership as an Engineer or Assistant in the navy, or as a Hospital Stew ard in the army. When his cruise is over he receives a dis charge, so that he has been in the service, subject to regulations, liable to command men in action, and in every way entitled to be associated with those who served in other capacities during the war. OPINION VII, SEPTEMBER 12, 1871. 1. Commander-in-Chief may prepare a translation of the Ritual. 2. Commander-in-Chief may authorize use of Ritual in a foreign language. 1. Can the Commander-in-Chief authorize a Post to print the Ritual in German for its own use? 2. Can he authorize a Post to use a written translation into German? My opinion on the points submitted is as follows : 1. I do not regard the language in which it is written as a material part of the Ritual. I think its ceremonies would be as well performed in German or in French as in English ; but the preparation of such a translation should be under the immediate supervision and direction of the Commander-in-Chief. He might detail any competent Comrade to make the translation, and could employ any Comrade to print it. The copies printed should all be in his custody, and issued from National Headquarters, as the Ritual in English is. 2. Under restrictions as to the mode of supplying the Ritual in a foreign language which I have just stated, I think the Com mander-in-Chief may authorize its use by a Post composed of persons who speak the language proposed better than English.* * ARTICLE VI, CHAPTER IV. DUTIES OF OFFICERS. SECTION i. The Commander-in-Chief shall enforce the Rules and Reg ulations of the Grand Army of the Republic, and the orders of the National OF THE GRAND ARMY OF THE REPUBLIC. 17 OPINION VIII. SEPTEMBER 12, 1871. 1. Commander-in-Chief has no authority to withdraw the Charter of a Department Depart ment Commanders may, by consent of the Council of Administration, suspend or annul Charter of Post. 2. No such power given to National Council of Administration nor to the National Encamp ment. .(Changed by amendment. See Note.) 3. Inspectors, and their duty. 4. Powers of Commander-in-Chief as to Department officers. 5. On refusal or neglect of Department officers to perform their duties they may be placed in arrest. 6. Commander-in-Chief may detail an Acting Commander. If the officers of a Department of the Grand Army of the Republic neglect their duty, omit to make returns and reports as required by the Rules and Regulations, and allow their Departments to become demoralized and practically defunct, has the Commander-in-Chief authority to annul the Charter of the Department and remand it to a provis ional condition? Has the Council of Administration this authority? After a careful consideration of the subject, I submit my opinion, as follows : i. There is no authority given by the Rules and Regulations to the Commander-in-Chief to withdraw the Charter of a Depart ment. The subject of Charters is considered in Chapter V, Encampment and Council of Administration, and for this ptirpose he may issue suck orders as may be necessary. He shall preside in the National Encampment and Council of Administration, decide all questions of law or usage, subject to an appeal to the National Encampment; approve all requi sitions properly drawn on the Quartermaster-General, and shall hold all securities given by National Officers, as trustee for the Grand Army of the Republic. He shall appoint immediately after entering upon his office, the Adjutant-General, the Quartermaster-General, the Inspector-General, the Judge Advocate-General, and Assistant Adjutant-General, as many Assistant Inspectors-General on the nomination of the Inspectors-General, and as many Aides-de-Camp as he may deem necessary. He shall appoint all other National Officers and committees not otherwise provided for, and may re move these officers at his pleasure. He shall promulgate through the proper officers the National countersign, and may change the same at his discretion, and shall issue to all Departments, regularly organized, suitable Charters, and appoint Provisional Commanders in States and Territories where there is no Department organization. -? 18 OPINIONS OF JUDGE ADVOCATES-GENERAL Article I, of the Regulations. That Article contains a provision (Section 4) that Charters of Posts may be suspended or annulled by the Department Commander with the advice and consent of the Council of Administration ; but there is no such power granted to the Commander-in-Chief and the National Council of Administration with respect to Departments, though the mode of issuing Charters to Departments, and the fees to be paid for them, are specified in the next Section of the same Article. Fol lowing an almost inflexible rule of construction, the inference is unavoidable, that such power was not intended to be given to the Commander-in-Chief. It does not seem to me that such power can be claimed, either, as one of the necesssary prerogatives of the office of Commander- in-Chief, like his right to issue orders on various subjects not specifically provided for in the Regulations. It is a power of such importance, and so liable to abuse or error in its exercise, that it should not be claimed without express authority of the Constitution of the Order. t 2. The Regulations nowhere confer this power specifically upon the National Council of Administration any more than upon the Commander-in-Chief. Is this power, then, implied in the provision, Chapter IV, Article VI, Section 9: "It (the Council of Administration) * * shall represent in all matters the National Encampment in the interval between its sessions?" This provision does not relate to the exceptional powers of the National Encampment, like that, for instance, of altering or amending the Regulations, for the exercise of that power is con ferred by Chapter V, Article XV, t,o the National Encampment at its annual meeting. It must, therefore, confer power to be exercised under those Rules and Regulations, not amounting to an NOTE. By amendment to Chapter V, Article I, adding Section 6, National Encampment, May, 1872, the power of revoking the Charter of a Department is given to the National En campment, or to the Commander-in-Chief and Council of Administration, viz. : SECTION 6. The National Encampment, at its annual session, or the Commander-in-Chief, with the consent of the Council of Administration, may at any time revoke the Charter of a Department, which for three-quarters of a year has failed to forward its reports or dues, and may remand such a De partment to a provisional condition." OF THE GRAND ARMY OF THE REPUBLIC. 19 amendment of them, and can only include the general and ordi nary matters of administration which are by the Regulations entrusted to the National Encampment. But can the National Encampment itself annul the Charter of a Department, for certainly it has not conferred on the Council of Administration greater powers than its own? Such an act would be in the nature of a forfeiture or punish- ishment, and could only be performed by the passage of a reso lution declaring that the Charter had been misused, and had, therefore become forfeited. Such a resolution, however, would be an ex post facto law, which is now universally reprobated. It would be affixing a punishment not prescribed by the law under which the offense was committed. The only course for the National Encampment in the premises would be to pass an amendment to the Rules and Regulations providing a remedy for such a condition of affairs in the future, by giving the Com- raander-in-Chief and the Council of Administration, or the Na tional Encampment itself, power to act if the neglect of all the Department officers should be repeated or continue after the passage of such a law. Again, the revocation of the Charter of a Department would remove all the Department officers ; but, as the Regulations now stand, this is impossible without a Court Martial. So much for the extreme power to annul a Department Char ter which does not seem to me to be lodged in any officer or body of the Grand Army. The representation of such a Depart ment in the National Encampment is suspended, by existing regulations, while the disability exists. 3. The policy of the National Encampment, as expressed in the Rules and Regulations, seems to have been to prevent any Department getting into a demoralized condition by the system of inspection by officers appointed by the Commander-in-Chief, and responsible, through the Inspector-General, to him alone. By this means, any delinquency on the part of Department offi cers would be immediately reported, and, if occasioned by mistake, would be corrected ; or, if arising from intentional insubordination or carelessness, would be the occasion for trial by Court Martial. One such exercise of discipline would, in 20 OPINIONS OF JUDGE ADVOCATES-GENERAL most cases, be sufficient to recall the Department to its duty. The advantage of having at Headquarters of each Department a representative of the Commander-in-Chief in the person of an Assistant Inspector-General, are obvious, from the fact that a personal interview with the Department Commander is a mode of communication much more easy and effective than by letter or order. 4. In regard to the present power of the Commander-in-Chief, it is clear that if the Commander of any Department refuses or neglects to forward his returns, or to obey lawful orders, he may be placed in arrest, /. e. , suspended from his office, on charges being preferred against him. Then his duties devolve on the Senior Vice Commander, and after a reasonable time, if his con duct is the same, he may be treated in the same way. The Jun ior Vice Commander then succeeds, and if he also proves negli gent or disobedient, he must likewise be suspended. Then it would, I think, be the duty of the Commander-in-Chief to detail a Comrade as Acting Commander of the Department, with in structions to call immediately a meeting of the Department Coun cil of Administration for the election of Department officers for the remainder of the current year. Until the holding of such an election the Acting Commander would hold the office. If all the Department officers were removed or resigned, the Acting Commander could be appointed at once ; but no act could be done affecting the Charter of the Department, and a regular election of Department officers must be held as soon as possible. All the remedies now given by the Regulations are personal, by the prosecution and removal, after trial, of the officers who neg lect their duty. The only justification of the act of the Commander-in-Chief in appointing an Acting Department Commander would be the ne cessity of filling the office until an election could be held. Finally: I can not avoid these conclusions, although in one instance it seems as if the late Commander-in-Chief, Comrade J. A. Logan, did exercise some such power as the one \ve are con sidering, in respect to the Departments of Missouri and Iowa, as appears by General Order No. 3, Paragraph 6, Headquarters Grand Army of the Republic, Washington, February 5. 1871 ; but OF THE GRAND ARMY OF THE REPUBLIC. 21 it does not appear whether these were provisional or regularly constituted Departments, nor does it appear that the Charter of either Department was revoked. Paragraph 7, of the same order, simply carries out the Rule which suspends Departments from representation while their reports or dues are in arrears. If it was the fact that the Departments which were virtually ignored by the order to the Posts to report directly to National Headquarters, had been regularly constituted, and were by this order remanded to a provisional condition, while still holding the same opinion as to the illegality of the act, I should be compelled to say that the question has been decided by the precedent thus made for the present and future cases. Yet I regard such a pre cedent as a most dangerous one, and should not advise that it be followed. If the question is a new one, the course of argument I have pursued seems to me conclusive ; but the Commander-in-Chief is made the final arbiter of all questions of law and usage, and if he thinks the necessity of the case demands extraordinary powers, he may exercise them, subject to appeal to the National Encampment. OPINION IX. SEPTEMBER 15, 1871. 1. Department Officers hold their offices until their successors are installed. 2. Commander-in-Chief may take jurisdiction of a Department. If a Department organization neglects to hold annual Encampments for electing officers, can they hold their offices indefinitely? Can the Commander-in-Chief order the Department Com mander to call an Encampment, and name time and place, when the Department Commander has failed to do so? I say, decidedly, yes to both questions to the first because the Regulations prescribe that the officers shall hold their posi tions until their successors are installed ; to the second, because 22 OPINIONS OF JUDGE ADVOCATES-GENERAL it is the duty of the Commander-in-Chief to issue all orders required to enforce the Rules and Regulations.* 2. If a Department Commander fails to perform a duty pre^ scribed by the Regulations, the Commander-in-Chief should order him to do it ; and when the matter of calling a meeting is in his hands, by virtue of the neglect of the Department Com mander, he may take jurisdiction of the whole matter, and may fix the time and place in his order to the Department Com- mander.f OPINION X. SEPTEMBER 15, 1871. i. Commander-in-Chief has no power to change a Permanent Department to a Provisional Department. (See note to Opinion VIII.) The Commander-in-Chief having power to order the per manent organization of a Department when it comprises ten Posts, can he not place it again in a provisional condition when the number of Posts becomes less than ten? I answer, no. It must be expected that our organization, composed of men past their early youth, will gradually diminish in numbers until it is finally extinguished by the death of all who have joined it. This cause, it is evident, will reduce one Depart ment after another to a less number of Posts than ten, and yet it would be desirable, I think, that the few survivors of our glorious army should keep up the regular organization to the last. At any rate, the emergency is one which, sooner or later, will arrive in every Department, and the subject of providing for it may be *SECTION 2, ARTICLE V, CHAPTER III. SECTION 2. The officers thus elected shall enter upon their respective duties immediately after the adjournment of the meeting at which they were chosen, and shall hold office until their successors are duly installed. fSee Section I, Article VI, Chapter IV, first paragraph of the section fol lowing Opinion VII. OF THE GRAND ARMY OF THE REPUBLIC. 23 left for the future. Any decision of the question now, in view of the fact that it must come before the National Encampment by-and-by, would be premature. And certainly any decision with reference to one Department, without considering how it will apply in the future to all, would be injudicious. I think also that the course of argument I pursued in Opinion VIII is not avoided by the different manner of putting the ques tion. If the Commander-in-Chief can not revoke a Department Charter, as I there argued, under any circumstances, it will be useless to consider whether any particular Department Charter ought to be revoked. NOTE. This opinion is not affected by the amendment referred to in the note to Opinion VIII. OPINION XI. SEPTEMBER 29, 1871. i. One not legally introduced into the Order, not a member. a. Council of Administration has no power to legalize an illegal act of a Post Commander. Post No. 7, Department of New Hampshire, voted upon an application for admission at the same meeting at which it was received. The applicant was declared elected, and was thereupon mustered into the Post Some of the mem bers of the Post appealed from its action to the decision of the Department Commander. Comrade Frank D. Wood- bury, Judge Advocate, Department of New Hampshire, decided that the action of the Post was illegal and void.* * ARTICLE II, CHAPTER II. ADMISSION TO MEMBERSHIP. SECTION I. Every application for admission to membership shall be in writing, and shall give in detail, upon the blanks furnished by the National Headquarters, the applicant s age, birthplace, residence, occupation, date and rank when entering the service,- and his rank at the time of his discharge (or if still in the service, his present rank), the date and cause of his discharge, the company and regiment or ship to which he belongs or belonged, the length of time he served; if wounded, when, in what engagement, in what 24 OPINIONS OF JUDGE ADVOCATES-GENERAL The Department Council of Administration decided, nev ertheless, that the applicant should be retained as a Comrade. From this decision the appellants appeal to the Com- mander-in-Chief. i. I am of opinion that the appeal should be sustained and the decision of the Council of Administration reversed. The opinion of Comrade Woodbury is correct, and his conclusion is not disputed, but the election and muster were illegal. If a man was not legally introduced into the Order, he is not a member. All the proceedings in his case, subsequent to .the reference to the committee, are null and void. The Post Com mander should be directed to cause the committee to make a manner and degree, and the fact of any previous application, and to what Post it was made. SEC. 2. The application shall be presented at a stated meeting, and be recommended by a member of the Post, who shall vouch for the applicant s eligibility ; it shall then be referred to a committee of three, of which num ber the member recommended shall not be one, for investigation and report. SEC. 3. The committee shall make careful investigation of the facts set forth in the application ; they shall see the applicant in person, and shall recommend his election or rejection, at a meeting subsequent to their ap pointment, by endorsement upon the application. Provided, however, .That the Commander-in-Chief or a Department Commander may grant a dis pensation, in writing, to a Post to waive, in any particular case, the rule prohibiting an investigation committee from reporting upon an application on the evening of their appointment. SEC. 4. After the reading of the report, the Commander shall give op portunity to any Comrade having objections to the election of the applicant to state the same, after which a ballot with ball ballots shall be had. If, on a count of the balls deposited, it appear that not more than twenty are cast, and two or more of them are black, the candidate shall be declared rejected; but, if more than twenty are cas,t, then an additional black ball for every additional twenty shall be necessary to reject. If a less number of black balls than above provided be cast, the candidate shall be declared elected, and no reconsideration of a ballot shall be had after the Commander has announced the result thereof. But should the result of the ballot be unfa vorable, and the Commander suspect any mistake, he may, at his discretion, before declaring the vote, order a second ballot, the result of which shall be fina . NOTE See, also, Opinion XXXVII. OF THE GRAND ARMY OF THE REPUBLIC. 25 new report. A new election should be held, and then, if the applicant is elected he should be re-mustered. The reason of the rule requiring the interval between two meetings to elapse between an application and the vote on the question of admis sion, is to give notice to the members of the Post, that the facts may be ascertained which would prevent the election of im proper persons. If the applicant in this case is a suitable person for election he will no doubt be elected again ; if not, he should not be a member of the Order. 2. It will be readily seen, I think, that the condonation by the Council of Administration of the illegal act of the Post Commander, in putting the question of the applicant s admission at the same meeting at which the application was received, and the adoption of the result of that act by considering the person a member, is arrogating to the Council the same power to avoid the Rules and Regulations which the Post Commander assumed.* The Post By-Laws should also be modified, so as not to con flict with the Rules and Regulations. OPINION XII. OCTOBER i, 1871. i. National Council of Administration Rights of Are National Officers of the Grand Army of the Republic. 2. Appeals from Department Commander. The questions proposed appear sufficiently in the opinion. i. I think that all the members of the National Council of Administration may sit, whether the Departments they come from are in arrears or not. *SECTION 9, ARTICLE VI, CHAPTER III, RULES AND REG ULATIONS. DUTIES OF THE DEPARTMENT COUNCIL OF ADMINISTRATION. SECTION 9. The Council of Administration shall have charge of the working interests of the Department, shall audit the accounts of the various officers, shall keep a full and detailed record of its proceedings, and shall present the same for the consideration of the Department Encampment at each stated meeting thereof. 26 OPINIONS OF JUDGE ADVOCATES-GENERAL First Because the clause of exclusion, in terms, only applies to representation in the National Encampment, and penal statutes are always to be construed strictly.* Second Because the Council of Administration are National Officers of the Grand Army of the Republic, elected by the Na tional Encampment, not by Departments, and are not representa tives of Departments, except in the most general sense. I think the members of the Council should be more dependent, for their right to sit there, on the status of their Departments, than the Com- mander-in-Chief would be, or any other of the National Officers, j 2. Chapter IV, Article VI, Section i, says: "He (the Com- mander-in-Chief) shall decide all questions of law and usage, subject to an appeal to the National Encampment." I do not understand that an appeal lies from a decision of a Department Commander or Department Encampment, directly to the National Encampment, but first to the Commander-in-Chief, then, after his ruling, to the National Encampment, j SECTION 4, ARTICLE II, CHAPTER IV, RULES AND REGULATIONS. REPRESENTATION. SECTION 4. Departments and Provisional Departments in arrears for reports or dues shall be excluded from all representation in the National Encampment until the same are forwarded. fSECTION 2, ARTICLE IV, CHAPTER IV. OFFICERS. SECTION 2. The National Officers of the Grand Army of the Republic shall be a Commander-in-Chief, a Senior Vice Commander-in-Chief, a Junior Vice Commander-in-Chief, an Adjutant-General, a Quartermaster-General, an Inspector-General, a Judge Advocate-General, a Surgeon-General, a Chaplain-in-Chief, and a Council of Administration, consisting of the above- named officers and one Comrade from each Department, to be chosen by the National Encampment. JARTICLE VII, CHAPTER III. APPEALS. All members shall have the right of appeal, through the proper channels, from acts of Posts or Post Commanders, and Department Commanders or Encampments to the next highest authority, and to the Commander-in- Chief, whose decisions shall be final, unless reversed by the National Encampment; but all decisions appealed from shall have full force and effect until reversed by competent authority. OF THE GRAND ARMY OF THE REPUBLIC. 27 OPINION XIII. OCTOBER 12, 1871. 1. Private members of a Post are not to be held responsible for the neglectof the officers. 2. Department officer does not forfeit his office by reason of any misconduct of his Post. Does a Comrade holding a Department office forfeit such office when the Post of which he is a member neg lects its duty, and becomes practically disorganized? 1. If Posts are unmindful of their duties their Charters should be suspended or annulled by the Department Commander and Council of Administration, but it is altogether too harsh a doc trine to hold the private members of the Post responsible for the neglect of its officers.* The remedy is either against the whole body, as above, or by Court Martial of the officers, the respon sible parties. The status of the members of such Posts is recognized in Section 4, of Article IV, Chapter II, Rules and Regulations, which provides that if the members themselves are in good standing, even when the Post is disbanded, they may take transfer cards and join other Posts, f 2. I think, therefore, that while it would not be advisable to appoint to any office a member of such a Post, yet, after the Comrade is appointed, he is not rendered ineligible to retain his office by his Post lapsing into an undisciplined condition. J If it should be necessary to revoke the charter of the Post, the Comrade holding office should be required to connect himself with another at once. *See Section 6, Article I, Chapter V, at close of Opinion VII. fSECTION 4, ARTICLE IV, CHAPTER II. SECTION 4. Members of disbanded Posts, who were in good standing at the time of such dissolution, shall receive from the Assistant Adjutant- General of the Department transfer cards, which shall have full force. JSee Opinion XII. 28 OPINIONS OF JUDGE ADVOCATES-GENERAL OPINION XIV. OCTOBER 19, 1871. 1. Inspectors Provisional Department Commander can not appoint Department Inspectors. 2. Inspector-General may nominate Assistants. Can a Provisional Department Commander appoint a Department Inspector? 1. I think that Article X, of Chapter V, Rules and Regula tions, limits the staff of a Provisional Commander to the officers there named.* It seems to be contemplated that the duties of inspection should be performed by the Aides, foui of whom would be able to attend to any number of Posts less than ten. 2. The Inspector-General may nominate as many Assistants as he thinks necessary ; one for each provisional Department, as well as for regularly constituted Departments, if he chooses. | OPINION XV. NOVEMBER 6, 1871. 1. Ballot A personal matter Should not be used in malice. 2. Opportunity for stating objections to a candidate should be given. Has a comrade the right to black-ball a worthy dis charged soldier on purely personal grounds? i. The mode of election by ballot gives to every Comrade voting an unquestionable right and opportunity to express his *See Article X, Chapter V, with Opinion XXVII. t SECTION 3, ARTICLE V, CHAPTER V. SECTION 3. Assistant Inspectors-General shall be appointed by the Com- mander-in-Chief, on the nomination of the Inspector-General. They shall make inspections of the various staff officers of the Departments whenever required, and shall report the result of the same immediately to the Inspector- General, and shall perform such other duties as may be required of them by the Commander-in-Chief or Inspector-General. OF THE GRAND ARMY OF THE REPUBLIC. 29 opinion. The ballot should be conducted so that no Comrade s vote should be known, and he can not, from the nature of the case, be called in question for exercising his choice. No Com rade ought to be influenced by personal dislike or malice, but should decide in every case upon his honest convictions. Yet, if he does not, he can not be restrained of his privilege. He must answer to his own conscience. 2. The Regulations prescribe that before the vote is taken an opportunity shall be given to any Comrade to state his objections to the candidate ; and if this is complied with the friends of the candidate will ordinarily withdraw his application if it becomes probable that he will not be elected ; or, if invalid objections are presented, after friendly discussion they may be removed.* OPINION XVI. NOVEMBER 26, 1871. 1. Post may exclude suspended members from the Post. 2. Insignia of rank Badge. 3. Opening ceremonies Head-coverings. 1 . Has a Post the power to exclude suspended mem bers from its meetings? 2. May members of the Grand Army on parades appear with the insignia of rank worn in the service? 3. Does the Ritual contemplate that Comrades shall remain covered during the ceremonies? 1. The general Regulations prescribe that a suspended mem ber is not eligible to office, and has no vote. Any regulation adopted by a Post on the subject, not inconsistent therewith, will be valid. Such By-Law may provide that suspended Com rades be debarred the privilege of attending the meetings of the Post. 2. By reference to the published proceedings of the fifth annual meeting of the National Encampment, page 36, it will *See Section 4, Article II, Chapter II, after Opinion XI. See, also, Opinions LXXXIX and CXXXVIII. 30 OPINIONS OF JUDGE ADVOCATES-GENERAL appear that the clause in Chapter V, Article IX, Section i, allow ing the use of the uniform worn in the service was not stricken out, but that such uniform is still one of the optional uniforms of the Grand Army. If it is worn, the accustomed insignia of rank will be retained. If civilians clothes or the blouse are chosen, no insignia of rank having yet been adopted by the National Encampment, there is no badge of Grand Army rank suitable to be worn with them. 3. There is no regulation which answers this question pre cisely. My own construction of the language of the Ritual is that it does contemplate the use of forage caps in the opening ceremonies. Whether Comrades who have only their ordinary caps or hats should remain covered or not, is rather a question of taste or propriety than law. If the object of wearing the forage cap is to give uniformity to the line, and as much of a military appearance as possible, I think that object would be nearer attained by not wearing different styles of head-coverings when the forage cap is not supplied. But I should defer entirely to the judgment of the Inspector-General upon this point.* *NoTE. The question of uniform and badges is now definitely settled by the National Encampment, in Rules and Regulations, to-wit: ARTICLE IX, CHAPTER V. UNIFORM BADGES. SECTION I. Departments may adopt a uniform for their own members. Where no uniform is prescribed by a Department, each Post may adopt one. SEC. 2. The membership badge of the Grand Army of the Republic shall be in form and material that adopted at the special meeting of the National Encampment in New York, October 27, 1869, and no other shall be worn as the badge of the Grand Army except that prescribed for officers in Section 3, and for past officers in Section 4. SEC. 3. The badge designating official position in the Grand Army of the Republic, adopted at the meeting of the National Encampment, held in New Haven, May 14 and 15, 1873, may be worn by all National, Depart ment and Post officers in the Grand Army of the Republic, when on duty or on occasion of ceremony, and no shoulder-straps or other badge shall be worn to designate official position in the Grand Army of the Republic. SEC. 4. Past officers may wear the strap of the official badge proper for the highest position they have held in the Grand Army, with a clasp upon the ribbon proper for such position, beneath the bronze eagle of the mem bership badge, to which the whole shall be pendant. OF THE GRAND ARMY OF THE REPUBLIC. 31 OPINION XVII. DECEMBER 5, 1871. i Scouts in the Union army not necessarily eligible to membership. Is a person who has served as a scout in the Union army during the entire war of the Rebellion, eligible for admis sion into the Grand Army of the Republic? i. I do not understand that scouts were generally attached to the army for definite terms of enlistment, or that they were actually mustered into and out of service in such a way as to make them strictly a part of the army. Civilians were usually employed for special services, and then paid and discharged. Sometimes enlisted men were detailed, or volunteered for such work. In the latter case, of course, no question could arise as to their eligibility to membership. But in case of civilians who were employed temporarily as scouts, or who were hired as de fectives at home, I can not see that our Regulations admit them. The matter is, perhaps, of sufficient importance to be laid be fore the National Encampment for their construction of the law. Until they take action, I would advise that such applications be not received. OPINION XVIII. DECEMBER 29, 1871. i. Department Delegates Terms of Rights of Certificates of. The question appears sufficiently from the Opinion. i. I am of opinion that the expression " the year following," in the Regulations, Chapter III, Article II, Section 3,* taken * ARTICLE II, CHAPTER III. The Department Encampment shall consist of : First The Department Commander, all Past Department Commanders who have served for a full term of one year, or who, having been elected to 32 OPINIONS OF JUDGE ADVOCATES-GENERAL in connection with the rule that the election of delegates shall take place at the last Post meeting "in each year," and the Regulations, Chapter II, Article VII, Section i,* that the Post election shall take place " at the last stated meeting in De cember," refers to the calendar year, beginning on the first day of January, and, consequently, that the term of office of dele gates to the Department is from January i to January i. Members-elect of Department Encampments, therefore, are entitled to all the privileges and liable to all the duties of that fill a vacancy, shall have served to the end of the term, so long as they re main in good standing in their respective Posts, and the other officers men tioned in Article IV, Section 2 of this Chapter, and all Past Post Command ers, so long as they remain in good standing in their respective Posts, in such Departments as have so decided by a two-thirds vote at an annual meeting. Second All the Post Commanders, for the time being, throughout its jurisdiction (in the absence of the Post Commander the Senior or Junior Vice-Commander may represent the Post) ; and Third Members selected by ballot by the several Posts in such ratio as may be determined "by a two-third vote of the members present and voting^ at any previous annual Encampment; but each Post, whatever its number, shall be entitled to choose at least one member. These elected members, and an equal number of alternates, shall be chosen at the time and in the mode of electing officers of Posts, at the first stated meeting in December, and shall serve during the year, commencing on the first day of January following. Any vacancies that may occur shall be filled in the same manner as provided in Chapter II, Article VII, Section 3. They shall be furnished with credentials signed by the Post Commander and Post Adjutant, a copy of which shall be forwarded immediately after the election to the Assistant Adjutant-General of the Department. But all Posts in arrears for reports or dues shall be excluded, for the time being, from representation, either by Post Commander or otherwise, in the Depart ment Encampment. Fourth The number of representatives to which each Post is entitled shall be determined by the quarterly report last preceding the election. *ARTICLE VII, CHAPTER II. ELECTION OF OFFICERS. SECTION I. The Post officers (the Adjutant, Sergeant-Major and Quar termaster-Sergeant excepted), shall be elected at the first stated meeting in December, by ballot, unless a ballot be dispensed with by unanimous con sent. They shall be installed into their respective offices at the first stated meeting in January following. OF THE GRAND ARMY OF THE REPUBLIC. office on the first day of January next after their election in De cember. The provision that a copy of their credentials shall be forwarded, immediately after their election, to the Assistant Adjutant-General, is designed to afford him the means of making up the roll of the Department Encampment previous to the an nual meeting, and to facilitate the organization of the Depart ment Encampment when it meets. OPINION XIX. JANUARY 2, 1872. i. Assistant Adjutant-General to grant transfer cards When. 2. Disbanded Posts, Members of Transfer cards for. When a Post has voted to disband, and has surrendered its Charter, do its officers still retain the authority to grant transfer cards to members wishing to join other Posts? The question is decided by Chapter II, Article IV, Section 4, of the Rules and Regulations.* When a Post has voted to dis band and surrender its Charter, all the papers and property of the Post are to be turned over to Department Headquarters. If any of the members desire to join other Posts, the records of the Post, in the hands of the Assistant Adjutant-General, will show the standing of such members, and he will grant transfer papers to such as were in good standing, and who desire "it. OPINION XX. JANUARY u, 1872. Representatives National Encampment Department representation. If a Department has over 500 members and less than 1,000, how many representatives in the National Encamp ment is it entitled to? *See Section 4, Article IV, Chapter II, with Opinion XIII. 3 34 OPINIONS OF JUDGE ADVOCATES-GENERAL The meaning of Chapter IV, Article II, Section i, Paragraph 4, is, in my opinion, that 1,000 members in good standing shall constitute the unit of representation of a Department in the National Encampment, and that a final fraction of more than half of that unit that is, more than 500 members shall count as 1,000.* Every Department would, therefore, be entitled to the repre sentative at large ; and, if composed of between 501 and 1,500 members, to one representative in addition counting for repre sentation every 501 members to 1,500 members as 1,000, every 1,501 to 2,500 as 2,000, etc. In the case stated the Department would be entitled to elect one representative at large and one additional representative for the 501 members. As suggested by the Comrade proposing the question, the par agraph is not altogether lucid, but I think a strict construction of the whole section will support my opinion. OPINION XXI. JANUARY 15, 1872. Reports Supplemental should be made to show the true number of members in a Department in good standing for the quarter to which any report relates. The reports of a Department for the third quarter of 1871 exhibited many Posts in arrears and not reporting. If these Posts, or any of them, pay their dues and make reports to secure representation in the Department En campment, ought not the Assistant Adjutant-General of a L * PARAGRAPH 4, SECTION i, ARTICLE II, CHAPTER IV. Fourth Of one representative at large from each Department, and one representative for each 1,000 members in good standing therein, and one additional representative for a final fraction of more than one-half of that number; such representatives to be elected by the Department Encampment as provided in Chapter III, Article IX. Any Department having less than l,ooo members and more than 500 shall be entitled to one representative in addition to one representative at large. OF THE GRAND ARMY OF THE REPUBLIC. 35 Department to send a supplemental report for that quarter, and the Assistant Quartermaster-General to pay dues therefor? Would it be their duty to do so without special orders? I am of opinion that on the reception of any report from a Post after the consolidated report has gone forward, which would vary the footings of the consolidated report, the Department Commander should send a supplemental report, showing the true number of members in his Department in good standing for the quarter to which such report relates. No order to do so is necessary, but an order may be issued if it is neglected. Dues should be paid for the actual number when ascertained. NOTE See Opinion LV. OPINION XXII. JANUARY 29, 1872. i. Eligibility to Membership If a dishonorable sentence is revoked and an honorable discharge is granted, then the party thus discharged is eligible. 2. All persons eligible should not be elected to membership Care should be exercised. Is a cashiered officer of the army, who afterwards has the disability of the sentence removed by general order from the War Department, eligible to membership in the Grand Army of the Republic? 1. The answer to the question must turn upon the extent of the order removing the disability of the sentence. If the officer was granted an honorable discharge he is eligible to member ship, though previously he had been dishonorably discharged. So if a person once dishonorably discharged has the order cash iering him revoked, and he is reinstated in the army, he will then be eligible to membership. 2. It must be borne in mind, however, that we ought not to elect to membership all persons who are eligible to apply for it.* * Sections 2 and 3, Article II, Chapter II, with Opinion XI. See, also, Opinion XV. 36 OPINIONS OF JUDGE ADVOCATES-GENERAL The Post receiving an application should make proper inquiries in regard to the character of the applicant, and if there is any thing in his past record or present character which they deem sufficient to make him an unsuitable companion for themselves, they should reject the application. The Regulations place this power in their hands, and it is expected that they will exercise it for the good of the Order, with impartiality, and without personal feeling. The question in this case is generally stated, and I can, there fore, only answer in general terms. If the facts of the particular applicant for admission in the present case were detailed I might make my decision more specific. OPINION XXIII. FEBRUARY 3, 1872 1. Provisional Department Commander Must reside within the Department. 2. Post officers Can not forfeit office by absence No penalty can be affixed against them except by Court Martial. 3. By-Laws Post may provide penalties. 1 . Can a Comrade be appointed Provisional Comman der of a Department when he does not reside within the Department? 2. Can a Post provide by By-Law that an officer shall forfeit his office by absence from a certain number of meet ings? I answer the questions in their order: 1. I think that no Comrade residing out of the territorial limits of a Department is eligible to appointment to any Depart ment office. 2. The General Regulations fix the term of officers of Posts, and provide, further, that all charges shall be tried by Court Martial.* It seems a fair inference that a Post can not elect a *See Opinion I. OF THE GRAND ARMY OF THE REPUBLIC. 37 Commander to hold office during good behavior, or on condition that he will attend meetings, or with any such conditional limit ation. 3. I think they may, however, provide by By-Law that ab sence shall be punished by fine ; but this penalty on a Post Commander would have to be recovered through a Court Mar tial convened by the Department Commander. Continued neg lect of duties of the office would furnish ground for prosecution without any By-Law. OPINION XXIV. FEBRUARY 3, 1872. Dishonorably discharged members Re-admitted on reformation and with the approval of officer who approved the sentence. Can a person who has been dishonorably discharged from the Grand Army of the Republic be re-admitted, on reformation, by the Post of which he was a member? There is no provision in the Regulations on the subject of the re-admission of dishonorably discharged members. I should, therefore, hold the opinion that such a person, on reformation, might be admitted by the Post which discharged him, on a new application and elected as a recruit, such application being first approved by the officer who approved the sentence of the Court Martial. OPINION XXV. FEBRUARY 3, 1872. Commander-in-Cliief has no power to fill a vacancy in National Council of Administration. Has the Commander-in-Chief power to fill a vacancy occuring in the National Council of Administration, in the interval between its sessions? 38 OPINIONS OF JUDGE ADVOCATES-GENERAL The Regulations, Chapter IV, Article V, Section 3,* provide that vacancies in the National offices occurring during the year, shall be filled by the National Council of Administration. I can not imagine any necessity for filling a vacancy except when the Council are together, and then they can fill it themselves. The members of the Council have no duties except in their meetings. No doubt, in case of other officers who have duties to perform at all times, the Commander-in-Chief may detail a Comrade to act until the Council of Administration meet. I think, therefore, in this case the Commander-in-Chief has no power. OPINION XXVI. FEBRUARY 24, 1872. Posts Too late to reinstate a member after he has died One who has been dropped is no longer a member, and the Post has no power to remit his dues Post funds can not be used to reinstate a member. Can a Post reinstate, without payment of dues, a Com rade who had been dropped for arrearages, and who died after his name had been dropped? The power given to Posts in Section 3, Article IV, Chapter V,t to remit the dues of a Comrade six months in arrears, should be exercised, if at all, when the case is reported. It must be done by the Post of which he "is a member." It is too late after his connection with the Post is severed by death. Section 4 confers an entirely different power that of restoring to membership a former Comrade who had been dropped for non-payment of dues for a year. | That the powers are dissim- * SECTION 3, ARTICLE V, CHAPTER IV. SECTION 3. Vacancies occurring during the year shall be filled by the Council of Administration. f Section 3, Article IV, Chapter V, with Opinion II. t SECTION 4, ARTICLE IV, CHAPTER V. SECTION 4. If a Comrade shall be one year in arrears for dues, he shall be dropped from the. roll, and reinstated only by the Post which dropped OF THE GRAND ARMY OF THE REPUBLIC. 39 ilar, appears from the provision that the power to remit dues requires a two-thirds vote, while the power to reinstate a Com rade rests with a majority. When a Comrade is dropped in accordance with Section 4, he ceases to be a member, and the Post of which he " was " a member, has no longer any power to remit his dues. They must be paid cither by himself or some other person, as a condition precedent to his re-admission. I should consider the appropriation of Post funds to such a pur pose an unconstitutional use of its money. The present case would be decided by the fact that no dead person could be admitted to a Post, either as a recruit or by being restored to membership. OPINION XXVII. MARCH i, 1872, 1. A Provisional Department can be organized into a Permanent Department on the order o the Commander-in-Chief. 2. Where the Provisional Commander assumes to act and to organize the Permanent Depart ment without order of the Commander-in-Chief, his acts are illegal and void. 3. The Commander-in-Chief may issue an order, however, and ratify the act of the Depart ment Commander He has discretionary power in such cases. The Commander of a Provisional Department having organized ten Posts therein, requested of the Commander- in-Chief information as to "the manner of procedure neces sary to secure for the Provisional Department "recognition as a Department." i. In reply he was informed: "The permanent organization of a Department is by order of the Commander-in-Chief, calling a Department Encampment. * * * An order will at once him, by a two-thirds vote, by ballot, of all the members present, and voting, at a regular meeting, upon payment of a sum to be prescribed by a two- thirds vote of the members present, and voting, at a regular meeting; said sum not to be less than the amount charged as muster-in fee. If elected, he shall be re-obligated : Provided, That he may be re-obligated in any Post within whose jurisdiction he may reside, upon the written request of the Pos.t reinstating him. 40 OPINIONS OF JUDGE ADVOCATES-GENERAL be issued upon your naming the time and place for the assembly of the Department Encampment, and forwarding the Charter fee of $20, required by the Regulations. This matter will receive prompt attention at National Headquarters in order that there may be no delay in the organization." 2. In reply to the next letter, saying, Please hurry up Charter," he was informed that "the order for Department En campment can not be issued before a full and complete report is received from your Department." This condition was rendered necessary by the failure of the Provisional Commander to for ward reports and dues for the quarter next preceding, which had meanwhile become due. Nothing further was received until the receipt of a communi cation informing the Commander-in-Chief that the Department had been permanently organized, without orders from the Com mander-in-Chief. Was the action of the Provisional Commander in accordance with the Rules and Regulations? Is it valid? What is the power and duty of the Commander-in-Chief in the matter, according to the Rules and Regulations? 3. The mode of organizing a Permanent Department is pre scribed in the Regulations, Chapter V, Article X, Section 2.* * ARTICLE X, CHAPTER V. PROVISIONAL DEPARTMENTS. SECTION I . In States or Territories where the Grand Army of the Re public is not established, the Commander-in-Chief may appoint, and cause to be mustered in, a Provisional Commander, who shall appoint with the approval of the Commander-in-Chief from Comrades of the Grand Army of the Republic, a Senior and Junior Vice-Commander, an Assistant Adjutant- General and an Assistant Quartermaster-General. He may appoint four Aides-de-Camp. The Provisional Commander, the Senior and Junior Vice- Commanders, the Assistant Adjutant-General, the Assistant Quartermaster- General, and five Comrades selected by the Provisional Commander, shall constitute the Council of Administration. The officers thus appointed shall have for the time being all the powers and duties of Permanent Department officers, and make returns in accordance with Article II of this Chapter. SEC. 2. When six Posts are organized in any Provisional Department the Commander-in-Chief shall order a meeting of a Department Encampment. When so assembled it shall effect a permanent Department organization. OK THE GRAND ARMY OF THE REPUBLIC. 41 The order for organization must be issued by the Commander- in-Chief. The action of the Provisional Commander is, there fore, illegal and void. The further question. "What is the power and duty of the Commander-in-Chief in the premises? " is not so easily answered. He has the power to declare the law, and to remove and Court Martial the Provisional Commander who has violated it; but whether he should exercise that power in the present instance depends upon how such action will affect the interests of the Grand Army. If the act of the Department Commander was a perverse and arbitrary exercise of authority not delegated to him, he should be punished, and his action declared void ; but if it appears that he took the letter from Headquarters as approving the idea of the organization, and innocently went beyond his power, the Commander-in-Chief may ratify the action now. Either course will be legal, and the character of the Provisional Department Commander would furnish a reason for deciding one way or the other. If the Commander-in-Chief issues an order ratifying the act of the Department Commander, as he has entire discretion in the premises so to do, that will put the Department on a legal foundation. I can not presume to say what is best to be done in the prem ises. The power is clear. The expediency of using it is for the Commander-in-Chief to decide upon. OPINION XXVIII. MARCH 16, 1872. Commander of Post may require application for a transfer paper to be reduced to writing. Can the Commander of a Post require an application for a transfer paper to be made in writing? It is a general rule of parliamentary law to require any motion to be presented in writing, at the suggestion of the presiding officer or of any member. The meetings of Posts are governed, in the absence of express regulations, by the general principles of 42 OPINIONS OF JUDGE ADVOCATES-GENERAL deliberative bodies. I think, therefore, the Post Commander has discretionary power to require such an application as the question relates to, to be reduced to writing before entertaining it.* OPINION XXIX. APRIL 2, 1872. It is the duty of the Commander of a Post to grant a transfer or withdrawal card to a Comrade in good standing when it is applied for at a meeting of the Post. Has a Post Commander authority to transfer or discharge Comrades without a vote of the Post upon the application? The Regulations make it the imperative duty of the Com mander to grant a Comrade in good standing applying therefor at a meeting of the Post, a transfer or discharge.! A vote of the Post instructing the Commander not to do so would be void. The reason for requiring the application to be made at a Post meeting is not that a vote may be taken, but that the members may know of the application, and may state any legal objection to it. OPINION XXX. APRIL 15, 1872. 1. Post has no right to order the publication of any sentence of a Court Martial. 2. No information as to the causes or means of the rejection of applications for membership shall be divulged. If a Post Court Martial a Comrade, can they reveal the sentence to the outside world, or can the injunction of secrecy be removed if the Post vote to do so, and the case be exposed to people generally? * Section 2, Article IV, Chapter II, seems to make either a verbal or writ ten request sufficient on the part of the applicant. See the section referred to, with Opinion III. fSee Sections 2 and 3, Article IV, Chapter II, following Opinion III. OF THE GRAND ARMY OF THE REPUBLIC. 43 1. It has not been our practice to divulge any of the pro ceedings of Posts, except the names of officers elected. And although there is no direct injunction of secrecy in regard to the sentence of Courts Martial, the spirit of our regulations is against such publication. It seems wrong that any punishment which we inflict should extend beyond our Order. I do not think we have any right to divulge to the world any information concerning a man s character which we have obtained by means of his membership in the Grand Army. 2. The Regulations do prescribe that no information as to the causes or means of the rejection of applications for mem bership, shall be divulged,* and I think the same reason would forbid the publication of any sentence of a Court Martial. I am of opinion, therefore, that the Post has no right to order such publication. OPINION XXXI. APRIL 15, 1872. A woman who has served as Daughter of a Regiment does not come within the class of persons who are eligible to membership in the Grand Army of the Republic, and the action of a Post in admitting such an one would be illegal and void. The question is proposed, whether a woman who served with the First Regiment, Rhode Island Detached Militia, as Daughter of the Regiment, and who received a dis charge in ordinary form from the service as Daughter of * ARTICLE XIII, CHAPTER V. SECTION I. The Ritual and unwritten forms of the Grand Army of the Republic, the names of persons causing the rejection of candidates for membership, or any information as to the cause or means of such rejection, shall be kept secret ; but any part of the proceedings of Post Encampments may be published, if ordered by vote of Post, approved by the Department Encampment, Department Commander or Commander-in-Chief, and any part of the proceedings of a Department Encampment may be published if ordered by the Encampment or Department Commander, or Commander- in-Chief; and any part of the proceedings of the National Encampment 44 OPINIONS OF JUDGE ADVOCATES-GENERAL the Regiment, and who was afterwards received as a mem ber of the Post of the Grand Army of the Republic, was lawfully mustered into our Order? I do not know of any position in the army, according to the Regulations, described as Daughter of the Regiment. Our Regulations prescribe as a condition for membership that the applicant shall have been a soldier or sailor in the army, navy, or marine corps of the United States, etc. Whatever a Daugh ter of the Regiment may have been, I do not understand that she was a soldier in the United States army. She may have done good service in the suppression of the Rebellion, as nurses in hospitals, and agents of the Sanitary Commission and Chris tian Commission, and many patriotic citizens at home did, but as she does not come in the classes of persons whom our Regu lations make eligible to membership, I think the action of the Post admitting her was illegal and void. The discharge which was given her, I suppose, was a compli mentary testimonial to her patriotism, rather than a certificate that she had been technically in the service. NOTE See Opinion CIV. OPINION XXXII. APRIL 15, 1872. A Post may, at the request of a Comrade, inquire into the character of that Comrade and read the evidence to the Post. Is it proper for a Post by vote to collect and have read in open Post, evidence involving the character and reputation of a Comrade? may be published, if ordered by the National Encampment or Commander- in-Chief. SEC. 2. Any Comrade convicted of divulging any of the private affairs of the Grand Army of the Republic, or of violating any of the provisions of this Article, shall be dishonorably discharged. NOTE See Opinion XXXII. OF THE GRAND ARMY OF THE REPUBLIC. 45 The facts upon which this question arises are as follows : A Comrade having been indicted for larceny, and having pleaded guilty, was sentenced and committed to jail. He wrote to an officer of the Post of which he was a member, asking the aid of the Post to procure his pardon or relief. The Post, by vote, directed the Commander to collect in formation in the case. He wrote to the Comrade impris oned and the Sheriff of the county, and the replies to these letters were, by vote of the Post, read in open meeting. From this action of the Post the Comrade who asks the question appeals. I should have no hesitation in answering the general question in the negative. If any Comrade knows anything in the con duct of any other which makes him an unfit associate of the mem bers of the Post, he should prefer charges and have his knowl edge brought before a Court Martial in the form of evidence. But this case seems, as suggested by the Post Commander, an exceptional one. The Comrade here invites the inquiry of his Comrades into his conduct and circumstances by asking their assistance. He writes to them, confessing his guilt. I think that any right he may have had to object to the publication in Post meeting of evidence tending to convict him of crime was waived by his communication to them asking their interference, and certainly by his second communication, directed to the Ad jutant, and evidently intended by him to be shown to the Post. The objection that the same Comrades who heard this confession might be detailed to sit on a Court Martial for the trial of a Com rade is not so valid as the same objection would be to their sit ting on a jury in a common law court. In the first place the record of the conviction of the Comrade by the State court would supersede his written confessions as evi dence before the Court Martial,* and he would probably plead * SECTION 9, ARTICLE VI, CHAPTER V. SECTION 9. In case the accused is charged with an offense under Par agraph 3, Section I, of this Article, the record of his conviction by a court of competent jurisdiction shall be prima fade evidence of his guilt of the offense of which he is so charged. 46 OPINIONS OF JUDGE ADVOCATES-GENERAL guilty, as he did at first. And secondly, if he desired it, the Department Commander, under our Regulations, would detail a Court Martial from other Posts whose members were not ac quainted with the facts.* In the present case, therefore. I think the action of the Post was right. OPINION XXXIII. APRIL 20, 1872. Section i, Article VII, Chapter I, meaning of Post must pursue the mode provided in the Regulations Where Regulations are silent, Post may provide by By-Law; and where the Post does not choose a mode, the power is in the hands of the Post Commander. The question is proposed : What is the meaning of the expression "not otherwise provided for" in the clause of Chapter II, Article VIII, Section I, of the Regulations, t which makes it the duty of the Post Commander to detail * SECTION 7, ARTICLE VI, CHAPTER V. SECTION 7. Any Comrade ordered for trial before a Post Court Martial may request in writing to be tried by a general Court, assigning his objec tions to a trial by the Post Court. On receiving such request the Post Com mander shall forward the same to the Department Commander, with such indorsement as he shall see fit to make, together with the charges preferred. If the objections appear to be valid and well grounded the Department Commander shall order a general Court Martial for the trial of the case; but if, in his opinion, they should be insufficient, he shall return the request with an indorsement to that effect, and the trial shall proceed as if no excep tion had been taken. fARTICLE VIII, CHAPTER II. DUTIES OF OFFICERS. SECTION I. It shall be the duty of the Post Commander to preside at all meetings of the Post ; to enforce a strict observance of the Rules and Regu lations and By- Laws, and all orders from proper authority; to detail all officers and committees not otherwise provided for; to approve all orders drawn upon the Quartermaster for appropriations of money made and passed at a stated meeting of the Post; to forward the returns required by Article II, Chapter V; and to perform such other duties as his charge may require of him. OF THE GRAND ARMY OF THE REPUBLIC. 47 all officers and committees not otherwise provided for? Does it relate to officers and committees whose appoint ment is not provided for in the Regulations, or by the Post? The expression, in my opinion, imposes a sort of residuary or alternative power and duty upon the Post Commander. If the Regulations prescribe the mode of selecting a certain officer, neither the Post nor the Commander can pursue a different mode of appointment. If the Regulations are silent and the Post sees fit to provide by By-Law or by a vote in a particular case, it may do so ; but in case of the selection of a committee or the detail of an officer, when the Regulations are silent as to the method of selection, and the Post does not choose any method, the clause in question places the power and duty in the hands of the Post Commander. OPINION XXXIV. APRIL 20, 1872. 1. Post can not hold executive session. 2. Post has no executive powers. 3. Post can not exclude a Department officer. 4. Post may consult its own convenience in regard to admitting Comrades visiting from other Posts. The question proposed : Can a Post refuse to admit a Department officer to its rooms on the ground that it is holding an executive session? Can a Post exclude Com rades belonging to other Posts on the same grounds? 1. Our Regulations do not recognize any such thing as an executive session. The term is a misnomer when applied to any meeting, except a session of a legislative body, which possesses, also, certain executive powers like the power which the United States Senate has of confirming or rejecting certain appointments of the President, or its power of ratifying treaties, etc. 2. A Post of the Grand Army of the Republic has no execu tive powers, and, consequently, can not hold executive sessions. 48 OPINIONS OF JUDGE ADVOCATES-GENERAL 3. There may frequently come before a Post business which it would not care to have discussed by or before Comrades not members. In such a case, on the approach of a Department officer on duty, such business should be temporarily laid on the table, and the officer admitted. 4. Comrades from other Posts could not, however, claim the same precedence, and the Post would be at liberty to consult its own convenience about admitting them, with due regard, always, to the principles of courtesy and fraternity. OPINION XXXV. MAY 25, 1872.* 1. A Comrade dropped for non-paymnt of dues can not join a new Post as an initiate. 2. A Comrade who has been dropped for non-payment of dues can only be reinstated by the Post which dropped him. 3 . Can only pass from membership in one Post to another by transfer, or by honorable discharge. 4. Transfer card and honorable discharge Difference. 5. Comrade in arrears can leave his Post only by dishonorable discharge or by being dropped. Can a Comrade who has been dropped from the rolls of his Post, for non-payment of dues, join a new Post, as an initiate, without first obtaining an honorable discharge from the Post of which he was previously a member? Should a Charter be granted to a body of Comrades who desire to form a new Post, when such Comrades have been dropped from their old Posts for arrears of dues, and have not been regularly discharged therefrom? Can a Department Commander issue a Charter to form a new Post to members of an existing Post who are in arrears for their dues? i. As is suggested by the Comrade proposing the first two questions, the second is involved in the first ; and I answer both in the negative. Chapter V, Article IV, Section 4, decides the *See also Opinion XLII, CVIII, CXV, CXVI. OF THE GRAND ARMY OF THE REPUBLIC. 49 point.* The word "reinstated " in that section must signify re instated as a member of the Grand Army; and the Section pre scribes in effect, that such a person as it refers to can only rejoin the Order by being admitted through the Post which dropped him. The same answer must be given to the third question. Chapter II, Article I, Section i,t prescribes that a new Post shall be formed of persons "eligible to membership in the Grand Army of the Republic," evidently contemplating persons not already members. There are only two classes of persons who fulfill this requirement, former Comrades, honorably discharged, and per sons possessing the qualifications mentioned in Chapter I, Article IV, who have never been members of the Grand Army of the Republic.^ A Comrade can leave the Post to which he belongs, only by transfer, to join an existing Post ; by honorable discharge, which places him in the same relation to the Order which he occupied before he first entered it ; by dishonorable discharge by Court Martial, which obliges him to apply for re-admission, through the Post of which he was a member, with the approval of the officer who approved his sentence ; or by being dropped for non-payment of dues, when he can only be re-admitted to the Order by vote of the Post which formerly bore his name on its roll. A Comrade, in good standing, may obtain a transfer paper, if he wishes to join an existing Post, or an honorable discharge if he is to become a Charter-member of a new Post. A Comrade, who is in arrears, can only leave his Post by dishonorable discharge, or by being dropped from the rolls. In either case he is not eligible to join any other existing Post, or form part of a new one. *See Section 4, Article IV, Chapter V, at close of Opinion XXVI. t ARTICLE I, CHAPTER II. FORMATION. SECTION I. A Post may be formed by the authority of a Department Commander, or of the Commander-in-chief (where no Department organiza tion exists), on the application of not less than ten persons eligible to mem bership in the Grand Army of the Republic; and no Post shall be recognized by the members of the Grand Army of the Republic unless acting under a. legal and unforfeited Charter. JSee Article IV, Chapter I, at close of Opinion IV. 4 50 OPINIONS OF JUDGE ADVOCATES-GENERAL OPINION XXXVI. JUNE 5, 1872.* 1. Court Martial United States Army Regulations to govern. 2. The Judge Advocate should be detailed with reference to his qualifications. 3. Applicants for memberships may be admitted without reference to their residence. Must a Post Court Martial be composed of three mem bers only, and must they be Post officers? If so, must the junior officer act as Judge Advocate? Should a Post muster applicants, who reside nearer any other Post, without first obtaining permission from the Post nearest the residence of the applicant? 1. Our Rules and Regulations are silent upon the points sug gested by the first question. f They must, therefore, be decided by military usage and United States Army Regulations. In regard to the constitution for the Court, it may be said that our universal practice has been to consider any Comrade eligible to any office. Details for Courts Martial may, therefore, be made from any Comrade in the jurisdiction of the officer ordering the Court. There is no intimation in our Rules and Regulations that Post Courts Martial shall correspond to regimental Courts Martial in the army, or shall be differently constituted from our Department or National Courts Martial; and, I think, that the United States Regulations for the organization and govern ment of general Courts Martial apply to all Courts of the Grand Army alike. 2. It was usual, in the service, for the officer ordering the Court, to exercise a wide discretion in deciding of how many * NOTE See Opinion I. f Changed by Rule 5, Court Martial, revising Article VI, Chapter V. Ap proved by the National Encampment, 1879, to-wit: Fifth. Post Courts Martial shall be composed of not less than five (5) nor more than nine (9) members and a Judge Advocate, all of whom shall be appointed by the Post Commander in a special order convening the Court. He shall name the Comrade who shall act as the President of the Court, and the other members of the Court shall rank before the Court according to their numbers or names in the said special order appointing the Court. OF THE GRAND ARMY OF THE REPUBLIC. 51 members the exigencies of the service would permit the Court to consist. I think that, in detailing our Courts, the same dis cretion may .be exercised. The Judge Advocate should be detailed with reference to his qualifications for performing his duties without regard to his official position. 3. Posts may admit properly-qualified applicants without regard to their residence. Unless such persons have made pre- vions applications for membership, no other Post has any juris diction in the matter. OPINION XXXVII. JULY i, 1872.* 1. Report of Investigating Committee on application must be presented in writing, and on the application. 2. Post can not act on the verbal report of an investigating committee. Tf so acted on, action is illegal. 3. Where verbal report has been acted upon, and applicant has been rejected, the ballot may be renewed before the time specified in the Rules and Regulations. Can a Post ballot on the application of a person for mem bership, when the application is not presented by the Com mittee of Investigation at the meeting when said ballot is cast? Can the verbal report of a Committee on Investigation be accepted and acted on by a Post, and the candidate there upon balloted for? If the above acts on a Post be illegal, can a candidate, who has been balloted for as above, and rejected, be bal loted for again before the time prescribed by the Rules and Regulations? The facts which give rise to the above questions are stated substantially as follows : i. An application was received and properly referred. At a subsequent meeting the committee stated, verbally, that they had *See Opinion XI, and Sections of Rules and Regulations there set out. 52 OPINIONS OF JUDGE ADVOCATES-GENERAL signed a favorable report upon the application, and had sent the papers by a Comrade to the Post Commander, who was absent from the meeting. The Senior Vice Commander, presiding, ruled that this statement was sufficient as a report, and put the question to a vote upon the applicant s admission. The appli cant was rejected. 2. Chapter II, Article II, of the Rules and Regulations, pre scribes very exactly the mode of proceeding upon an application for admission. Section 3 provides that the committee shall make their report at a meeting subsequent to their appointment, by endorsement upon the application ; and Section 4 continues, "after the reading of the report" etc. Clearly, therefore, the report must be in writing, and on the application, and must be presented in that form at the meeting. The committee need not be pres ent to offer it. It may be previously forwarded to the Adjutant, and read by him or the Post Commander at the meeting, but until it is in possession of the Post, in writing, it can not be acted on. It may be said that the production of the application with the report indorsed upon it, is only evidence that it has been made, and that the statement of that fact by the committee is just as good evidence of it, if it is not doubted or contradicted. This view would be pertinent if the application, after being filed with the report upon it, had been lost. It would, indeed, then be allowable to supply a new copy from memory. But a report required to be in writing, is not a report of the committee for the purpose of action by the Post, until it is actually filed and in their possession at a meeting. Until then, it is constructively in the hands of the committee, and is actually liable to be changed by them. 3. The first two questions, then, I answer in the negative, applying the limitation to the first, that the report may be sent in, as well as actually presented by the hands of the committee. It only remains to say, in answer to the third question, that the proceedings should be resumed at the point where the irregular ity occurred, that is, the report, indorsed on the application, should be filed ; and at any meeting of the Post, in the proper place in the order of business, the report should be read and a new ballot taken. OF THE GRAND ARMY OF THE REPUBLIC. 53 OPINION XXXVIII. JULY 19, 1872. A Comrade may use the initials " G. A. R." on his business sign. Has a Comrade the right to use, in assisting in his own private business, the initials G. A. R.?" The facts which suggest the question are as follows : A Comrade engaged in business had the letters " G. A. R." painted upon his business sign, and his Comrades in the Post objected to this use of the initials of the Order. This question can not be brought within the scope of our Reg ulations or discipline. It is merely one of good taste and pro priety, which must be settled by the individual, and where the largest liberty must be permitted. As a matter of right two of the objects of our Order are frater nity and chanty, which include the assistance of Comrades, and as the duty and privilege are reciprocal, which imply also the reception of aid and favor as much as the giving of them. If a Comrade in good standing and a worthy member of the Order, he may claim from others relief and help when he needs them, and with that object may make known his membership in an in telligible manner. It is difficult to see why he may not invite the patronage of his Comrades to a lawful business, when he does not ask charity, but gives an equivalent for the aid desired by publishing the fact of his connection with the Grand Army of the Republic, by painting the letters on his sign as well as by wearing the badge or presenting a traveling card or letters of introduction. A manufacturer of cigars, for instance, may call a certain brand the " G. A. R. ," and if, by so doing, he gets the patronage of his Comrades, he will have accomplished a fair and ingenious business device, and will certainly have expressed a very compli mentary opinion of the value of membership in the Order. So the composer of a piece of music may dedicate it to the Grand Army, or to a Post, or may name it with reference to the Grand Army of the Republic ostensibly as a compliment, but 54 OPINIONS OF JUDGE ADVOCATES-GENERAL really in order to promote the sale of it, and this would be a legitimate business transaction. I can not separate, in principle, these supposed cases from the one under consideration. In all of them the connection of the person with the Grand Army of the Republic is used by him to promote his business interests; and if his business is honorable, he profits by his membership without injuring the Order, his Comrades, or the public. OPINION XXXIX. SEPTEMBER 2, 1872. The holder of a transfer card not liable to dues. What is the condition of a Comrade, who, having taken a transfer paper to join another Post, has delayed two years to present it, and now wishes to rejoin the Post from which he took the paper? Should he pay the dues which have been assessed for two years past? The only provision of the Rules and Regulations on this sub ject are found in Articles III and IV of Chapter II. Article IV, Section 2, provides that until the reception of a Comrade who has taken a transfer paper, by some other Post, "he shall remain, for all purposes of discipline only, under the jurisdiction of the Post granting the transfer paper;" and Article III, Sec tion i, that "a member of any Post having a transfer card, may be admitted to another Post, by a two-thirds vote by ballot, after having his name proposed and referred, as in case of an applicant for membership," the number of ballots required to elect constituting the only difference in the reception of such a candidate from the admission of a recruit. There, is no provision requiring a transfer paper to be pre sented within a limited time, as perhaps there should be ; and the neglect of the Comrade, so long continued, is no violation of the Regulations.* The first paragraph quoted above seems *The validity of a transfer paper is now limited, by amendment to Chap ter II, Article IV, Section 2, National Encampment, May, 1874. See Opinion III. OF THE GRAND ARMY OF THP; REPUBLIC. 55 to settle the question of dues. The payment of dues is not a part of discipline in the intent of that Section. The man s name must have been dropped from the rolls of the Post when his transfer paper was granted, and I think he stands in no other relation to it than the relation he occupies to any other Post which he might wish to join. I am of opinion that he should make application to be re-admitted under Section i of Article III, and that he should be proposed and voted for as there pro vided. His transfer papers should be forwarded with the appli cation, and will be conclusive evidence of the facts it recites. OPINION XL. SEPTEMBER 16, 1872. 1. New Charter should have been granted when districts were abolished. 2. The new Charter should contain only the names borne on the old one. A Post was chartered under the district system as No. 5, District No. 2, Department of . On the abolition of districts the Post received the number 17, and now de sires to have the Charter changed to conform to this num bering. Can this be done? and if so, should the names of those not now members be omitted? And what should be the date of the Charter? 1. It was a mistake on the part of the Department officers not to number the Post 17 originally, as all the Posts in the De partment should have been numbered continuously from the one first constituted, not beginning at number i in each district. 2. A new Charter should have been granted when districts were abolished, or as soon as the mistake was discovered, and there is no impediment to making the correction now. The new Charter should contain the same names as the original one, and should either be dated back to conform to the date of the form ation of the Post, or should refer to the fact that it is given as a substitute for one of that date, and to correct a mistake therein. Perhaps it may be better, since so long a time has elapsed, for the Post to retain their original Charter. 56 OPINIONS OF JUDGE ADVOCATES-GENERAL OPINION XLI. DECEMBER 7, 1872. Public entertainment can not be opened or closed according to the Ritual Ritual to be kept secret. Can a public entertainment given by a Post be opened and closed according to the Ritual? Chapter V, Article XIII, Section i,* provides that the Ritual of the Grand Army shall be kept secret. The request to divulge a portion of the work can not be granted without violating this law. OPINION XLII. DECEMBER 19, 1872. Comrades dropped for non-payment of dues, if the Post to which they belonged disbands, may be admitted to another Post on payment to the Department Commander the amount of their indebtedness. Certain Comrades were dropped from the roll of their Post for non-payment of dues. They now desire to re- enter the Grand Army, but, meanwhile, the Post to which they formerly belonged has been disbanded. How can they be restored to membership in the Order? So long as the Post was^[in existence from which these per sons were dropped, as stated in Opinion I (Opinion XXXV herein) of May 25, 1872, from this office, they could only re join the Order by being voted into that Post, and paying the dues which were in arrears at the time they were dropped. Chapter V, Article IV, Section 4. This is now manifestly im possible, and the state of facts is one not contemplated in that opinion. Do the Regulations preclude these persons from ever rejoining the Order? I think a fair construction of the Section will lead to the conclusion that it is intended to ap ply only when the Post still exists. If its prohibition is univer sal, then its object, which is generally to provide an equitable *See Opinion XXX. OF THE GRAND ARMY OF THE REPUBLIC, 57 mode of restoring Comrades who have been dropped, must fail in such cases as the present, through the dissolution of the means by which that restoration is to be effected. I think the Section was designed to be operative only when it could operate, viz. : so long as the means it provides are effective and attainable. It does not intend to cut off a person who has been dropped from rejoining the Order, but to facilitate his restoration. If we can so construe this Section that its main object and spirit shall be fulfilled in this contingency where the means it provides fail, we shall, I think, be observing it most faithfully, and shall be ad hering most closely to its true intent. After the dissolution of a Post, where can this power of re-admitting Comrades to the Or der be most reasonably supposed to reside? I think in the De partment which becomes the successor of a Post when it is dis solved, and which inherits its property and records. Let the applicants for re-admission, then, fulfill the requirements which this Section makes of them by paying into the Department treas ury the amounts they owed their Post ; and the Department Commander, in his discretion, may re-admit them to the Order and organize them into a new Post, or approve their application to join other Posts. By this procedure, the candidates will have done all that the Regulations require of them ; and the proper officer will have performed the duty of discrimination which belonged to the Post while it existed. NOTE See Opinions XXXV, CVIII, CXV, CXVI. See, also, Section 4, Article IV, Chapter V, at close of Opinion XXVI. OPINION XLIII. JANUARY 7, 1873. Obligation can not be read to recruits before it is administered. Can the obligation be read to recruits, consecutively, before being administered? The resolution of the National Encampment, passed at the ses sion of 1871, at Boston, adopting the present Ritual, prescribes 58 OPINIONS OK JUDGE ADVOCATES-GENERAL that after the receipt thereof, it shall be strictly conformed to in all respects, in the ceremonies of opening, closing and muster-in. No officer of the Grand Army has power to limit or alter this limit or alter this enactment. OPINION XLIV. JANUARY 14, 1873. Post can not surrender Charter contingently. Charter may be forfeited for neglect to hold monthly meetings. A Post, having paid all dues and forwarded all returns, votes to disband for one year, and forwards a copy of the vote to Department Headquarters. What is the duty of the Department Commander in the premises? He should inform the Post that the Rules and Regulations do not permit the surrender of a Post Charter, contingently, or for a limited time ; and when a Post Charter is surrendered, the provisions of Chapter II, Article I, Section 2,* must be com plied with to render such surrender valid. Should it appear doubtful, however, whether the Post ought to be continued, he may, if he thinks proper, call a meeting of the Department Council of Administration, and they may declare the Charter of the Post forfeited for neglect to hold monthly meetings. The first course, I think, will be preferable, as the Post seems to desire to dissolve legally. * SECTION 2, ARTICLE I, CHAPTER II. SECTION 2. No Charter shall be surrendered by any Post so long as ten members thereof demand its continuance ; nor unless a proposition to sur render the Charter shall have been made at a stated meeting at least four weeks before the time of action, and due notice given to every member of the Post. (See Section 4, Article IV) . OF THE GRAND ARMY OF THE REPUBLIC. 59 OPINION XLV. FEBRUARY 26, 1873. Application for discharge is asked. The Post must grant discharge if the Comrade is in good standing. Does Section 3, Chapter II, Article IV,* of the Rules and Regulations make it compulsory for a Post to grant a discharge? Is it necessary that the discharge be granted at once, or can it be delayed to afford opportunity for drawing up charges aginst the applicant? I think the intent of the Section is clear. A person who is "in good standing" is one who has committed no offense for which charges may be preferred. When the application is re ceived, the Section referred to reqires that it shall be continued to a subsequent meeting, for no other purpose than to ascertain the standing of the applicant, and to give opportunity to Com rades to prefer charges against him, if he has committed any offense against the Order. The discharge may be delayed long enough to give time for the preparation of charges, but not vexatiously, or without probable cause, or for an unreasonable time. If, after reasonable delay, no charges are preferred, it is com pulsory upon the Post to grant the discharge. OPINION XLVI. MARCH 24, 1873. A Post Commander who is a member of the Department Council of Administration, accused of an offense, tried by Court convened by Department Commander. Is it proper to suspend a Post Commander, who is also a member of the Department Council of Administration, * Section 3, Article IV, Chapter II, at close of Opinion III. 60 OPINIONS OF JUDGE ADVOCATES-GENERAL when accused by members of the Post of appropriating Post funds to his own use? The Department Commander should direct charges to be pre ferred if he is satisfied that there is any foundation for the accu- safions;* and should then suspend the accused until the finding of the Court. The charges in this case should be tried by a Court convened by order of the Department Commander. OPINION XLVII. APRIL, 11, 1873. M embership Eligibility Officers of revenue service not eligible to membership. Is an officer in the revenue service, who served during the war in that capacity, and part of the time on his vessel, in conjunction with vessels of the navy, in suppressing blockade-running, eligible to membership in the Grand Army of the Republic? The Regulations admit only those who served in the army, navy, or marine corps during the war. I do not think that either of these classes can be construed to include the revenue *SECTIONS 3 AND 8, ARTICLE VI, CHAPTER V. SECTION 3. All accusations shall be made in the form of charges and specifications, and shall be tried by Courts Martial. Courts Martial may be -ordered by Commanders of Posts or of Departments, or by the Commander- in-Chief, for the trials of alleged offenders in their respective jurisdictions. Members of Department Encampments and Officers of Department Staffs shall only be tried by Courts convened by order of the Department Com mander, or higher authority. Members of the National Encampment and officers of the National Staff shall only be tried by Courts convened by order of the Commander-in-Chief. SECTION 8. When charges are preferred against any Comrade holding office, the Department, or Commander-in-Chief, in their respective jurisdic tions, may suspend the accused from office. During the suspension of a Post Commander or Department Commander, the office shall be filled by the Senior Vice Commander. OF THE GRAND ARMY OF THE REPUBLIC. 61 service. The latter is a part of the Treasury Department, and its officers are merely the armed officers of customs. The regu lations for the collection of revenue and the prevention of smug gling, etc., are enforced by them on the seas exactly as they are by custom-house officers and United States Marshals on shore. The fact that a revenue vessel is detailed for extraordinary duty during a time of urgent necessity, does not alter the relation of its officers to the Government or attach them to the navy. NOTE See, also, Opinion XCVII. OPINION XLVIII. APRIL 17, 1873. Memorial Day Observance of Memorial Day is obligatory. Private circumstances may excuse a Comrade from the observance, but a Post that fails or refuses should be subjected to discipline. Where a Post fails to observe the day it is not obligatory on a member of the Post. The manner or form of the observance left to the Posts. Neither the Commander-in-Chief nor the Department Commander have any authority to prescribe a plan for the observance of Memorial Day. Is it the duty of Posts or Comrades to observe Memorial Day without any other authorization or direction than that obtained in the Rules and Regulations, Chapter V, Article XIV?* Is it discretionary with Posts and Comrades whether they shall observe Memorial Day? Would the failure of a Post to make arrangements for the observance of Memorial Day, as a Post, relieve any member of that Post from the duty of its observance? * ARTICLE XIV, CHAPTER V. MEMORIAL DAY. The National Encampment hereby establishes a Memorial Day, to be observed by the members of the Grand Army of the Republic, on the thir tieth day of May, annually, in commemoration of the deeds of our fallen Comrades. When such day occurs on Sunday, the succeeding day shall be observed, except where, by legal enactment, the preceding day is made a legal holiday, when such day shall be observed. 62 OPINIONS OF JUDGE ADVOCATES-GENERAL Do the Rules and Regulations leave the method of the observance of Memorial Day, and the arrangements there for, to the discretion of Posts and Comrades? Has the Commander-in-Chief or a Department Com mander authority to prescribe any plan of action by Posts in the arrangements for the observance of Memorial Day, or to interfere with the arrangement of any Post or Com rade for its observance, either as a Post by itself or in con junction with other Posts, or as Comrades individually? 1. I answer the first question in general terms in the affirm ative. I consider that the Rules and Regulations enjoin upon every Post and Comrade the duty of observing Memorial Day, and that this provision creates the duty, whether any orders are issued by Department or National authority or not. 2. The nature of the duty makes each Comrade necessarily the judge of how he shall perform it. It is analogous to the obligation which he assumes to relieve the wants of a needy Comrade or his duty to attend the meetings of his Post. Each of these duties will be acknowledged by a Comrade who feels his responsibility as a member of the Order. Yet, from the nature of the case, no Post can say what private circumstances are suffi cient to excuse a member from giving charity in any particular instance, nor whether he properly waives the obligations to at tend a meeting in favor of another duty which seems to him to claim the preference. In all these matters the Grand Army must leave the conduct of each Comrade to his own sense of right. In the case of a Post I think somewhat less discretion is allow able. Posts are organized, among other things, for just this pur pose. The perpetuation of the memory of our fallen Comrades, not only among ourselves, but in the grateful regard of the whole people, whose life they saved, by our annual processions to the resting-places of the heroic dead and the floral decorations of their urns, is one of the most prominent and beautiful objects of our Order, none the less important that it was not inaugurated till after the Grand Army had been some time in existence. I think, therefore, that a Post which should omit this ceremonial repeatedly, or for a frivolous cause, or which should deliberately OF THE GRAND ARMY OF THE REPUBLIC. 63 pass resolutions of contempt for the observance of it if such a thing can be imagined would be amenable to discipline by higher authority as properly as if it should fail for a long period to hold meetings, or in its capacity as a Post should commit any other act of insubordination. 3. If the Post, to which any Comrade belongs, were to fail to make arrangements for the observance of the day, I think it would not be obligatory upon such Comrade to engage in any public ceremonies in its observance. Yet, if inclination prompts him to join with some other Post, or to assemble with other Com rades, or alone to visit and decorate the graves of the fallen, such voluntary service will be a becoming expression of the sentiments which the Grand Army inculcates and fosters. 4. The Rules and Regulations prescribe the observance of the day by the members of the Order. The primary organization of the members is by Posts, and consequently, in the absence of specific orders or regulations, the duty first devolves upon each Post. It is generally the case throughout the country, that there is only one Post in each town or village ; and, therefore, the day has been usually observed by each Post in its own way. In cities, where there are more Posts than one, and where there are, perhaps, different cemeteries to be visited, it has been the cus tom, and an entirely proper one, for several Posts to unite vol untarily in this service. 5. The ordinary duties of a Department Commander relate to his Department as a whole. On occasions when the whole Department is ordered out, or assembles for any duty, he takes command. When a Post is assembled by itself, or when several Posts unite voluntarily, for the purpose of a parade, a reception, or a fair, or any such object, the Department Commander would hardly assume the direction of affairs. If one Post, or any num ber of Posts, were to assemble or combine for an illegal object, or one detrimental to the interests of the Order, the Department Commander would have the right, and it would be his duty, to interfere and stop such proceedings. Clearly, whatever right a Department Commander has in his own Department, the Commander-in-Chief has throughout the Order; and, if the Department Commander interferes in matters 64 OPINIONS OF JUDGE ADVOCATES-GENERAL relating to a Post in his jurisdiction, the Commander-in-Chief may, in his discretion, approve or revoke the order of the De partment Commander. I may add, in application of the foregoing principles to the facts which suggested the questions submitted, that no Depart ment Encampment, or Department Commander, has the power to order various Posts to send delegates to a committee, which shall control their action as Posts upon any public occasion, be cause First Such action is in effect forming a new organization, un known to our Rules and Regulations, and giving it a command which belongs to the senior officer present. Second Such action, where pecuniary expense is to be incurred under direction of such committee, is giving to an unauthorized body the power to levy a special tax upon the Posts concerned. Of course, any number of Posts, conveniently located for the purpose, may voluntarily combine for any lawful object, and may act, through a committee of their own choice, as they see fit, in securing their object, and in collecting the means for defraying the expense incurred. OPINION XLIX. APRIL 23, 1873. 1. Reports It is the duty of Adjutant-General or Assistant Adjutant-General to notify Depart ments or Posts of the failure to receive reports. 2. If reports were forwarded, and they miscarried, sender should forward copy. 3. Where report has been sent but not received, delegates may be admitted. The Rules and Regulations provide that returns and reports shall be forwarded to the Assistant Adjutant- General, or the Adjutant-General, as the case may be; what is evidence before an Encampment that this is com plied with? Is it sufficient evidence for representation, that they were mailed and addressed to the proper receiv ing officer, or must the said officer testify to their receipt ; or, if he certifies they were not received, does the testi mony of any subordinate officer, proper to make returns, OF THE GRAND ARMY OF THE REPUBLIC. 65 that they were made out, signed, addressed and mailed to the proper person, entitle them to delegates; and is it a complete compliance with Articles of Rules and Regula tions? i. It is difficult to lay down an exact rule for all cases. If a report should not be received at Headquarters, soon after it was due, it would be the duty of the Adjutant-General, or Assistant Adjutant-General, to notify the delinquent Department or Post that such a report had not been received ; and a Post or Depart ment Commander, who had made out and mailed a report, would have a right to suppose that it had been received, unless he should get such a notification. If a report miscarried, and the sender was notified, he should forward another copy. At a meeting of an Encampment, the first evidence which would be presented to it, in regard to the reception of reports, would be the statement of the Adjutant-General, or Assistant Adjutant-General. This, if not contradicted, would be conclu sive. But, if the statement should then be made that the report was actually sent and no notice had issued from Headquarters of its non-reception, I think that the Encampment would con sider that the reporting officer had done all that was required of him, with the information he possessed, and the delegates would be admitted to the Encampment, it being understood, of course, that a new copy of the missing report should be forwarded as soon as possible. All our reports are made due, by Regulations, sufficiently long before the meetings of Encampments to give time to send for new copies, if they are not forwarded when due. And to entitle a Post or Department to representation, reports may be forwarded at the last moment before the En campment meeting, even, or sent in by the hands of the dele gates. NOTE See Opinions LXXXII and LXXXIII, as to representation. 66 OPINIONS OF JUDGE ADVOCATES-GENERAL OPINION L. APRIL 25, 1873. Eligibility to Member.-hip Clerk to an army Paymaster not eligible to membership. Opinion VI, rendered September 7, 1871, from this office, is not intended to apply to the case of a clerk of an army Pay master. I do not think that such service renders a person eligi ble to membership in the Grand Army. None of the reasons assigned for Opinion VI apply to his case. He is universally considered a civilian. He wears no uniform, is not mustered into the service, has no command, and is never ordered into action ; is liable to be discharged at any time, or can leave with out becoming a deserter. He is in a similar position to that occupied by a clerk in the Quartermaster s department, the Ordnance Bureau, or any Government office. In a vessel of the navy every person on board must participate in an engage ment, and consequently every one is assigned some post in action. A large number of persons connected with the army, more or less remotely, are required, by their duties in relation to property in their charge, to keep out of action. If the word " soldier" in Article IV, Section i, Chapter I, of the Rules and Regulations, has any significance, it seems to me to exclude this class of persons.* OPINION LI. APRIL 28, 1873. Department Encampment No member or delegate elected subsequent to the last stated meet ing in the year eligible to a seat.f Can a member, or alternate, elected by a Post subse quent to the last stated meeting in the year, be legally * See Article IV, Chapter I, at close of Opinion IV. fBy amendment to Section 3, Article II, Chapter III, National Encamp ment, May, 1873, vacancies in Department Encampment may be filled. See close of Opinion XVIII. SECTION 3, ARTICLE VII, CHAPTER II. SECTION 3. Posts may fill any vacancy in their offices at any stated meeting, notice of such contemplated action having been given at a previous meeting. OF THE GRAND ARMY OF THE REPUBLIC. 67 admitted to a seat in the Department Encampment as a representative of such Post, under existing Rules and Reg ulations? Before the passage of the present Rules and Regulations it was the practice, when representatives or delegates from any Depart ment were unable to attend the meeting of the National Encamp ment, to elect or detail Comrades from that Department to take their places. There were also instances in some Departments of Posts being formed after the beginning of the year, and elect ing Delegates to the Department Encampment. In some Depart ments they were admitted, and in others rejected. On the adop tion of the present Rules and Regulations, a uniform rule was established in both the representation of Posts and Departments. Chapter III, Article II, Paragraph 3, and Chapter IV, Article II, Section 2, in substantially the same language, provides that only the representatives, or alternates, chosen at the time and in the manner specified, shall be admitted to seats. The chance that vacancies may occur among the representatives is the only reason for allowing alternates to be elected. If vacancies could be filled when they occur, it would be entirely unnecessary to fill them thus in advance. I therefore answer in the negative. OPINION LII. JANUARY 6, 1873. t. Court Martial - Accused entitled to copy of charges and specifications When. 2. Proceedings shall be in accordance with United States Army Regulations. 3. Request for trial by Department Court must be made before the time fixed for the meeting of the Post Court. 4. Wnere the evidence is not furnished the record is incomplete, and a new trial may be ordered by Department Commander, or reviewing officer. 5. If new trial is ordered, Department Commander may order trial by Department Court. The following opinion upon the record of a Court Martial, and various questions raised by the reviewing officer in rela tion thereto, is inserted here, as some .of the principles dis cussed may find application in other cases : 68 OPINIONS OF JUDGE ADVOCATES-GENERAL HEADQUARTERS GRAND ARMY OF THE REPUBLIC, JUDGE ADVOCATE-GENERAL S OFFICE, January 6, 1873. i. The statement and correspondence submitted show that after receiving due notice of the time and place appointed for his trial, the accused willfully neglected to present himself and plead to the charges and specifications. On the day after the time appointed by the Court he addressed a note to the Post Commander, by whose orders it had convened, requesting a copy of the charges and specifications. These were not furnished him, but he was subsequently notified of the time and place to which the Court had adjourned. At the second meeting he did not appear until a late hour, when the Court was deliberating upon their sentence, having already found him guilty. Instead of requesting to be allowed to plead or to have further time given him for defence, he addressed the Court in an abusive manner, and was ordered, in consequence, to leave the room. The next day he addressed a communication to the Department Com mander, requesting a trial by a general Court Martial, and alleged that the proceedings against him were characterized by malice and unfairness. 2. The position taken by the Post Commander that the Rules and Regulations do not require that the accused should be fur nished with a copy of the charges and specifications, is perhaps correct when he does not request it ; but in this case the request was made, as appears from the correspondence, before any ac tion had been taken by the Court beyond organizing and entering the plea of not guilty. The Regulations prescribe that the mode of proceeding of Courts Martial shall be in accordance with Uni ted States Army Regulations and established military usage. Chapter V, Article VI. Section 4.* This provision would require that the request of the accused should be granted ; and if he had appeared at the adjournment of the Court, and there renewed his request, it would have been the duty of the Court to furnish the copy and give him time to plead and prepare his defence. But it does not appear that he ever acknowledged the authority of the Court, or informed them that he desired to know the Opinion I. OF THE GRAND ARMY OF THE REPUBLIC. 69 charges, or to appear and defend himself. So far as they were concerned their conduct in the premises was regular and legal. They were simply to inquire whether he had received notice as required by the Regulations ; and if they were satisfied that such was the case, they were to proceed as if he had been present and pleaded not guilty, which would imply that he knew what the charges were. It appears from the record that they did this. 3. The appeal to the Department Commander, and the re quest for trial by a Department Court Martial, was not intended to be made after trial by a Post Court, so as to give the accused two trials. It should be made before the time fixed for the meeting of the Court, or, at the latest^ at the time when the Court first meets before the opening of the case. If the defend ant, by his willful neglect, permitted the Court to take jurisdic tion, he must be considered as waiving his right to object to it. Nor does this interpretation of the Regulations unjustly affect the accused ; for any objection which he might make to the Court in respectful language, would be forwarded with the copy of the case for the review of the proper officer, and would influence his judgment of the sentence. 4. The record of the Court is then before the Department Commander for his examination and approval or disapproval, and orders in the case. 5. His first duty is to see that the proceedings appear to be regular, and then to decide if the findings are supported by the evidence. But in this record there is no report of the evidence. It is impossible, therefore, for the reviewing officer to say whether the findings are warranted by the testimony or not, and he can not say whether the sentence ought to be executed or not. This is a radical defect in the record. If the evidence can be supplied from minutes taken at the time, the record may be amended by its insertion, and signed again and forwarded for the reviewing officer s examination ; but if not, and it does not appear to me to be possible, then the sentence can not be carried into effect, and a new trial must be ordered. It is for the Department Com mander to say whether, if a new trial must be had, it will not be best, under the circumstances, to order a Department Court, 70 OPINIONS OF JUDGE ADVOCATES-GENERAL composed of Comrades who have not already formed an opinion upon the guilt or innocence of the accused, as the members of his Post must now have done. OPINION LIII. JULY 9, 1873. Eligibility to membership Person twice rejected by the same Post ineligible.* Does the last clause of Section 5, Chapter II, Article II, of the Rules and Regulations forbid the reception of an application for membership from a person who has been twice rejected by the same Post under the old organization? It is my opinion that it does forbid the reception of such an application. The question proceeds upon an erroneous assumption. It implies that there have been different organizations succeeding each other under the common name of the Grand Army of the Republic. The Order, in fact, has been one continuous body, with the same objects, and with substantially the same plan of operations. The only important changes in its system have been the intro duction and abandonment of grades of membership, and it will * By an amendment to Chapter II, Article II, Sections 5 and 10, National Encampment, May, 1875, the restriction forbidding a third and subsequent application has been removed. SECTION 5. If an applicant be rejected his admission fee shall be re turned, and he shall not be eligible to admission to the Grand Army of the Republic until six months after such rejection. He shall not be eligible to membership in any other Post without the consent, by a two-thirds vote, of the Post rejecting him. A second, and all subsequent applications, shall be in the same form and subject to the same conditions as the first. SECTION 10. The applications for membership of persons who were Com rades before the introduction of the grade system, but who never took the obligation of the third grade, shall be received and acted upon the same as if the applicant had never belonged to the Grand Army. OF THE GRAND ARMY OF THE REPUBLIC. 71 be observed that this system was embodied in one Article of the Regulations, Article V, Chapter I, editions 1869-70, and was eliminated by striking out that Article and making brief verbal alterations in a few other Sections. By that Article certain mem bers were given peculiar powers, and new recruits were placed for a time on probation. In May, 1871, by repeal of these pro visions, all members were again placed upon the same footing. Always, however, they were Comrades of the same Order, band ed together for the support of the same principles. A person who applied for admission to a Post of the Grand Army in 1867, desired to join the same society which an applicant in 1873 wishes to enter. Any particular Post of the Grand Army is the same body, and holds substantially the same relation to the Order which it held from the beginning. It is quite within the power of any voluntary association to say who shall be eligible to membership in its ranks, and to change its requirements at will ; and a person who applies for admission must be governed by the law as he finds it at the time of his application. In this case the prohibition has the same effect as if it had been inserted in the Section which prescribes the classes of persons who may or who may not be admitted. The clause in question first appears in the revision of the Reg ulations adopted at Cincinnati, May, 1869, at the same time that the system of grades was adopted. Previous to that time an applicant might present himself indefinitely at intervals of six months. At the same session the clause was adopted making ineligible those who at any time had borne arms against the United States. Until then a reconstructed Rebel, for anything in the Regulations, might have been proposed and admitted to membership ; but, as it seems to me, both the clauses adopted at Cincinnati have the similar effect of preventing the reception of either class of applicants after that time. 72 OPINIONS OF JUDGE ADVOCATES-GENERAL OPINION LIV. JULY 19, 1873. Eligibility to Membership One who deserts from his company or regiment and joins another, and from the latter organization receives an honorable discharge, is not eligible to mem bership. A. B. enlisted in the Union army during the Rebellion. Because of the persecution of his commanding officer he deserted his company, came North, and again enlisted in the Union army as A. C. He now makes application in his own name, A. B., for membership in our Order. Can we muster him? It is argued that he is admissible, as President Lincoln s proclamation pardoned all deserters, and men of the Post who served with A. B. justify his de sertion, and vouch for his subsequent honorable service under the assumed name. I may say in the beginning, that as I understand the law which I am called on to interpret, no oppression will justify a soldier s leaving the service he has sworn to perform and take a new en listment, with probably a larger bounty, at his will. I apprehend that the cases are very few, where, on application to the proper authorities, a man s wrongs would not be redressed or he be allowed a transfer into the company of another commander. And by orders from the War Department it was made the priv ilege of any enlisted man to take a transfer to the navy, whether his commanding officer approved or not. Our Rules and Regulations of 1868 expressly provided that " No soldier or sailor who has been convicted by Court Martial of desertion or any other infamous crime shall be admitted." When the revision of the Regulations was made, in 1869, it was considered that many soldiers were convicted of technical de sertion who had never had any intention of actually leaving their colors, and it was not thought best in the General Regulations to go behind an honorable discharge, except where the soldier had been in the Rebel service ; so this clause was omitted. This action practically left the case of all such persons who should apply for membership, to the decision of the ballot, and OF THE GRAND ARMY OF THE REPUBLIC. 73 allowed them to be mustered if they could win the suffrages of the prescribed majority of the Post. It must be remembered that not all persons who are permitted to become candidates ought to be received. Every Comrade in voting should express his opinion of the fitness of the applicant, and one who has been a deserter, though afterwards pardoned, or never apprehended or tried, would usually be coldly received by men who performed faithfully the difficult and dangerous duties as well as the easier ones the service imposed. The case of A. B. s eligibility, then, must be decided by the answer to the question whether he can present an honorable dis charge. If he can he may apply for admission. I do not go so far, in answering this question, as to say that the fact that his hon orable service and discharge were under an assumed name would render him ineligible. But when a discharge is presented that bears prima facie marks of fraud, we are warranted in inquiring how he obtained it, and what was his motive in concealing his true name. If we find, as in this case, that the name was as sumed to shield him from the punishment of a crime, which, if known, would have prevented him from receiving the discharge, it would be a misuse of language to call a discharge so obtained an honorable one. The proclamation of the President has nothing to do with the case. A pardon does not annul the crime ; it only waives the punishment. I think that A. B. is not eligible. NOTE See Opinion LXIX. OPINION LV. SEPTEMBER 29, 1873. Per Capita Tax Supplemental reports should be made showing whrit number have been rein stated, and the quarters for which dues have been paid to the Post. A number of Posts have been in the habit of suspending a large number of Comrades on the quarters ending March 3 i , June 30 and September 30, and reinstating them on the quarter ending December 3 i . Should not the respective 74 OPINIONS OF JUDGE ADVOCATES-GENERAL Posts pay the per capita tax to the Department for each quarter the Comrade was in arrears at the time he was re instated and placed in good standing? If a Comrade in arrears is reinstated and placed in good standing, is not that sufficient evidence that he has paid all arrears, the number shown in good standing upon the face of an Adjutant s roll, either by muster, transfer, or rein stated, being the basis of representation? On principles of general equity a Post should pay Department dues for any quarter on the number of members who pay Post dues for that quarter, whether the Comrades pay their Post .dues at the proper time or afterwards. If the payments to the Posts are made at any time after the quarterly report of the Post has gone forward, a supplemental report should be required, or the fact of the additional collections should appear in some subse quent report. The Regulations allow a Comrade s dues to be remitted in certain circumstances, and while they are so remitted the Com rade is not counted in representation, or in estimating the Depart ment tax. It does not seem to me that the Regulations require such remitted dues to be paid before the Comrade is reinstated, as upon that construction the remission would only be a post ponement of the time of payment, and this would be a small favor to a needy Comrade. I am rather of the opinion that the Regu lations permit such a person to be restored to the list of Comrades in good standing, when he recommences to pay his dues regu larly, so that if his dues are remitted for the second and third quarters of the year and he pays for the fourth, he may be re ported in good standing on the first of January succeeding. In some exceptional cases this may give a Post an advantage over others in its representation in the Department Encampment, but it would require a two-thirds vote of the Post in twenty-five cases, on the average, to gain one representative, and this result is hardly worthy of consideration. It can only be inferred, therefore, that a Comrade who is "reinstated" from kt suspended" has begun to pay his dues regularly, not that he has paid all that were in arrears. Yet as OF THE GRAND ARMY OF THE REPUBLIC. 75 he may have been reinstated on payment of arrearages, a report should be made by the Post at some convenient time in the year, say at the time the report for the fourth quarter is forwarded, distinguishing the different classes who have been reinstated during the year, and showing tor how many quarters while they were reported suspended, such Comrades have paid back-dues. I think this might be shown by a proper addition to the regu lar report, including the same information in regard to amounts received from Comrades dropped, as well as suspended and restored. NOTE. See Opinion XXI. OPINION LVI. OCTOBER 29, 1873. Court Martial Where the Department Commander as reviewing officer reverses the sentence of dishonorable discharge, there can be no appeal to National Headquarters. The question is proposed whether a Post who have ordered a trial of a member by a Post Court Martial, upon the conviction of the accused and the reversal of the sen tence of dishonorable discharge by the Department Com mander, the officer next superior to the officer ordering the Court, have a right to appeal to National Headquarters from the order of the reviewing officer? Appeals from acts of Post Commanders are given by Chapter III, Article VII, of the Rules and Regulations.* Such appeals are, I think, intended for the protection of members who are aggrieved by the acts from which appeal is taken. The course *ARTICLE VII, CHAPTER III. APPEALS. All members shall have the right of appeal, through the proper channels, from acts of the Posts or Post Commanders and Department Commanders or Encampments to the next highest authority, and to the Cormiiander-in-Chief, whose decisions shall be final, unless reversed by the National Encampment ; but all decisions appealed from shall have full force and effect until reversed by competent authority. 7(5 OPINIONS OF JUDGE ADVOCATES-GENERAL of appeal is from the decision of the Post Commander to the Post, thence to the Department Commander, thence to the De partment Encampment or Council of Administration, if either is in session, and afterwards, or if they are not in session, directly to the Commander-in-Chief, and from him to the National En campment or Council of Administration. The right of appeal from the original acts of a Department Commander or Department Encampment is nowhere given in express terms in the Regulations, but has been invariably claimed and allowed as a consequence of the relative subordination exist ing between the various officers and organizations of the Order. A right thus established and not defined by positive enact ment, must be construed with reference to the properties of the case, the nature of the question, and the regulations indirectly bearing upon it. If the appeal claimed refers to a subject which is considered in the Regulations, what they say about its treatment will throw considerable light upon the question whether an appeal is proper. The whole subject of discipline is treated in Article VI of Chapter V, and the provisions which apply to this case are con tained in Sections 4 and 6 of that Article, f No general regulations for the government of Courts Martial (which I consider to be the meaning of the words, "such fSECTIONS 4 AND 6, ARTICLE VI, CHAPTER V. SECTION 4. Courts Martial shall be governed in their mode of proceed ing and rules of evidence by the Revised United States Army Regulations and established military usage, and such orders as may be issued from Headquarters : Provided, however, That, in the willful absence of the ac cused, after due notice of the time and place of trial has been given to him, or left at his usual place of abode, the Court may proceed in all respects as if he were present and pleaded "not guilty." SECTION 6. No sentence of a Court Martial shall be carried into execution until after the whole proceedings shall have been laid before the officer or dering the same, or his successor in office, for his confirmation or disapproval and orders in the case ; and no sentence of dishonorable discharge from the Grand Army of the Republic, except by Court Martial convened by order of the Commander-in-Chief, shall be carried into execution until after the whole proceedings shall have been laid before the officer next superior to the one ordering the Court, for his confirmation or disapproval and orders therein. NOTE See Opinions; LXIV, LXXIII, CV, CXLV. OF THE GRAND ARMY OF THE REPUBLIC. 77 orders as may be issued from Headquarters,") have ever been promulgated ; so a Court is to be governed by military usage, and no intimation is given that the decision of the proper review ing officer is subject to appeal, any further than military usage gives one. In this case the proper reviewing officer passed upon the sentence, and returned the papers with his orders therein. Upon the principles of criminal law, civil and military, a de cision in favor of the accused is generally conclusive, and no appeal is granted to the prosecuting authority. From humane considerations objections by a prisoner are allowed, and if found valid, even where his substantial guilt is established, he is dis charged or a new trial is granted him. It would be introducing an anomaly into criminal practice to subject a prisoner to a sec ond trial even, after he had been acquitted by the ruling, though presumably incorrect, upon the merits of the case, of the author ity legally constituted to decide it. If the reviewing officer had approved the sentence of the Court in this case, and the accused had appealed from the sentence, would not the Post have urged that, in a case like the present, the Regulations had granted full power and authority to the De partment Commander to approve and execute the findings of the Court? No doubt, if the Department Commander was uncertain of the law, he might submit to National Headquarters such questions as occurred to him, and would be governed in his decision of the case by the answers he should receive, but this is in his dis cretion. He has not seen fit to do so, and has decided the questions which are raised and have never been decided by higher authority. I do not see that an appeal should be granted the prosecutor where one could not be claimed by the accused. 78 OPINIONS OF JUDGE ADVOCATES-GENERAL OPINION LVII. OCTOBER 29, 1873. Report of investigating committee, ballot and muster. Where the committee reports favorably without having seen the applicant, and the ballot has been taken, the ballot should be set aside by the Department Commander. The applicant not being mustered, has no claims. The committee on an application for admission to a Post reported favorably, and on ballot the applicant was elected. Immediately after, at the same meeting and before his muster, it was stated to the Post by a member not present at the time of balloting, that the candidate was an unfit person to become a member, and the committee then acknowledged that they had neglected their duty, and had not seen the candidate in person. Must the Post proceed to muster him, or what can they do in the premises ? The Post in electing the candidate acted on the faith that the investigating committee, as implied by their favorable report, had performed their duty. If they had known the truth, that they had not before them the information they had a right to pos sess before balloting, it is to be presumed that they would have postponed action. I think the Post ought not to be debarred from a true expression of their opinion and wishes by the negli gence of the committee. In ordinary cases I should hold an election to be conclusive, but it appears to me that the circum stances of this case are so peculiar as to call for the interposition of the Department Commander. I think he should order the report and vote to be declared void, and the committee, or a new one, to investigate and report at a subsequent meeting, and thereupon a new ballot to be taken. As the applicant has not been mustered, he can have no claims in the matter. NOTE See, also, Opinion LXXII. OF THE GRAND ARMY OF TUB: REPUBLIC. 79 OPINION LYI1I. JANUARY i, 1874 Rules and Regulations A By-Law requiring all members of a Post, when present, to vote on all questions unless excused, is valid. Electio i Where a vote is taken, and the Post Commander s attention is called to the fact, and the By-Law is not enforced, the vote is invalid, and the election is void. The question is referred to me whether the election of an officer by a Post which has in force a rule of order re quiring that all members entitled to vote shall vote on all questions (unless excused by a vote of the Encampment to be taken without debate), is valid, when all the members present do not vote, though none were excused, and atten tion was called to that fact before the result of the ballot was declared ? The rule of order is not inconsistent with the General Regula tions ; indeed it is an exact copy of one of the Rules of Order of the National Encampment. It is therefore binding upon the Post until is is repealed. If no notice had been called to the fact that some members did not vote, and the vote had been declared, it would have been a matter of inference that the rule had been complied with ; but the point was taken at the very time when the rule of order was intended to apply. The Post Commander should then have enforced the rule. The Posts have by this rule of order limited themselves to a cer tain prescribed way of expressing their decisions, viz. : by a full vote of all members present. The declaration of a vote by the presiding officer is a declaration in effect that the Post have ex pressed their will upon the question pending, as this rule prescribes they shall do. But it is admitted in this case that such was not the fact. I think the vote was invalid, and the election is void. A new election should be held to fill the vacancy as soon as possible under the Regulations. 80 OPINIONS OF JUDGE ADVOCATES-GENERAL OPINION LIX. JANUARY 22, 1874. Parliamentary Law In counting the votes cast to determine whether or not a candidate has a majority, ignore all ballots cast for ineligible candidates. At the annual election of Officer of the Day, there were three candidates nominated. Upon the first ballot there was no choice. A second ballot was ordered and the Com mander called the attention of the Post to the Regulations, Chapter II, Article VII, Section 2, requiring the person who had received the lowest number of votes to be drop ped.* The ballots were collected and counted, and the vote stood, E, T. C., 37; D. H., 36; and one ballot for the candidate who had received the lowest number of votes on the first ballot. The Commander ruled that the scattering vote should be counted in the aggregate, and that therefore there was again no choice. From this decision an appeal is taken. The Commander then ordered a third ballot, and after all had voted who desired, declared the polls closed. The ballots were counted by the tellers, and announced to the Commander, as follows : Whole number of votes cast, 74; necessary for a choice, 38. H. has 37, C. has 37. The Commander not having voted, then deposited a ballot for C, and declared him elected. From this action an appeal is taken by H. * ARTICLE VII, CHAPTER II. SECTION 2. In case of a ballot for officers, a majority of ail the votes cast shall be necessary to a choice. If there is no election on the first two ballots, the name of the Comrade receiving the lowest number of votes shall be dropped, and so on in successive ballots, until an election is made. OF THE GRAND ARMY OF THE REPUBLIC. 81 The questions raised are points of parliamentary law, and do not involve the Regulations of the Grand Army. I am of the opinion that according to the best usage in this country, the pre siding officer s decision was erroneous in both cases ; but having reached that conclusion in regard to the first ruling, it is unnec essary to discuss the second. In counting the number of votes cast to determine whether or not a candidate has a majority, the settled rule seems to be to ignore all ballots cast for ineligible candidates. Certainly this is the rule when the candidate is ineligible under the rules gov erning the assembly, and attention is called to the Regulations at the time the polls are opened. The contrary decision would put it in the power of the minority, who voted for the candidate who stood lowest, to postpone a choice indefinitely, and would defeat the object of the Regulation. The scattering ballot should not have been counted in the ki whole number of votes cast," and consequently E. T. C. received a majority and was elected. In Cushing s Law and Practice of Legislative Assemblies, Chapter VI, Paragraph 180, page 67, the following language is used upon the point in question : "In reference to elections in which an absolute majority is requisite for a choice, and in which consequently the whole num ber of votes received is first to be ascertained, votes given for ineligible persons must of course be excluded from the enumer ation, for the reason, that as the whole balloting would be void, and all the votes were excluded if they were all for such candi dates, it would be preposterous to enumerate such votes when they constituted a part only of any of the votes given in. If, in consequence of such exclusion, the result of the election would be different from what it would otherwise be, the whole proceed ing must, perhaps, be held void or valid, according as the elect ors have actual or presumed knowledge of the ineligibility of the persons for whom the excluded votes are given." The appeal from the first decision is, in my opinion, well ta ken, and the candidate-elect should be installed. 82 OPINIONS OF JUDGE ADVOCATES-GENERAL OPINION LX. APRIL 18, 18/4. Rules and Regulations Per Capita Tax Must be assessed on all alike, and once assessed can not be remitted, except as provided in the Rules and Regulatians. At the organization of a Post one of the Comrades who had rendered efficient services to the Grand Army was as sured by the Post that he should be exempt from clues, and no dues have been demanded of him to the date of the communication, November 7, 1873. At a Post meeting, held November 7, a Comrade insists upon the enforcement of that provision of the Regulations relating to the assess ment of a per capita tax, and that the remission to the Comrade is illegal. The Post urge, that inasmuch as the action of the Post was previous to the passage of the law, it was not intended to apply to the case, and would not affect the status of the Comrade. The Comrade is able to pay the taxes, but the Post wish to remit them as a compliment to him. By inspection of the Rules and Regulations, edition 1868, adopted at the first National Convention, it will appear that the imposition of a tax upon each member of the Post was obliga tory. Article XII, Section i, reads as follows: "The annual dues to a Post from each member shall not be less than one dollar." The Department in which this Post is situated was organized February 20, 1868, a little more than a month after the Regula tion was adopted, and the law did not then allow exemptions or remissions, except for the same causes as at present. But if it had been otherwise, any action of the Post must have been sub ject to the liability of being repealed or overruled by a new en actment or change of the Regulations by the National Encamp ment, and would have become void from the time such new Regulation went into operation. OF THE GRAND ARMY OF THE REPUBLIC. 83 The next year, 1869, the Regulations were thoroughly revised, and Section 3, of Chapter V, Article III, was then adopted in the same words which are now in force.* This Section gives to each Post the power to assess a per capita tax upon its members, and Section 3, of Article IV,f of the same Chapter, permits a Post to remit the dues of a Comrade who is unable, from sickness or misfortune, to pay them. The latter Section has also remained unaltered to the present time. The right to assess a tax is only granted on condition that it shall be a per capita one ; that is, that it shall be assessed upon each member ; and it is plain that no remission of a tax once assessed can be made, except for the causes and in the manner prescribed in the Section last above referred to. If a Post may exempt one of its members from the payment of a tax at its will, it may so compliment two or more, or all but one, and so may throw upon one unfortunate Comrade the whole expense of conducting it. So long as such a burden is unani mously submitted to no one complains, and practically there is no damage and no remedy ; but as soon as one Comrade, as in this case, calls for the enforcement of the law, it must be put in operation. Inasmuch as the Comrade has not refused to pay his tax, but the Post are in error in not demanding it, I would recommend that they begin the collection of the tax from the time when the error was discovered. * ARTICLE III, CHAPTER V. SECTION 3. Each Post, either by its By-Laws or by a vote at the last meeting in December, may assess a per capita tax upon its members, pay able in equal quarterly installments, on the first days of January, April, July and October. t See Section 3, Article IV, Chapter V, at close of Opinion II. 84 OPINIONS OF JUDGE ADVOCATES-GENERAL OPINION LXI. DECEMBER 5, 1874. Withdrawal Card Where a Comrade applies for a withdrawal card, receives it and retains it without any expression to the Post that he desired, not a withdrawal card, but a transfer card, he can not, after he has applied to the Post for admission again and has been re jected, claim it to be a mistake and demand a transfer card. Department Commander has no authority to interfere When. H. M., a Comrade in good standing of Post No. 13, Department of - , on the 3d day of July, 1874, addressed a communication to the Post in these words : "JULY 3, 1874. " To the Officers and Members of - Post, No. /j, G. A. R.: "I respectfully ask for my withdrawal card from your Post. Inclosed please find one dollar for dues for the quarter ending June 30, and fifty cents to pay for my card. Hoping it will meet with your approval, I remain yours in F., C. and L., H. M. P. S.-- Forward the card to me as soon as possible. H. M " The Commander of the Post understood this to be a request for a discharge, and on July 5th granted and forwarded such discharge. Some time afterwards H. M. applied to be re-admit ted to the Post, and his application was voted upon and rejected. It appears from the report of the Inspector, who was directed to examine this case, that H. M. intended by his first application to make a request for a transfer card, but after receiving a dis charge he was advised to regain his membership by a new appli cation. After his rejection, he applied to the Department Com mander to order a reconsideration of the ballot against him, on the ground that such ballot was "willfully, designedly conducted so as to oust him from the Post," and was the action of J. F. , a Comrade of the Post, " on an old political bias, for political pur poses." In the appeal certain charges against this Comrade are recited, apparently to substantiate the statement on which the appeal is founded, and to show personal hostility on his part. OF THE GRAND ARMY OF THE REPUBLIC. 85 On the first day of October, 1874, the Department Com mander, having received the report of the Department Inspector on the facts of the case, issued a special order "rescinding, an nulling, abrogating and declaring void" all the acts and doings of the Post in respect to the case, and restoring the said M. to membership in the Post, and directing the Post, upon his appli cation, to grant him a transfer card. From this decision the Post appeal to National Headquarters : First Because the appeal of M. was not forwarded through the proper channels. Second Because the Post were justified in the construction they put upon the application of M., he having been an officer of the Post for nearly three years, and competent to understand the proper terms in which to apply for a transfer card, if he desired one. T/^VT/ Because M. never informed the Post that they had mis taken the meaning of his application, or asked them to rectify the mistake, until after he had made a new application to be admitted and this application had been rejected. Fourth. Because M., in applying for re-admission, in the or dinary form, recognized the fact that he was no longer a member of the Order, and waived all right to have the former action of the Post reviewed. Fifth. Because a Department Commander has no power to annul a ballot, or to inquire into the motive of those who vote to reject an application. Sixth. Because the action of the Post can only be set aside on evidence that there was a conspiracy to defraud M., contrary to the Rules and Regulations, of which there is no evidence, 7, 8, 9, 10; because various statements in the appeal, reflecting on the Post, are untrue. Upon the full record of the case referred to me, I am of opin ion that the appeal of the Post must be sustained. I am reiterating the substance of a former opinion, and the ruling of a former Commander-in-Chief, in saying that when a Comrade of the Grand Army of the Republic deposits a ballot upon the question of the reception of an applicant, he is only 86 OPINIONS OF JUDGE ADVOCATES-GENERAL responsible to his own conscience for this exercise of his right of choice. From the very nature of the act he can not be called in question for it.* But it does not follow that every ballot is therefore valid. | The applicant may be ascertained to have been ineligible, or his application may not have been regularly before the Post for its action, and in such cases affirmative action would be invalid ; or he may have been already a member of the Post, and in such case a rejection would be harmless. If the Department Com mander were justified in annuling the discharge given to M., that act would necessarily avoid any subsequent proceedings of the Post on M. supplication to become a member. If he .were already a member, his application and the ballot upon it would be alike idle. *The first objection of the Post can hardly affect this case, as, if the Post are sustained in holding to the validity of the dis charge, M. was not a member of the Order, and might well ad dress directly any of its officers. They might, however, draw from this circumstance an inference that M. understood himself to be butside the Grand Army. 9 The case rests, then, upon the decision of the question, whether the 2, 3 and 4 points of the Post s appeal are well taken, and I have no hesitation in saying that I think they are conclusive. The first mistake arose on the part of the applicant. When he used language capable of two constructions, he gave the Post the right to act upon such of the two as they chose to place upon it, and it seems to me that they did take the more natural construc tion. A withdrawal, to be sure, might be absolute or only to join another Post ; but if designed to be limited, the limitation would naturally be expressed. A person who had been officially famil iar with the business of ^he Post for a long time ought to have qualified an application for leave to sever his relations with the Post, unless he desired to leave the Order altogether. J *See Opinion XV. f See Opinion XI. + For the distinction between "transfer card" and "discharge," see Opinion XXXV. OF THE GRAND ARMY OF THE REPUBLIC. 87 But, when the discharge was received, if it had been immedi ately returned with a request to have a transfer card substituted, no doubt on reasonable proof that a mistake had been commit ted, the Post would have corrected it, or perhaps, on application, the Department Commander might have compelled such correc tion. It does not appear, and it is expressly denied by the Post, that any such request was made. The discharged Comrade seems to have accepted the situation, and applied again for admission to membership. I can not look upon this act as anything else than an absolute waiver of any claim to be considered still a member, and of any right to challenge the previous action of the Post. Indeed, M. himself takes the same position in his communication to the Department Commander. He does not apply to have the transfer card substituted for a discharge, but asks "for a recon sideration of the final ballot." He desires to renew his attempt to join, in the same mode that proved unsuccessful before. I think, then, that the action of the Post should be sustained, inasmuch as if mistaken, the mistake was caused by the appli cant, and was acquiesced in by him in such a manner as to now estop him from appealing from it. It is not material to consider the various allegations of misconduct made by M., and denied by the Council of Administration. There is no evidence to sup port them, and the defence is prima facie complete : a demurrer would have been the more proper answer. OPINION LXII. JANUARY 20, 1875. Rules and Regulations A Comrade can only leave a Post honorably either by a discharge or transfer paper. Membership A person once a member of a Post can not absolve himself from his duties to that Post; non-attendance or non-payment of dues does not release him. Can not join a second Post until released from the first. G. W B. joined Post No. 3, Department of , April 7, 1871; was reported "reinstated from suspended," June 30, 1872; reported January 7, 1873, as eight months 88 OPINIONS OF JUDGE ADVOCATES-GENERAL in arrears; no action taken till March 27, 1873, when, having received notice, neglecting to pay his dues, he was suspended. It appears that he never attended a meeting of the Post after his muster, and that he did not take the new obligation when grades were abolished. Having been informed, as he says, that his name was dropped from the rolls of Post No. 3, he applied, in the usual form, to join a new Post, No. 16, and was admitted and reinstated therein September 25, 1874. Post 1 6 having subsequently learned the fact of his former connection with Post 3, applied to that Post for information of his standing, and proposed the question of his status to the Department Commander. Upon refer ence of the case to him, the Department Judge Advocate submitted his opinion as follows : HEADQUARTERS DEPARTMENT OF - , G. A. R., November 6, 1874. " COMMANDER : I have the honor to submit the following opinion, in answer to the case presented by Post No. 16, Grand Army of the Republic. "The facts as presented are as follows: G. W. B., in 1870 or 1871, was duly mustered into Post No. 3, did not attend any of its meetings, but the Post has never taken any official action in his case, and he has never been discharged therefrom. That afterwards, and while still a member of said Post, he was mus tered into Post No. 1 6, and is now in the anomalous condition of being an apparent member of two Posts. By reference to Chapter II, and Article II, Sections i to 7,* Articles III and IV, of Chapter II,f it will be seen that when a person once becomes a member of our oganization, he does not cease to be one except he and his Post, acting together, shall, in a regular man ner, absolve him from the duties to that Post ; that mere non- attendance or non-payment of dues do not relieve him from its * See Opinion XI. f See Opinion III. OF THE GRAND ARMY OF THE REPUBLIC. jurisdiction over him. No\v, Comrade B. is still a member of Post 3. and his muster into Post 16 is irregular and voidable. He, or Post 16, or both together, must apply to Post 3 for their consent to relinquish their jurisdiction over him, and, with this, the Commander will issue the necessary dispensation for Comrade B. to become a full affiliated member of Post 16. All of which is respectfully submitted in F., C. and L. , L. N. F., Jui/ge Advocate." Post 16 transmitted a copy of this Opinion to Post 3, and requested a dispensation from Post 3, allowing the muster of B. in Post 1 6. In reply, Post 3 voted to grant B. a transfer card on the pay ment of accrued dues for one year ($4.00). Post 16 now appeals from the decision of the Department Commander ap proving the Opinion of the Judge Advocate, taking the ground that B., having been mustered into the Grand Army of the Republic before the present work was adopted, ceased to be a member January i, 1872, because he did not take the new obli gation before that time ; that he was then as fully separated from the Order as if he had never joined ; that he was not considered a member by Comrades of Post 3 ; and that these features of the case were not considered by the Judge Advocate in his Opinion. They further remark that they can not see the appli cation of the reference s to the Regulations contained in the Opinion. It is evident that the citation of the Regulations was incorrectly copied by some one, in the Opinion sent to the Post. The Reg ulations are plain enough, however, on the points decided by the Judge Advocate. If B., when he applied for admission into Post 16, was in the condition simply of a Comrade who had been dropped from the rolls of Post 3, he could only be reinstated in the Grand Army through Post 3. Regulations, Chapter V, Article IV, Section 4. See, also, Opinion I. Judge Advocate-General s office, May 25, 1872,* and Opinion XLII, December 19, 1872. * Opinion XXXV, of this hook. See, also. Opinions CVIII, CXV, CXVI, on same questions. 90 OPINIONS OF JUDGE ADVOCATES-GENERAL This appears from the records to have been his position. But it is objected that the adoption of the new work gave the Com rade the choice either to come forward and take the new work, or by neglecting to do so for a certain time, to discharge himself from the Order and all his obligations to it. If such was the re sult of his neglect, he did place himself outside the Order, and could not be affected by the action of the Post suspending him, or debarred from joining any Post which would vote him in. The system of grades was adopted May, 1869, and abandoned May, 1871. A resolution was adopted by the National Encamp ment at the latter date, allowing all former members of the grades of recruit and soldier to take the new obligation at any meeting of their Posts at which they might present themselves, and con tinuing the membership of Comrades of the third grade without requiring of them any new obligation. Proceedings of the Na tional Encampment, 1871, page 46, General Order No. 3, Head quarters Grand Army of the Republic, New York, June 14, 1871. In this resolution no time is limited within which the election must be exercised. The Comrade might have appeared at any meeting of the Post, before he was dropped for arrears, and have taken the new obligation. His neglect up to that time had not deprived him of his membership. He had made and could make no choice which would preclude him from coming in when he saw fit. He was then, to all intents and purposes, in the con dition of a Comrade who had not received a new countersign, but was entitled to have it communicated to him on application. The Regulations then, as now, provided a method of leaving the Post if he desired- that is, by asking for a discharge or trans fer paper. His option, then, was to take the new obligation and remain in the Post in full membership, or to receive a discharge or transfer. He had never exercised this option, and was still liable to pay dues when he was dropped from the rolls. His ad mission to another Post was contrary to the Regulations, and void. The recital, in his application, that he had not made pre vious application to join any Post, was untrue ; or, if that was omitted, the mustering officer neglected his plain duty. OF THE GRAND ARMY OF THE REPUBLIC. 91 The offer of Post 3, to grant him a transfer on payment of one year s dues only, is so favorable that it seems strange he should hesitate to accept it. NOTE Chapter II, Article II, Section 10, as amended by National Encampment, May, 1875, requires a Comrade, who has neglected to take the obligation of the third grade, to make application to be admitted as a recruit. OPINION LXIII. JANUARY 25, 1875. Dues Applies to nothing except the annual tax. Assessments Compulsory; limited to the levy of an annual tax Transfer card A By-Law of a Post fixing fee for each transfer card is void. Nineteen Comrades of Post 79, Department of , having paid their dues in advance for the current quarter, asked for transfer cards at a regular meeting of the Post. The Post, by laws adopted while these nineteen members were Comrades of the Post, imposed a fee of one dollar to be paid for each transfer card. This fee was demanded, and finally paid, under protest. The Comrades became Charter-members of Post No. 80, Department of , and that Bost presented the case to the Judge Advocate, who holds that the word "dues," in Chapter II, Article IV, Section 2, of the Rules and Regulations,* includes the transfer fee, because the members of the Post, by adoption of the By-Law, had contracted to pay such fee, and made it " due " to the Post from themselves or others desiring transfers, and therefore the fee was legally collected. From this decision Post No. 80 appeals to National Headquarters. It would, perhaps, be sufficient to say, in answer to the ruling of the Judge Advocate, that the question has been settled by Opinion III, of August n, 1871, approved by the then Com- mander-in-Chief and subsequently by the National Encampment * See Section 2, Article IV, Chapter II, at close of Opinion III. 92 OPINIONS OF JUDGE ADVOCATES-GENERAL held May, 1872, and promulgated in their Proceedings, page 68 ; but as that Opinion contained no discussion of the question, it may be well to consider the reasons which support it. The word ; dues " in our Regulations, occurs first in the first edition adopted at Philadelphia, January, 1868, as part of the title of Article XII. , "DUES AND REVENUE." The first Section of that Article is as follows : SECTION i. The annual dues to a Post from each member shall not be less than one dollar. SEC. 2 provides : The Department dues shall not be less than ten cents per annum upon each member upon the rolls of the Posts within the Department, etc. SEC. 3. Departments, as soon as organized, may fix such higher rates in Post and Department dues as their special neces sities may require. ******** SEC. 5. The dues to the National Encampment shall be two cents per annum upon each member of the Order, etc. In 1869, a thorough revision of the Rules and Regulations was adopted, and the subjects treated of were carefully classified. Under the head of "Dues and Revenues," as the title of Article III. of Chapter V, we find the same language, which defines the term in every edition of the Regulations since that time. The word "dues," therefore, in the universal usage of the Grand Army from the moment that it became a recognized National organization, has signified the regular annual taxes paid by Comrades to their Post, by the Posts to the Department, and by the Departments to the National treasury of the Order. It is never used in our Regulations in any other than in this restricted and technical sense. For instance, take the first Sec tion of Article IV, of the same Chapter: "Any Department in arrears for reports or dues shall be deprived of all representation in the National Encampment until the same are forwarded." Can it be supposed that if a Department had forwarded its reports and the annual tax to National Headquarters, and had not paid a bill for blanks furnished, its representatives would OF THE GRAND ARMY OF THE REPUBLIC. 93 thereby be excluded under this Section from their seats in the National Encampment? If such had been the intention, the language wou!4 have been: "Any Department indebted to the National Encampment, or whose reports have not been duly for warded, shall," etc. In Article IV of Chapter II there is noth ing to indicate that the word is used in any other sense. The first Section, in providing for granting leaves of absence, says, "Provided he * has paid in advance all dues for the time specified in the furlough. How can the applicant pay dues for a future time, unless such " dues " are the ascertainable pro portionate part of a sum fixed with regard to time? .1 can not tflink of anything to which this language can apply except the annual tax. It is not likely that in the very next Section the framers of the Regulations should have used the word in any different sense, when it would have been so easy to specify a fee as a second condition to the granting of the paper. The Judge Advocate is in error in supposing that all powers not specifically forbidden by the Regulations may be exercised by the Posts. The inten tion of our Regulations is to bring membership in the Grand Army within the reach of all honorably discharged soldiers who are not personally objectionable. The power, therefore, of a Post to make compulsory assessments upon its members is limited by Section 3 to the levy of an annual tax.* This may be made sufficient, in any Post, to meet all its expenses. If it is fixed at a figure which is beyond the ability of some of the Comrades, the door must be left open to them to withdraw, without fee, to some cheaper Post. The position, that a Comrade, by voting for a Post By- Law which is in violation of the Rules and Regulations, may make it obligatory upon him as a contract, is subversive of all ideas of the subordination of the various organizations of the Order. Such a By-Law is void ab initio. If it relates to the payment of money, the Comrade may fulfill it if he chooses; but the Post is forbidden to enforce it, and money paid compulsorily, under its provisions, may be recovered. ; _ . ,_ * Section 3, Article III, Chapter V, at close of Opinion LX, herein. 94 OPINIONS OF JUDGE ADVOCATES-GENERAL OPINION LXIV. MARCH 16, 1875. Post Commander Has no power to pardon. , Court Martial Reviewing officer may mitigate a sentence His action final. Has a Post Commander power to pardon a Comrade condemned by sentence of Post Court Martial to suspen sion for one year? In the absence of any regulation permitting the remission of a penalty regularly ordered, I am of the opinion that no such power exists.* I think that by military usage the reviewing offi cer! has the power to mitigate a sentence when it is sent up for his approval, but not after he has once passed urxm it. His ac tion then becomes final, and he can not afterwards reverse or modify it. NOTE See Opinions I, LVI, LXXIII, CV and CXLV. OPINION LXV. JUNE 30,. 1875. Commander-in-Chief Court Martial The Commander-in-Chief, in the exercise of sound dis cretion, may refuse to order a Court to try certain charges and specifications. " Conduct unbecoming an officer and gentleman "Definition of. The following opinion was given upon a case submitted to me by the Commander-in-Chief, in which questions arose in regard to his powers and duties upon the receipt of cer tain charges and specifications against a Department Com- : -j *The entire matter of the finding and sentence of Court Martial is taken out of the hands of Post Commander by Rule 4, Court Martial, to wit: 4. The findings and sentences of Post Courts Martial shall be approved by a majority vote of said Post, subject to an appeal to the Department Com mander. If the sentence of any Post Court Martial shall be dishonorable discharge or dismissal, if t approved by a majority vote of the Post, the pro ceedings, findings and sentence shall be forwarded by the Post Commander to the Department Commander (through the Assistant Adjutant-General of the Department) for his approval. Such a sentence can not be promulgated without his approval. t See Sections 4 and 6, Article VI, Chapter V, at close of Opinion LVI. OF THE GRAND ARMY OF THE REPUBLIC. 95 mander and another Comrade, and a request had been made to him to order a Court Martial for the trial of the same. The charges are : First Violation. of the pledge of membership. Second The commission of a scandalous offense against the laws of the land. 7^/iira Conduct unbecoming a soldier and a gentleman in his relations to the Grand Army of the Republic. Fourth Conduct prejudicial to good order and discipline. The specifications under the several charges are identical, and consist in the statement that the accused, who are editors and proprietors of a newspaper, published therein certain slanderous words concerning the Comrade who prefers the charges, who was also editor of another newspaper. One of the accused is a Department Commander, and the accuser is an Assistant In spector-General. The words are not technically actionable at common law unless special damage has ensued, and such a ques tion can be best decided in the civil courts. They do not constitute such a libel as an indictment would lie for in a criminal court of any State with whose laws I am acquainted, and so can not support the second charge. As I understand the third charge, it must be interpreted with reference to the universal construction put upon the similar ex pression in the Army Regulations, "conduct unbecoming an officer and a gentleman," by all authorities in military law. In that view not every ungentlemanly act is meant by this expres sion, but only those acts of a peculiarly mean and dishonorable kind, which no one could perform and still remain a gentleman. The high penalty affixed to the crime by Army Regulations " Cashiering, without option by the Court to substitute a lesser punishment" could only be intended to apply to the gravest derelictions, such as unfit a man for the society of gentlemen and make him an outcast from society, and necessarily excludes from this category mere impolite or ungentlemanly acts which may not proceed from a depraved character. If the accused had taken advantage of his position as -a Department Commander OPINIONS OF JUDGE ADVOCATES-GENERAL to issue in orders to his Department the injurious language which he has published in the newspaper, it might support the charge as showing such malignity as would be inconsistent with a proper conception of his position and duties. I do not think the lan guage, as used in an editorial, can be brought within the scope of the charge. The fourth charge is quite as wide of the mark. Slander of an Assistant Inspector-General by a Comrade not of his Depart ment can not materially affect the order and military discipline of the Grand Army of the Republic. People do not believe everything in the newspapers, and the statements which make least impression on the public credence are probably those which contain commendations of themselves and abuse of their rivals. A newspaper fight is a contest in which no one is killed, and the wounded leave the field in good order. The specification might possibly be construed to support the first charge. The tone of the language is very far from that which a spirit of genuine fraternity would prompt. Yet, newspaper editors, who are personally very good friends, do sometimes permit themselves to indulge in questionable lan guage of each other, when the claims of their respective organs are at issue. It is apparent that we are presented here with one portion of such a discussion. If each had not appropriated the name of our Order for the purpose of assisting his circulation, I think no one would consider the Grand Army in any way in volved. It seems to me to be a case, where the Commander-in-Chief may exercise a sound discretion in refusing to order a Court to try these questions until one of the parties has shown a real and substantial injury, by obtaining judgment against the other in the civil courts. If the damage is real, it will evidently be ascertained by a re sort to tr/e proper tribunals, whether a Court Martial is assembled to try the case or not. If the charges are only preferred as a move in the contest, the interests of our Order seem to me to require that we do not lend its aid to any such object. NOTE See Opinion CXXIV; also, Decision XIII, Commander-in-Chief. OF THE GRAND ARMY OF THE REPUBLIC. 97 OPINION LXVI. JULY 30, 1875. Post Commander Has no power to suspend a member of a Post against whom charges have been preferred, before the decision of the case. Court Martial Accused may or may not be present. Department Commander or Commander-in-Chief may suspend an officer from discharge of his official duties, but not from rights as a member. The question is proposed, whether a Post Commander may suspend a member of the Post against whom charges have been preferred, before the decision of the case. I agree with the Department Judge Advocate that he has no such power by reason of charges preferred. The question whether a Commander may not temporarily place in arrest a Comrade who is disorderly on parade or in a Post meeting, is not the one under discussion, and this discrim ination, if borne in mind, will assist in the decision of the point proposed. I think that the fear of the Department Commander that the Judge Advocate s decision would be subversive of dis cipline, arose from his overlooking this fact. The object of arrest in a criminal suit, or in the case of charges being preferred in military service, is to secure the attendance of the accused at the trial, and that he may be within reach of the sentence. Obviously, the state of arrest is inconsistent with the performance of duty by a private soldier, or the exercise of authority by an officer. In our code of discipline it makes no difference whether the accused is present at the trial or not.* If he willfully absents himself after notice, the Court may hear testimony and determine the case in his absence. We have neither the power nor the motive to restrain him of his liberty, and the deprivation or sus pension of his rights as a member, which would be the natural result of duress, can not be inflicted except from such a necessity. The fact of arrest being absent, the incidents of arrest fail. As the Judge Advocate suggests, to suspend a Comrade from his privileges in the Post because charges are preferred against him, would be to anticipate the judgment of the Court, and. to inflict * See Opinion CXLIII. 7 98 OPINIONS OF JUDGE ADVOCATES-GENERAL punishment upon a man whom the law as yet presumes to be innocent. The case of an officer is somewhat different. It might be, in certain cases, improper for the official duties of a Post to be per formed by a person against whom charges were pending; he might even have the official custody of the proofs of his guilt; and so the Regulations give the Department Commander or Commander-in-Chief the power to suspend an officer who is accused of an offense against the Regulations from the exercise of his office.* The framers of the Regulations thought it neces sary to confer this power by positive enactment, and it is to be inferred that they did not consider that the preferring of charges would give the power by implication. Even in the case of an officer, the accused is not suspended from his rights as a member of the Post, but only from his office. The decision of the Post Commander should be overruled and the Comrade restored from suspension. OPINION LXVII. SEPTEMBER 3, 1875. Transfer card After presentation of a transfer card and muster into a new Post, the Comrade is a member of the new Post. Regulations Require signing of the By-Laws. Transfer card Conclusive on Post which issues it. A transfer card was granted T., June 8, which he pre sented at the organization of a new Post, June 9, and he was mustered as one of the Charter-members. He neglected to sign the By-Laws of the new Post, and to attend its meetings after the first one, and on July 2/th the new Post voted to return his transfer card to his former Post, with a request to them to withdraw it. After the presentation of his transfer card and his muster into the new Post, as others were mustered, Comrade T. must be * Section 8, Article VI, Chapter V. See Opinion XLVI. OF THE GRAND ARMY OF THE REPUBLIC. 99 considered a member of the new Post. The Regulations imply that all members shall sign the By-Laws within a reasonable time, but no specific time is mentioned.* He may therefore sign now, and complete his membership. A transfer card is generally con clusive upon the Post which issues it, except in case of fraud. OPINION LXVIII. OCTOBER 14, 1875. Court Martial - When the members of the Court are of different rank the senior officer will preside. Department Commander may, when all are of the same rank, designate who shall preside. A Department Commander ordered a General Court Mar tial, composed wholly of Post Commanders, and named one of them President. Another member of the Court protests against the appointment of the President by the Depart ment Commander, taking the ground that the senior officer detailed must preside, and asks, What determines rank in the Grand Army? The Department Commander assumes that all the officers of the Court were of equal rank, and hence necessarily that a choice must be made by him. If such were the fact, inasmuch as no army precedent could be adduced, and our Regulations do not provide for such a case, I should hold that he assumed a convenient and necessary power. The only other admissible alternative would seem to be to direct the members to draw lots for temporary seniority ; but to direct the Court how to select their President would be exercising an authority very nearly the same as to select him at once, and would be substituting a cumbrous proceeding for a direct and certain action. f * Section 8, Article II, Chapter II. See Opinion V. f As to the President of Post Court Martial, see Rule 5, Court Martial, at close of Opinion XXXVI. 100 OPINIONS OF JUDGE ADVOCATES-GENERAL When a commanding officer exercises a discretionary power which falls upon him from the necessities of an unanticipated case, he can only be held to the exercise of his best judgment; and if he does not on the moment select the course which on mature reflection would seem most wise, yet, having acted in good faith, he will be sustained. If, on the other hand, the members of a Court are of different rank, the army regulations must be our guide and the senior officer will preside. I do not know that we have any means of deciding questions of seniority between two Grand Army officers of the same official grade, unless we follow the analogy of the service, and decide in favor of the one who has been longest in office. But, between two Post Commanders, who are elected for the first time in the same December, and installed at the next stated meetings of their respective Posts, though one Post should hold its meeting earlier in the month than the other, I do not see that any distinction can justly be made. Upon this point, as upon all similar ones which must be de cided somewhat arbitrarily, I conceive that any rule established by the Commander-in-Chief would be acquiesced in as correct ; and until some uniform rule is adopted, the decision of the De partment Commander in his own jurisdiction must stand. OPINION LXIX. OCTOBER 14, 1875. Eligibility to Membership Depends upon whether or not the applicants can present honor able discharges. It is stated that certain applicants for membership in the Grand Army were reported upon their regimental returns in the army as deserters, having been unavoidably detained on furlough longer than their allotted time, and the ques tion is asked, Are these men eligible? OF THE GRAND ARMY OF THE REPUBLIC. 101 The same question arises in the case of T. J., who has been mustered into a Post of the Grand Army, but is after wards discovered to be recorded in the State roll of volun teers as a deserter. The question must be answered by ascertaining whether the candidates can present honorable discharges. If so, notwith standing the fact of a technical violation of military law, they are eligible to be balloted for as candidates. The members of Posts, by their votes, will decide whether the offense committed in each case was of such a nature as to prove the applicant un worthy to be received among true soldiers. If they have not honorable discharges from the army they are not eligible to be voted for. In the case of T. J. the same rule holds. If he presented an honorable discharge he is properly elected, and the Post can not invalidate its action ; if he did not have such a discharge he must be dropped, and the Post is deserving of severe censure for not requiring it before the ballot. I would refer, also, to the case discussed in Opinion LIV, July 19, 1873. OPINION LXX. DECEMBER 30, 1875. National and Department Encampments Members Must be in good standing in tbeir Posts. The question is proposed whether a Past Department Commander, whose connection with the Grand Army of the Republic has been severed by the disorganization of the Department and Post to which he belonged, regains his privileges as such Past officer on again becoming a member of his Post in good standing. 102 OPINIONS OF JUDGE ADVOCATES-GENERAL The question is upon the construction of the provisions of Sec tion i, Article II, Chapter III,* and Section i, Article II, Chap ter IV, Rules and Regulations.! I think the words "so long as they remain in good standing in their several Posts" apply to all Past Department Command ers who are not at the time under any disability to act as mem bers of their Post, and that they may sit as members of the De partment and National Encampments. If such officer asks to be admitted to a seat the question is : Is he in good standing in his Post? If so, he should be admitted. OPINION LXXI. DECEMBER 20, 1875. Eligibility to Membership One who enlisted in the United States army June 29, 1875, is eligi ble to membership. An applicant for membership in the Grand Army of the Republic, enlisted in the United States army, Company F, * See Article II, Chapter III, at close of Opinion XVIII. t SECTION i, ARTICLE II, CHAPTER IV. MEMBERSHIP. SECTION I. The National Encampment shall be composed First Of the Commander-in-Chief, Past Commanders-in-Chief and Past Vice-Commanders-in-Chief, so long as they remain in good standing in their respective Posts, and the other officers named in Section 2, Article IV, of this Chapter. Second Of the Commanders, Vice-Commanders and Assistant Adjutant- Generals of the several Departments, and the Commander and Assistant Adjutant-General of each Provisional Department for the time being (for whom no proxy or substitute can act) . Tkird Of Past Department Commanders who have served for a full term of one year, or who, having been elected to fill a vacancy, shall have served to the end of the term, so long as they remain in good standing in their Posts; and, Fourth Of one Representative-at-Large from each Department, and one Representative for each one thousand members in good standing therein, OF THE GRAND ARMY OF THE REPUBLIC. 103 Twenty -third United States Infantry, June 29. 1865, and was honorably discharged by reason of the expiration of his term of enlistment, June 29, 1868. Is he eligible to membership? The question depends upon whether the applicant served in the army of the United States during the late Rebellion. I suppose that the exact locality of service in the army of the United States can not be taken by any one as a criterion of ser vice in the suppression of the Rebellion. Those parts of the army that were garrisoned in forts in the Northern States, out of reach of the enemies guns, formed an essential part of our force, and as truly served as if they had been in front of the conflict; and this service continued until the last portion of Rebel territory was reclaimed. The question of the duration of the Rebellion is the only one requiring attention. Upon this point we have the decisions of the Executive, Leg islative and Judicial Departments of the Government. The President issued his proclamation April 19, 1861, recognizing the existence of rebellion in South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana and Texas. Congress and the Supreme Court of the United States have accepted this date as the commencement of the war. The Protector, 12 Wallace, 700 ; United States v. Anderson, 9 Wallace, 36. On the 2d of April, 1866, the President issued his proclamation, announcing that the Rebellion was terminated in the States of Virginia, North Carolina, South Carolina, Georgia, Florida, Mississippi, Tennessee, Alabama, Louisiana, Arkansas ; and finally, on the 2oth of August, 1866, his proclamation, declaring that the Rebel lion was ended in "Texas, and peace restored throughout all the United States. Congress recognized the declarations as fixing the period of the Rebellion by many enactments, and the Supreme Court, in and one additional Representative for a final fraction of more than one-half of that number, such Representatives to be elected by the Department En campment, as provided in Article IX, Chapter III. Any Department having less than one thousand members, and more than five hundred, shall be en titled to one Representative in addition to one Representative-at-Large. 104 OPINIONS OF JUDGE ADVOCATES-GENERAL the cases above referred to declare that the first official declara tion we have on the part of the Executive that the Rebellion was wholly suppressed is in the President s proclamation of August 20, 1866; and hold that the war began and ended according to the declaration of the several proclamations referred to. These decisions have been followed in Phillips v. Hatch, i Dillon, Cr. Ct. Rep. 5, 71, and other cases which it is unnecessary to refer to. It is, then, settled that the late Rebel lion began April 19, 1861, and finally ended August 20, 1866. The applicant served in the army of the United States during that period, and was honorably discharged, and is eligible.* OPINION LXXII. MARCH 22, 1876. 1. Eligibility to Membership An applicant rejected by one Post, and who, before the expira tion of the time fixed by the Regulations, applies for membership and is there elected and mustered, is illegally elected and mustered and should be dropped from the rolls. 2. Two things are necessary to become a member of the Grand Army: Eligibility to member ship under the Regulations, and he must be duly elected. 3. Regulations The National Encampment alone has power to alter or amend. 4. A member once admitted, though unfit, can not be stricken from the rolls except for some subsequent misconduct. 5. Acting within the Regulations, the muster of a recruit would conclude the Post on all ques tions left by the Regulations to the Post. F. C. F. applied for admission to Post 32, of Depart ment of Massachusetts, and was rejected. He then applied to Post 82, and was accepted without the consent of Post 32. He did not state in his application to Post 82 that he had made a previous application. From Post 82 he was regularly transferred to Post 125, and the fact transpiring that he had been improperly admitted to Post 82, he was dropped as never having been a member of the * The time of service which renders a soldier eligible to membership is now fixed by the Rules and Regulations, so that it must have been between April 12, 1861, and April 9, 1865. See Article IV, Chapter I, at close of Opinion IV. OF THE GRAND ARMY OF THE REPUBLIC. 105 Grand Army of the Republic. The Department Com mander sustained the action of Post 125, holding that the initiate fraud or error vitiated the subsequent proceedings. From this decision, embodied in General Orders No. 6, Headquarters Department of Massachusetts, October 27, 1875, Paragraph 3, F.jC. F. appeals. The provision of Chapter II, Article II, Section 5,* of the Rules and Regulations, that a rejected candidate shall be forever after ineligible for admission to any other Post of the Grand Army of the Republic without the consent of a two-thirds vote of the Post rejecting him, is in terms absolute and unqualified. Can a Post, by its action or omission, waive the application of the rule in a particular case? The appellant claims that Post 82 did so, because one of its members informed him that he need not comply with the Regulations. The principle of the organization of our Order is subordination of Posts to Depart ments, Departments to the National Encampment, and the whole Order to written regulations, which form our Constitution. f * See Opinion LIII. f PREAMBLE TO RULES AND REGULATIONS: We, the soldiers and sailors, and honorably discharged soldiers and sail ors of the army, navy, and marine corps of the United States, who have consented to this union, having aided in maintaining the honor, integrity, and supremacy of the National Government during the late Rebellion, do unite to establish a permanent association for the objects hereinafter set forth ; and through our National Encampment do ordain and establish the following Rules and Regulations for the government of this association. ARTICLE X, CHAPTER II. BY-LAWS. Posts may adopt By-Laws for their government, not inconsistent with these Rules and Regulations or the By-Laws or Orders of the National or Depart ment Encampments, and may provide for the alteration or amendment thereof. ARTICLE X, CHAPTER III. BY-LAWS. Department Encampments may adopt By-Laws for the government of the Department, not inconsistent with these Rules and Regulations or the By- 106 OPINIONS OF JUDGE ADVOCATES-GENERAL These Regulations can only be altered, amended, suspended, or repealed by the National Encampment, not by Posts, whose powers are limited by the Regulations themselves. Nor can any Comrade, on behalf of the Post, lawfully do what the Post itself has not the right to do. The applicant, therefore, was not lawfully proposed and elected. But the case involves the further question, how far the unlawful act is void. Two things are necessary for the admission of a canidate to the Grand Army. He must be eligible to membership under the express provisions of the Regulations, and he must be elected by a duly authorized body. If not eligible, the Post has not the right to muster him, though they may unanimously vote to admit him. Certain general qualifications are stated in the Regula tions ; the peculiarities of character of the applicant are left to the investigation of the committee and the decision of the ballot. If an applicant who comes within the general requirements of the Regulations is elected by a Post, and it is afterwards discovered that he has been guilty of crime, or is of such a temper and dis position as to unfit him for the society of gentlemen, the action of the Post, as a general rule, must stand, because they have decided the matter which lay in their discretion. Even in this case, if the Post acted on mistaken information, and it was discovered before muster, their action might, in some circumtsances, be reversed. See Opinion LVII, October 29, 1873. I n such a case the Comrade, if once mustered, though Laws or orders of the National Encampment, and may provide for the alter ations and amendment thereof. ARTICLE XV, CHAPTER V. ALTERATIONS AND AMENDMENTS.* The Rules and Regulations, and the Ritual of the Grand Army of the Republic, shall only be altered or amended by the National Encampment, by a two-thirds vote of the members present at a regular annual meeting thereof. But any Section herein may be suspended, for the time being, at any annual meeting of the National Encampment, by a unanimous vote. *Proposed amendments to Rules and Regulations must be presented to the Adjutant General in time to furnish each member a copy at least thirty days before the annual Encampment. Resolution, Encampment June 18, 1879. OF THE GRAND ARMY OF THE REPUBLIC, 107 unfit for membership, would remain a member and could not be stricken from the roll except for some subsequent offense. In brief, I should hold that the muster of a recruit would conclude the Post upon all questions left by the Regulations to the Post to decide. In the present case, the Post have not acted injudiciously upon a question submitted to them, but they have taken juris diction where the Regulations give them none. Their action in this case was required to be concurrent with that of the Post which first rejected the candidate. If they had the means of knowing the fact of the previous re jection, as it seems they should have had in their files of General Orders, or by insisting upon the proper filling of the blanks in the application, they were guilty of carelessness and disregard of their obligations of the Order. Yet they can not bind the Order, of which they form a part, or waive the rights of Post 32, to whose jurisdiction the candidate first voluntarily subjected himself. The action of the Post, therefore, in admitting the appellant was void, and the National Encampment only can provide any remedy for the case. If it were an instance where the vital interests of the Order were at stake, it may be that the Com- mander-in-Chief, in the intervals between the sessions of the En campment, might assume the power to act. But it is not appar ent that any such pressing necessity exists, either arising from an equitable regard for the position of the appellant or from the interests of the Grand Army involved. i. The candidate was furnished with a blank form of appli cation, containing a statement of the fact whether or not he had made previous application for membership, and had no right to rely upon the unofficial statement of his friend, that he might suppress the fact of his previous rejection. Common prudence would have led him to read the Regulations of a society which he intended to join when those Regulations were open to his free inspection. His familiarity with the rules of other secret soci eties shown in his argument must have taught him that his rejec tion by a local organization was a material fact which could not be without influence in the action on his second application, and that the printed form for such a statement could not be a dead 108 OPINIONS OF JUDGE ADVOCATES-GENERAL letter. The dropping of his name from our rolls can throw no imputation upon his character beyond what is necessarily inferred from his own acts. He may make a new application to any Post, and. with the consent of Post 32, may be regularly elected and mustered. 2. Our organization differs in many respects from other secret societies. Our Regulations expressly recognize the termination of membership in the Order, either voluntarily, by honorable discharge, by neglect, or by sentence of Court Martial. There are, therefore, many men not now members of the Grand Army, who have been Comrades, and who have filled high and impor tant offices in the Order. The addition of one name to the list does not seem to be likely to affect the interests of the Order to such an extent as to warrant an arbitrary suspension of the Reg ulations. It is suggested that the appellant has acted as a Post officer, and it is apprehended that if it is decided that he has never been lawfully a member, his official acts must be declared void. I do not understand this to be the law. The only practicable rule to, adopt in such cases is to consider the acts of a tie facto officer, so far as they were lawful in themselves, as of the same force and effect as if performed by one holding the office de jure. On the other hand, unless the illegal act of the Post in this case is held void, there is no possible mode of enforcing the Regulation. Either this Regulation, and all others relating to the eligibility of candidates, are void (for there is no punishment provided for their violation), or else an act done contrary to them is void ab initio, and when discovered must be so declared. I think the appeal must be dismissed. OPINION LXXIII. MAY 10, 1876. Court Martial If the sentence of Court Martial is inadequate, in the opinion of the reviewing officer, he may send back for revision. Appeal If the reviewing officer has already passed upon the sentence, there is no remedy. A Post tries a Comrade by Court Martial. His offense is a grave one, and deserves the utmost punishment in the OF THE GRAND ARMY OF THE REPUBLIC. 109 power of the Court to inflict. The Comrade pleads guilty, and the sentence of the Court is merely nominal entirely disproportioned to the offense. Can the Department Com mander order the case to be reviewed by the Court? Is there any remedy? If the sentence of a Court Martial is inadequate, in the opin ion of the reviewing officer, he may send back the proceedings for revision before the Court is dissolved, stating his reasons and views to the Court. If they still adhere to their sentence, he is powerless except to disapprove the sentence or to order the execution of it. This power is implied in words "orders in the case," occur ring in our Rules and Regulations, Chapter V, Article VI, Sec tion 6,* where they are quoted from the Sixty-fifth Article of War; or, perhaps, it is a power directly flowing to use the words of Mr. Benet from the very constitution of courts, as a consequence of the right of confirming and disproving the sen tence ; at any rate, it has been fixed by custom, and is the estab lished practice in the United States service. The mode of procedure on revision is stated fully in Chapter XIII of Benet s Law and Practice of Courts Martial, which will be accessible to and should be consulted by the Judge Advocate of the Court see page 146 et seq. , also De Hart s Military Law, page 204 ef seq. , to the same effect. If the reviewing officer has already passed upon the sentence there is no remedy?! OPINION LXXIV. AUGUST 29, 1877. Applicant Grade One who was mustered as a recruit under the grade system must proceed as an original applicant. C. A. P. was mustered as a recruit, September 20, 1870, under the grade system, was never advanced to the higher grades, and never took the obligation of veteran, after the * Article VI, Chapter V. See Opinion LVI. tSee, also, Opinions LVI, LXIV, CV, CXLV. 110 OPINIONS OF JUDGE ADVOCATES-GENERAL grades were abolished, but was carried on the rolls of the Post until the Post surrendered its Charter. He never paid any dues other than the fee for muster as a recruit (five dollars). He now wishes to join another Post. Now, can he legally be brought into the Order? On the foregoing statement I am of the opinion that C. A. P. can only be brought legally into the Order by applying de novo, that is by making an original application, and proceeding as if he were a new recruit.* I find no previous Opinion, Rule or Regulation to aid me in this case ; but upon general principles it would seem that any regard for the spirit or intent of the Rules and Regulations governing the Order, would require much more from C. A. P. than he has yet performed. Nearly seven years ago, under the grade system, he was mustered as a recruit under that system. He never elected to proceed further. When that system was abolished he neglected to take the regulation of veteran ; he never paid any dues, except the fee required for proceeding as far as he went ; the fact that he was carried on the rolls of the Post all the while amounts to nothing ; he should not have been ; and now that the Post has surrendered its Charter, I am clearly of opinion that he should proceed as an original applicant. OPINION LXXV. AUGUST 29, 1877. Dropped members can not be regarded as dishonorably discharged members. Dishonorably discharged members are such as have been convicted and sentenced by Court Martial. Certain members dropped from the rolls for non-pay ment of dues. Can such members be regarded as "dis honorably discharged?" * Such cases are governed by Section 10, Article II, Chapter II, set out at close of Opinion V, herein. OF THE GRAND ARMY OF THE REPUBLIC. Ill Section 3, Article IV, Chapter V, of the Rules and Regula tions, 1877,* is clear and explicit that any member in arrears in the payment of his dues is to be reported only as "suspended." And Section 4 of the same Article is equally clear and explicit that any member in arrears for a year shall be "dropped from the rolls," and of course so reported. In my judgment only those members convicted (and sen tenced) under a Court Martial of one of the five offenses named in Section i, Article VI, of said Chapter, can be regarded or re ported as "dishonorably discharged ;" therefore I am of opinion that Comrades dropped from the rolls for non-payment of dues can not be regarded or reported as "dishonorably discharged." OPINION LXXVI. OCTOBER 18, 1877. 1. Department Commander When information is given the Department Commander charging that an election of Post Commander is illegal, then he, the Department Commander, may issue an order postponing the installation until investigation is had And it makes no dif ference how the information was given to Department Commander. 2. Qualifications A Commander-elect is not disqualified from assuming the duties of his office by reason of any suspicions against his integrity as a Quartermaster. The case contained in a communication to the Com- mander-in-Chief from Headquarters Department of New York, dated October 10, 1877 (to which reference ma) be had), stated briefly is as follows : A Quartermaster, whose accounts were being investigated by a committee of his Post, is elected Commander of his Post, to fill a vacancy, at a meeting to be called for that purpose ; at which meet- ing, and before proceeding to an election, an order is passed remitting the dues of all Comrades in arrears, and by a vote of the Post "the second meeting following " is * See Section 3, Article IV, Chapter V, at close of Opinion III, herein. See Section 4, Article IV, Chapter V, at close of Opinion XXXV, herein. See Section I, Article VI, Chapter V, at close of Opinion I, herein. 112 OPINIONS OF JUDGE ADVOCATES-GENERAL fixed as the time for installation ; and at the meeting next following the election a vote is passed giving said committee until one week after installation to report ; when a paper setting forth above-mentioned facts, signed by certain mem bers of the Post, claiming that the "election was irregular and fraudulent and ought not to stand," and asking that a committee to investigate said election may be appointed, is forwarded to Department Headquarters. Whereupon from said Headquarters an order is issued postponing the installation and appointing such committee ; the installa tion is postponed ; the Commander elect protests against said order as illegal and void, on the ground that the "appeal (meaning the paper heretofore alluded to) is not in regular form" and did not go "through proper chan nels," asks that said order be revoked, and the following questions are referred to the Judge Advocate-General for opinion, to wit : First If the order referred to above should be rescinded? Second If this Quartermaster is competent in any event to be installed as Commander while yet his Quartermaster s accounts are unsettled, and before he has been formally released by the Post? i. If by the first question is meant, Is the order a valid one? I am of opinion that the validity of the order of the Department Commander in this case is not affected by the manner in which said paper or appeal was forwarded to Headquarters (and how it was forwarded don t appear), for the Department Commander had a right to order such investigation if he believed it for the best interests of the Order or his duty upon ascertaining the facts, no matter by what means obtained, or even upon sus picion of the facts, without any communication on paper what ever. This paper may have been irregularly forwarded ; and, if so, it should have been returned with such reprimand or direc tions for punishment as the Commander of the Department saw fit, if any. Or the Post might take proper steps to punish such OF THE GRAND ARMY OF THE REPUBLIC. 113 infraction of the rules if it was considered of sufficient impor tance, but it clearly does not invalidate the order of the Depart ment Commander. There is no provision in the Rules and Reg ulations for the appointment of investigating committees by De partment Commanders, but I am of opinion that such power may safely be inferred from the undefined general powers which such executive and administrative officers must necessarily have, and that this will not be disputed. If the question is meant to be construed literally, to-wit, Should the order be rescinded? then I answer that the question is wholly one of policy or expediency, and is to be decided only by the authority from which it ema nated. 2. I am of the opinion further that this Quartermaster or Commander-elect is not disqualified from being installed by rea son of any suspicions against his integrity as a Quartermaster, or by reason of the appointment or proceeding of any committee to investigate his conduct. Committees of investigation are always proper and sometimes necessary, but no direct effect results from their appointment, investigation or reports. It is the order from the proper authority, or the Court Martial which follows, that produces the direct effect. The remedy for wrong doing on the part of a Comrade is simple and direct, i. c. by a Court Martial, on charges preferred, and when charges are preferred against an officer of a Post, the Department Com mander may suspend the accused from office.* The case itself presents other interesting questions, but I have confined myself to the questions propounded, and it will be noticed that in answering the second question I purposely avoided the consideration of the effect of any action upon an unfavorable report from the Committee of Investigation into the election appointed by Department Headquarters. *See Section 3, Article VI, Chapter V, at close of Opinion XLVI. Also, Section 8, same Article and Chapter. See Opinion XLVI. 8 114 OPINIONS OF JUDGE ADVOCATES-GENERAL OPINION LXXVII. OCTOBER 24, 1877. Commander-in-Chief can not grant a " Roving Charter." Posts must be located. Certain members of the Grand Army of the Republic belonging to the regular army request a Charter for a Post, independent of any department, the Charter to operate and the Post to be located in any State where the regiment to which they belong may be stationed for the time being, or in other words that they may be granted a " Roving Char ter," and the question is asked: Has the Commander- in-Chief the right to grant such request? Article III, Chapter I, Rules and Regulations Grand Army of the Republic,* would seem clearly to prohibit the granting of such request, for it states distinctly that the several constituted bodies of the Grand Army of the Republic shall consist: i. Of Precinct organizations, to be known as Posts of a Department; 2. State organizations to be known as Departments ; and 3. A National organization to be known as a National Encampment. The^request contemplates a body differently constituted, and is clearly in violation of the rule. * ARTICLE III, CHAPTER I. ORGANIZATIQN. The several constituted bodies of this association shall consist of : First Precinct organizations to be known as Post, No. , De partment of - , Grand Army of the Republic; Provided, however, That no Post shall be named after any living person, and that not more than one Post in a Department shall adopt the same name, and that the name shall be approved by the Department Commander. Second State organizations to be known as Department of - Grand Army of the Republic. Third A national organization, to be known as the National Encamp ment of the Grand Army of the Republic. OF THE GRAND ARMY OF THE REPUBLIC. 115 OPINION LXXVIII. NOVEMBER 26, 1877. Vote Required by Section i, Article III, Chapter II, and by Section 4, Article IV, Chapter V, Rules and Regulations may be either by ballot, hand, or viva voce. Transfer card Holder may visit Post May also become Charter-member of new Post. First Should the vote required by Section i, Article III, Chapter II,* Rules and Regulations, be viva voce, or by ballot? Answer I see no reason why it might not be either, or by. hand ; if by a ball ballot, then it would require more than a third to be black balls in order to reject. Second Should the vote required by Section 4, Article IV, Chapter V, Rules and Regulations, be vive voce, or by ballot? Answer Same answer as above, except that this is a majority vote, and it would require a majority of black balls in case of a ballot to prevent re-instatement.| Third Has a Comrade, holding a transfer card, a right to visit a Post? Has he such right if not correct in the Na tional or Department P. W. ? *See Opinion XCII. ARTICLE III, CHAPTER II. ADMISSION OF COMRADES FROM OTHER POSTS. SECTION i. A Comrade having a valid transfer card may be re-admitted to the Post which granted the same, by a two-thirds vote of the members present and voting, at a regular meeting, or he may be admitted to another Post, after his name has been proposed, referred and reported upon as in case of an applicant for membership, and upon receiving a two-thirds vote of the members present and voting, at a regular meeting, or he may be ad mitted a Charter-member of a new Post. t SECTION 4, ARTICLE IV, CHAPTER V. SECTION 4. If a Comrade shall be one year in arrears for dues, he shall be dropped from the roll, and reinstated only by the Post which dropped him, by a two-thirds vote by ballot, of all the members present, and voting, lit) OPINIONS OF JUDGE ADVOCATES-GENERAL In my opinion such Comrade has the same right to visit a Post as any other member of the Order. If he has not the P. W. necessary for admission, of course he can only be admitted by the Officer of the Guard, or Day, acting under directions of the Post. I do not see why the whole matter does not rest in the discretion of the Post as to the admission of any Comrade into the meetings of the Post, except such as visit on official business upon authority from Department or National Headquarters. Fourth What powers, or rights, have Assistant Muster ing Officers appointed by General Orders? Have they the right or power to hear and determine cases where objec tions would be raised to the installation of an officer either appointed or elected? Answer The Rules and Regulations recognize no such officer as "Assistant Mustering Officer." Fifth Can a member holding a transfer card be a Charter-member of a new Post? Answer See Section i, Article III. Chapter II. OPINION LXXIX. DECEMBER 4, 1877. Transfer cards Members of a Post can not become Charter-members of a new Post without transfer cards, or have been honorably discharged National or Department Head quarters may ordei transfer cards. A certain Post represents that in October, 1876, certain of its members, without notice, without any communications at a regular meeting ; said sum not to be less than the amount charged as muster-in fee. If -elected, he shall be re-obligated; Provided, that he may be re-obligated in any Post within whose jurisdiction- he may reside, upon the written request of the Post reinstating him." QUERY Must this not be by ballot, as expressed in this Section? Webster defines the word ballot: ist. "A little ball, a slip of paper, or anything which is used in giving a secret vote." 2d. " A secret method of voting at elections." See Opinion CXL1I, overuling this portion of this Opinion. (CAKNAHAN.) See Opinion CXLII, appproved by National Encampment, July, 1883. OF THE GRAND ARMY OF THE REPUBLIC. 117 with it, left the Post, and without transfer cards or honor able discharges joined another Post; upon hearing which latter fact it sent a communication to said members, of which no notice has been taken, and that in June, 1877, said members were suspended by it for non-payment of dues. On the other hand, said members represent that although they left the Post (being obliging to go with their regi ment), yet when they learned of the intended departure of their regiment they applied lor their transfer cards, but by the advice of the then Adjutant, and the present Com mander of the Post, they postponed taking the cards until their actual departure or the arrival of certain expected members. That after said arrival said Adjutant reported there were no blanks; that they then telegraphed to Department Headquarters for blank cards, receiving a reply that some would be sent in a few days, and suggest ing that the address of the departing Comrades be taken, so that the cards could be forwarded. That on November 2d they had the positive assurance of the present Com mander of the Post that the cards would be promptly filled, signed and forwarded; that they left on November 5th; that they were in good standing when they left (this is admitted by the Post); that on the ipth of November they wrote for their cards and received no reply ; that early in December they wrote again for their cards and received no reply; that on January 9th, 18/7, they changed their station to a place where there was a Post Charter in the possession of a single Comrade, who requested them to join with him ; that they represented to him their situation, and at his request they wrote again in the latter part of January for their cards but got no reply ; that about the last of February they stated their case to the Department Commander (.their removal was into another Department), who instructed this single Comrade to reorganize the Post 118 OPINIONS OF JUDGE ADVOCATES-GENERAL and to admit them as members ; that the Post was reorgan ized (and it is understood they joined it). They express themselves .ready to verify their statements by numerous affidavits, and the statement is corroborated by the Com mander of the Department in which these members now reside. While the Commander of the Department to which the Post belongs corroborates the statement of the Post as to a communication being forwarded to these mem bers, it does not appear, however, what this communica tion was. Upon this statement I am asked, what is the effect of such a state of affiairs. It does not seem necessary or even proper that the Judge Advocate-General should decide who is responsible for such an unfortunate state of affairs, and without passing upon that ques tion, I am of opinion that these members ought not to have been admitted into the Post, which it appears they joined on or about last February. I can not regard them other than as members of the old Post, until, upon a transfer card, they have regularly joined a new Post, or have been discharged honorably from the old Post. If their statement be taken, I see no difficulty in National or Department Headquarters directing the Post to furnish the transfer cards, as of the date when they left, which would settle the whole matter. If the statement of the Post be taken, they can undoubtedly be Court Martialed ; at any rate, as the case stands at present, they are. in my judgement, members, and members only of the old Post, unless, of course, they have been, meanwhile, dropped from the rolls, in which case their membership of the new Post would still be illegal.* * See Opinion XXXV. OF THE GRAND ARMY OF THE REPUBLIC. 119 OPINION LXXX. DECEMBER 6, 1877. Judge Advocate-General Opinion of, irrevocable. A question involving the legality of the Opinion of the Judge Advocate-General, November 26, 1871. This Opinion having been adopted by the National Encamp ment, Grand Army of the Republic, stands irrevocable, except by the National Encampment. OPINION LXXXI. JANUARY 29, 1878. Office Eligibility All members eligible. A Department Encampment votes that Department Commander, Senior Vice Department Commander, and Junior Vice Department Commander, shall be ineligible to re-election to these offices until they shall have served at least one term out of office. Is such vote valid, or in compliance with Chapter III, Article IV, Section i, Rules and Regulations?. The Section* referred to says in the plainest terms/ that "All members of the Grand Army of the Republic shall be eligible to any office in their Department," and the vote referred to is, in my opinion, clearly in violation of this Section, and therefore is invalid, void, and of no effect. OPINION LXXXII. JANUARY 30, 1878. Department Representation No change in the membership subsequent to the time of the elec tion can affect the number of representatives. A Post at the First Stated Meeting in December elects the number of Department delegates to which it is then entitled by its then membership ; the return for the *See Opinion LXX. 120 OPINIONS OF JUDGE ADVOCATES-GENERAL quarter ending December 3 1 , shows such a falling off in membership as not to entitle the Post to the number of delegates elected, if the December return controls. The Department Encampment meets in January. On what basis shall its roll be made up? Article II, Chapter III, Rules and Regulations, prescribes the basis of representation in Posts in the Department Encamp ment.* Article IX, Chapter II, f prescribes the time when such repre sentatives shall be elected, who hold office for the calendar year next ensuing such election. And the case put is : Will any change in membership subsequent to the time of such election, affect the number of representatives or delegates already elected? I think not ; for the reason, among other things, that any other view would lead to instability, uncertainty and fluctuations in the Constitution of the Department Encampment, which is a body al most wholly elected in December to serve for a period of twelve months, like most of our State Legislatures. Supposing the other view to prevail, and there were several sessions of the Encampment held during the year, if at each session the basis of representation was determined by the then number of mem bers of the Post, cases would not infrequently arise where a Post would be entitled to a different number of representatives or delegates at different sessions of the same Encampment. It might be a less number of delegates than had been elected ; in which case, which delegates are to serve, and which are to be dropped? Or it might be a larger number of delegates than had been elected ; in which case, where is the provision for the time and manner of electing the additional delegates? This would * See Opinion XVIII. t ARTICLE IX, CHAPTER II. REPRESENTATIVES . Each Post shall, at the first stated meeting in December, annually elect, from its own members, representatives and an equal number of alternates to the Department Encampment, in the manner prescribed in Chapter III, Article II. OF THE GRAND ARMY OF THE REPUBLIC. 121 seem to be conclusive and such a construction would seem un reasonable. Therefore, I am of opinion as above stated, to-wit, that membership at the time of electing representatives or dele gates should determine the number of representatives or dele gates to which a Post is entitled. As this ruling might make it inconvenient to the officers of the Encampment to determine the exact membership at the time of election (for I don t think any preceding return should govern), in my judgment the Rules and Regulations should be so amended as to provide that the return of Post membership next preceding the election of En campment representatives or delegates should be the basis upon which to determine the representation. OPINION LXXXIII. FEBRUARY 18, 1878. Department Encampment Where a Post entitled to only two delegates sends more, the En campment may exclude the extra delegate. Two Posts, with three delegates each claim representa tion in a Department Encampment against the ruling and under the protest of the Department Commander presid ing ; the Encampment excludes one delegate from each of the Posts, and the question is raised : Was such action legal on the part of the Encampment? The last return preceding the convention of the Encampment showing these posts to be entitled to three delegates each, the ques tion comes up on a request to declare proceedings of En campment void. It appearing upon all the facts, and after a hearing of all par ties, that at the time of electing delegates, to-wit, the first stated meeting in December," the Posts in question had a mem bership which entitled them to have two delegates each. I am of opinion that the action of the Encampment restricting these Posts to two delegates each was valid. Under the ruling 122 OPINIONS OF JUDGE ADVOCATES-GENERAL of Opinion XLIX, none of the regular returns control in deter mining the basis* so that the question raised at the Encamp ment, that except upon a claim of fraud the returns could not be inquired into, does not arise in the settlement of this case. NOTE See, also, Opinion LXXXII. OPINION LXXXIV. FEBRUARY 27, 1878. Membership; Transfer card Where transfer is asked for and discharge is granted instead, membership is not changed. Discharge Granted at the same meeting at which application is made, is void. A Comrade in good standing applies to his Post at a stated meeting, intending to apply for a transfer card, and is at the same meeting granted an honorable discharge. What is his status? His status is the same as if he never applied for a transfer, for the reason that the honorable discharge was granted in violation of Section 3, Article IV, Chapter II, Rules and Regulations, which requires the discharge to be granted at some " subsequent meeting," so that this discharge being null and void, and this being the only action attempted to be taken on the application, the matter stands as if no action had been taken. NoTE-See Section 3, Article IV, Chapter II, at close of Opinion XLV. OPINION LXXXV. FEBRUARY 27, 1878. Adjournment Motion to adjourn is out of order. Is a motion to adjourn ever in order in any Post of the Grand Army of the Republic? At Post meetings, where the Ritual is observed, a strict com pliance with the Ritual would render a motion to adjourn out of order, and therefore I am of opinion that such a motion at such meeting would not be in order. NOTE See Opinion GUI. * Changed by Rules and Regulations. See Paragraph 4, Article II, Chapter III, Opinion XVIII. OF THE GRAND ARMY OF THE REPUBLIC. 123 OPINION LXXXVI. FEBRUARY 2?, 1878. Post Commander can not turn over his command to a Comrade not a member of the Post. Pro ceedings void. Muster-in fee Must be uniform. " Same Manner" Meaning of. Has a Post Commander (except at a regular inspection or installation of its officers) the right to turn over his com mand to a Comrade as Commander who is not a member of the Post ; and if not, would the proceedings under any such visiting Comrade occupying the chair, be valid? Under Section 3, Article IV, Chapter II, Rules and Regulations, can a Post establish an initiation fee for one of its honorably-discharged Comrades, different from that established for recruits? What does the phrase, "same manner," mean? First For a Post Commander to turn the command of his Post over to a Comrade, such as is put in the case, would be clearly in violation of Sections i and 2, Article VIII, Chapter II, Rules and Regulations,* and the proceedings under such Acting- Commander would be null and void and of no effect. * ARTICLE VIII, CHAPTER II. DUTIES OF OFFICERS. SECTION I. It shall be the duty of the Post Commander to preside at all meetings of the Post; to enforce a strict observance of the Rules and Regu lations and By-Laws, and all orders from proper authority, to detail all officers and committees not otherwise provided for, to approve all orders drawn upon the Quartermaster for appropriations of money made and passed at a stated meeting of the Post, to forward the returns required by Chapter V, Article II ; and to perform such other duties as his charge may require of him. SEC. 2. The Vice Post Commanders shall perform such duties as are required of them by the Ritual, and, in the absence of the Commander, shall take his place in the order of their rank. If neither of them are present, the Post shall elect a Commander pro tempore. NOTE For Section 3, Article IV, Chapter II, see Opinion III. 124 OPINIONS OF JUDGE ADVOCATES-GENERAL Second I am of opinion that a Post must have a regular and uniform initiation fee, and that it can not establish different fees for different applicants, for this would be in violation of the sim plest privileges of the fairness, impartiality and uniformity which is supposed to pervade all law. The meaning of the phrase "same manner," in the section referred to, is, in my judgment, that all forms, reports and proceedings, (save those excepted by the rule, to-wit, " Muster" and " Taking anew the obligation,") must be observed as in the case of an original applicant. OPINION LXXXVII. MARCH 26, 1878. National Encampment A Past Department Commander, though a member of a Post in another Department than that of which he was Commander, is a member of the National En campment, but not a member of his present Department. A Comrade, formerly a Department Commander, be comes a member in good standing of a Post of a Depart ment other than the one of which he was Commander, under Article II, Chapter III, and Section i.* Article II, Chapter IV, f Rules and Regulations, is he a member of his present Department Encampment and of the National Encampment? I am of opinion that the Comrade is a member of the Na tional Encampment, but not a member of the Department Encampment other than that of the Department of which he was Commander, and then only while a member in good stand ing of a Post of such Department. The language of Article II r *See Article II, Chapter III, at close of Opinion XVIII. t Paragraph 3, Section I, Article II, Chapter IV. "Of Past Department Commanders who have served for a full term of one year, or who, having been elected to fill a vacancy, shall have served to the end of the term, so long as they remain in good standing in their several Posts." ******** OF THE GRAND ARMY OF THE REPUBLIC. 125 Chapter III, is not explicit, but any other construction than the one above given would seem to be a forced construction, and not within a true meaning of the Article. While as to membership of the National Encampment the same difficulty does not arise, for in that case Section i, Article II, Chapter IV, must mean from the nature of things : Any Past Commander of any Department. NOTE See Opinions CXI and CXII. OPINION LXXXVIII. MAY 16, 1878. Discharge A Post has nothing to do with granting an honorable discharge. Application for discharge may be withdrawn. A Comrade in good standing applies to his Post Com mander, at a regular meeting, for his discharge. Can such Comrade, before his discharge is granted, withdraw his application, without the consent of a majority of his Post, at some subsequent meeting? I am of opinion, under Section 3, Article IV, Chapter II,* Rules and Regulations, a Post has nothing to do with the hon orable discharge of a Comrade. Under said Article, it is a Comrade s right, if he is in good standing, to make application at a regular meeting to the Post Commander, and at a subse quent meeting to have his discharge, which is the duty of the Post Commander to sign, and the Adjutant to attest. If I am correct, then it is unnecessary to pass upon the ques tion of the Comrade s right to withdraw his application in this case. It appears that no question has arisen between the appli cant and the Post Commander, and that would seem to be a matter solely between themselves, with the right of either party to appeal to higher authority. * See Section 3, Article IV, Chapter II. at close of Opinion XLV. 126 OPINIONS OF JUDGE ADVOCATES-GENERAL OPINION LXXXIX. AUGUST 2, 1878. Applicant for membership Must be a ballot. If an applicant for admission to Post membership is re ported upon by the committee unfavorably, is it necessary to ballot on his election, or does the report of the commit tee settle the question of his admission? Whatever the report of the committee, I am clearly of opinion that there should he a ballot. See Section 4, Article II, Chap ter II, Rules and Regulations.* OPINION XC. AUGUST 2, 1878. Officer Must be installed before he can act. Can a Department officer be considered, and act as such, without being regularly installed? In my opinion he can not. The old incumbent does not re tire, and there f is no vacancy until the officer is duly installed. See Section 2, Article V, Chapter III, Rules and Regulations; also. Opinion IX. NOTE See, also, Opinion CII. *SECTION 4, ARTICLE II, CHAPTER II. SECTION 4. After the reading of the report, the Commander shall give opportunity to any Comrade having objections to the election of the appli cant to state the same, after which a ballot with ball ballots shall be had. If, on a count of the balls deposited, it appear that not more than twenty are cast, and two or more of them are black, the candidate shall be declared rejected; but, if more than twenty are cast, then an additional black ball for every additional twenty shall be necessary to reject. If a less number of black balls than above provided be cast, the candidate shall be declared elected, and no reconsideration of a ballot shall be had after the Com mander has announced the result thereof; but, should the result of the bal lot be unfavorable, and the Commander suspect any mistake, he may, at his discretion, before declaring the vote, order a second ballot, the result of which shall be final. See, also, Opinion CXXXVIII. OF THE GRAND ARMY OF THE REPUBLIC. 127 OPINION XCI. AUGUST 24, 1878. Assessments for burial expenses illegal. A Post By-Law states that upon the death of a Com rade, and when he is buried at the expense of the Post, an assessment of one dollar shall be levied upon each member. Is such By-Law legal? I am of opinion that, under Opinion LXIII, January 25, 1875, (which governs,) that this By- Law is illegal. OPINION XCII. SEPTEMBER 10, 1878. Charter-members Comrades must have transfer card or honorable discharge. In order for a Comrade to be admitted as a Charter- member of a new Post, must he have an honorable dis charge or a transfer card? Is Opinion XXXV, May 25, 1872, which was adopted by the National Encampment, in conflict with Section I, Article III, Chapter II, Rules and Regulations?* A member may be admitted as a Charter-member of a new Post upon a transfer card, (see Section I, Article III, Chapter II, Rules and Regulations.) The Opinion referred to was rendered in 1872, and the Section referred to was adopted in 1874, so that part of the Opinion referred to, which would seem to indicate that a Comrade must have an honorable discharge in order to be admitted as a Charter-member of a new Post, can not now be regarded as operative. NOTE See Opinions LXXVI1I and LXXIX. * See this Section at close of Opinion LXXVIII. 128 OPINIONS OF JUDGE ADVOCATES-GENERAL OPINION XCIII. DECEMBER 4, 1878. Past Post Commtmder Does not lose his standing as a Past Post Commander. Does a Past Post Commander, by joining a Post other than the one in which he was a Commander, or by becom ing a Charter-member in a new Post, though both the old and the new Posts may afterwards surrender their Charters, lose his standing as a Past Post Commander? I think not, for the reason that, having been elected and having served as a Post Commander, he has, by so doing, gained a right to certain honors and positions under the Rules and Regulations, of which he can not be deprived except by a change in the Rules and Regulations, while he is a member in good standing of any Post. NOTE See Opinion XCIV. OPINION XCIV. DECEMBER 5, 1878. Past Department Commander When he accepts a discharge loses his position as a Past Depart ment Commander. Can a Past Department Commander, when he has re ceived an honorable discharge and then has been re-admit ted to the Order, assume the honors and positions due to a Past Department Commander without having served again as a Department Commander. I think not, for the reason that Section 3, Article IV, Chapter II, Rules and Regulations,* would seem to treat such a member when applying for re-admission, as a recruit, making only the exception that he need not be mustered. And it is a rule of law that where exceptions are expressly made, all other matters are expressly excluded save those especially excepted. There is * See this Section, Rules and Regulations, at close of Opinion XLV. OF THE GRAND ARMY OF THE REPUBLIC. 129 nothing bearing directly upon the question in the Rules and Regulations, but the above-mentioned rule, together with the common interpretation of the word "discharge," and a reason able construction of the Section referred to, would lead to the view that a member once discharged and again admitted can not have a record anterior to the date of his last admission. OPINION XCV. JANUARY 29, 1879. Post Power of Can accept the resignation of its Commander. Department Commander May issue order to annul illegal proceedings of a Post. Department Commander Can overrule decisions of a Post Commander without an appeal hav ing been taken. The Commander of a Post resigns ; his resignation is accepted by the Post and notice is given of an election to fill the vacancy at the next regular meeting of the Post, at which meeting the point is taken, and sustained by the Chair, that a Post can not accept the resignation of its Commander, but that it must be done by the Depart ment Commander, and no election is held. At the meet ing next following, the Senior Vice-Commander of the Department is present ; he reads an order from the De partment Commander directing him, the said Senior Vice- Commander, to proceed to the Post at their meeting and do what he thinks best in the premises, and declaring that the Post is the superior of its Commander. And the Se nior Vice-Commander orders an election for a new Com mander to proceed, which was held under the protest of the Post Commander who had resigned ; a Commander is elected and installed at the meeting The Post Com mander who had resigned appeals from said order from Department Headquarters, protests against all the proceed ings at the last mentioned meeting of the Post, and raises the following points : 9 130 OPINIONS OF JUDGE ADVOCATES-GENERAL First Can an order be issued instructing the Senior Vice-Commander of the Department to amend the pro ceedings of a Post in his Department, where every order has been obeyed by the Post Commander, except in ex treme cases? Second Is it legal for a Post Commander to decide points of order in a Post meeting as per Rules and Regu lations of the Grand Army of the Republic ; and can the Department Commander overrule the decisions of the Post Commander without an appeal having been taken in due form ? Third How can a Post Commander carry out his ob ligations if the Comrades of his Post are his superiors? Fourth Can an officer, superior in rank, designate his inferior officer to carry out an order? The case covers sufficiently the points put for my decision, though it by no means covers all the matters and questions which might arise in the papers referred to. And I shall confine my self strictly to the points raised by the appellant, and my opinion is as follows : First That an order can be issued instructing the Senior Vice-Commander, or any other Comrade, to cause to be an nulled or reverse the proceedings of a Post : Provided, The order comes from a superior authority, and the proceedings to be an nulled or reversed are illegal, and the proceedings in this case, as regards the ruling of the Post Commander upon the accept ance of the resignation as set forth in the appeal, in my judg ment, were illegal. Second That it is legal for a Post Commander to decide points of order in a Post meeting, and that a Department Com mander can overrule the decisions of a Post without an appeal. (On the latter point see Opinion LXXXVI, October 18, 1877, under "First.") Third That an opinion upon the third point is not necessary to a solution of the case at hand, and is too general and indefi nite for any satisfactory answer, though it may be said there OF THE GRAND ARMY OF THE REPUBLIC. 131 appears to be nothing inconsistent between the rights of Com rades and the duties of Commanders. Fourth That the Opinion expressed on the first point covers the fourth point raised. None of the points raised seem to pre sent the real point at issue, which is : Can a Post accept the res ignation of its Commander? In my opinion, it can. The Post Commander receives his office at the hands of his Post Com rades to their hands he returns it. If he is inclined to give it up before the expiration of his term of office, the power to accept a resignation must reside somewhere, in the absence of any Rule or Regulation on the subject, and, following the analogy in all similarly instituted bodies, it must reside in the body which con fers the office to be resigned. OPINION XCVI. JANUARY 20, 1879. Post Organized after third quarter entitled to representation in Department Encampment. Is a Post, organized and in working order, after the third quarter of the year and before the annual meeting of the Department Encampment, entitled to representation in the Encampment? By Section 3, Article II, Chapter III, Rules and Regulations,* every Post is entitled to representation in the Department En campment, if not in arrears. In the case put the Post can not be in arrears for reports, for none are due from it until the first quarter, and if not in arrears for dues, and have elected dele gates at the proper time, the delegates should be admitted. * See this Section with Opinion XVIII. 132 OPINIONS OF JUDGE ADVOCATES-GENERAL OPINION XCVII. JANUARY 21, 1879. Membership; Eligibility Service in revenue marine does not render one eligible. Can one who served during the late war in the United States revenue marine become a member of the Grand Army of the Republic? Article 4, Chapter I, Rules and Regulations, confines member ship to those honorably discharged after serving during the late Rebellion, from the United States army, navy or marine corps, distinct and well-defined and well-understood branches of the service, and they do not, in my judgment, include the revenue marine, still another and distinct branch of the Government service. Therefore my answer would be in the negative. NOTE See, also, Opinion XLVII. OPINION XCVIII. JANUARY 21, 1879. Officers Installation of in December void. Representation Failure of Post to make surgeon s report sufficient to exclude Post from De partment Encampment. If a Post Commander take upon himself to install in December the newly-elected officers of his Post, instead of January, as prescribed by the Rules and Regulations, would not the installation be void, and would not the old officers hold over until their successors were duly installed? Should not the officer so doing make report of his doings to the Department Headquarters? A Post makes no Surgeon s report during the year. Is not that sufficient to exclude the Post from representation in the Department Encampment? OF THE GRAND ARMY OF THE REPUBLIC. 133 My answers are as follows : To the first, yes ; to the second, he should not do so at all ; to the third, yes, if the Surgeon has been required by the Medi cal Director under the requirements of the Surgeon-General to make any return ; otherwise, no. OPINION XCIX. MARCH 29, 1879. Membership Contract-Surgeon not eligible. An applicant for membership to the Grand Army of the Republic was a Contract-Surgeon, afterwards commissioned by the President and confirmed by the Senate, but he never accepted commission, and never was mustered into service. Is he entitled to membership? Clearly not, for he can not be said to have been honorably discharged from the United States army, navy or marine corps. See Article IV, Chapter I, Rules and Regulations. NOTE See Opinion IV for Article IV, Chapter I. OPINION C. MARCH 29, 1879. Balloting Can not be for several candidates collectively. Is it proper for a Post to ballot for several candidates collectively? Certainly not supposing the Post wanted to black-ball one and elect the others, how could it be done on a collective ballot (if I may use that expression?) 134 OPINIONS OF JUDGE ADVOCATES-GENERAL OPINION CI. MARCH 29, 1879. Records Can not be altered. Posts May adopt Rules of Order. A Post adopts a motion ; at the next meeting the records of the meeting at which the motion was adopted, are read for approval, when a motion is made to alter the record so that it shall appear as if the motion was never adopted. Is such a motion in order? Do the Rules of Order for the National Encampment govern the action of different Post meetings, so far as they appear applicable? To the first inquiry, I answer, that such a motion would not be in order ; the record can not be changed except to correct an error. To the second inquiry, I answer, they do not ; each Post can adopt Rules of Order of its own not inconsistent with the Rules and Regulations.* OPINION CII. MARCH 29, 1879. Officers Installation Senior Past Post Commander may install Officer detailed to install has no authority until he reports for duty Officer must be installed before he is qualified. A certain Comrade is specially detailed to muster the officers of a Post at a certain time, at which time he fails to announce himself to the Sentry and to appear, though present in an adjoining room and informed that the Post is * ARTICLE X, CHAPTER II. BY-LAWS. Posts may adopt By-Laws for their government, not inconsistent with these Rules and Regulations, or the By-Laws or Orders of the National or Department Encampments, and may provide for the alteration or amend ment thereof. OF THE GRAND ARMY OF THE REPUBLIC. 135 ready, and the Senior Past Post Commander musters in the officers of the Post, and I am asked as follows: First Were these officers regularly installed? Answer My answer is, yes ; see Paragraph 3, of first page of Installation Service.* Second Had the Comrade so detailed, any authority under the order, so far as the Post is concerned, until he had presented himself to the Post as Mustering Officer? Answer I think not. Third Is any officer elected but not installed qualified to act? Answer No.f Fourth Was the Comrade so detailed justified in his re fusal to obey his orders, he being able to, and everything being in readiness? Answer I can not answer until he has had a chance to be heard. OPINION CIII. MAY 6, 1879. Motion To "proceed to close" or to "adjourn" not in order. Is a motion to "proceed to close" in order? Should such a motion be governed by the usual parlia mentary rules governing motions to adjourn? Is a motion to adjourn in order? * Should the Mustering Officer, from any cause, fail to be present at the time of installation, the Senior Past Post Commander will act as Mustering Officer. (Installation Service.) t See Opinion XC. Also, Opinion IX. 136 OPINIONS OF JUDGE ADVOCATES-GENERAL The third question is already covered by Opinion LXXXV, February 27, 1878, which would seem, by inference, to cover the first question and to the same effect. Such is my opinion ; this obviates the necessity of passing upon the second question. OPINION CIV. SEPTEMBER 25, 1879. Membership Woman not eligible. A woman who rendered important service to the Gov ernment as bearer of dispatches, and in procuring informa tion within the Rebel lines, and who, in performing such service, suffered much and made great sacrifices, and who was arrested as a spy and barely escaped a public execu tion, desires to become an honorary member of a Post of the Grand Army of the Republic. Is she eligible? No such membership is known to the Order. The National Encampment has never provided for honorary membership. None but soldiers and sailors who served during the Rebellion are eligible to membership. NOTE Opinion XXXI, April 15, 1872. OPINION CV. DECEMBER 17, 1879. Court Martial No appeal from the action of the reviewing officer. A Comrade, tried by Post Court Martial, and sentenced to suspension for ten years, appeals to the Department Commander, who disapproves the finding of the Court Martial, and reverses the sentence of suspension. Has the Post or its officers, who are prosecuting the case, the right of appeal to the Commander-in-Chief ? OF THE GRAND ARMY OF THE REPUBLIC. 137 There is no such right of appeal. A Court Martial, where the Rules and Regulations are silent, is governed by military law and usages.. In this case, the proper reviewing officer passed upon the sentence, and no appeal is granted to the prosecuting authority. The Department Commander may submit any of the questions to National Headquarters, but this, with him, is entirely a matter of discretion. NoTE-See Opinions I, LVI, LX1V, LXXIII and CXLV. OPINION CVI. DECEMBER 17, 1879. Past Commanders, or officers who serve for the period of their election, entitled to the honors. Are Past Officers who have served three months the last three months of the year entitled to Past honors, and to be Past Commanders? Past Officers, who were elected to fill a vacancy, and served to the end of the term, are entitled to all the honors of a full term. So long as they remain in good standing in their respect ive Posts, they are entitled to the honors of their grade, as Past Officers. OPINION CVII. JANUARY 6, 1880. Department Officer May also be an officer of his own Post. Court Martial Junior Vice-Commander of Department may be appointed on. Does the election of a Comrade to a Department office remove him from the jurisdiction of the Commander of the Post of which he is a member? Can a Post Commander in a special order convening a Post Court Martial, appoint as a member of the Court a 138 OPINIONS OF JUDGE ADVOCATES-GENERAL member of the Post who is Junior Vice-Commander of the Department? When a Department officer is on duty as a Department officer, he is not subject to the orders of the Commander of the Post; but he is entitled to the rights and privileges of a member of his Post, if he sees fit to avail himself of them. He must pay his dues, and he may at the same time be an officer of the Post, and when acting as a member or officer of the Post, he is under the jurisdiction of the Post Commander. The Post Commander, by virtue of his office, is a member of the Department Encampment, and may himself be a Depart ment officer. The Post Commander, in detailing a Court Martial, should exercise a sound discretion. He should not select those near of kin to the accused, or those known to entertain prejudice, and should not detail a Comrade who would probably be the review ing officer. The accused could challenge, for cause, any such member. But if the Junior Vice Commander of the Depart ment, detailed by the Commander of his Post as a member of a Post Court Martial, sit unchallenged as a member of the Court, the proceedings will not thereby be rendered invalid. It may so happen that a Comrade who has served as a member of a Post Court Martial may subsequently be elected Department Commander, and when the proceedings reach Department Head quarters, he may be in the position of reviewing officer. In which case, analogy would suggest that the proceedings be for warded to the Commander-in-Chief, or the Senior Vice Com mander act as reviewing officer in passing upon the case. But the contingency has not arisen, and that question is not before me. OPINION CVIII. JANUARY 6, 1880. Dropped Members Where his own Post is disbanded may be re-admitted by Department Com mander. May hecome Charter-member of a new Post. In what manner can a Comrade dropped for non-payment of dues regain his standing in the Order, if the Post of OF THE GRAND ARMY OF THE REPUBLIC. 139 which he was a member has disbanded? Can such a Comrade become a Charter-member of a new Post? The applicant for re-admission should pay into the Department treasury the amount he owed his own Post ; and the Department Commander, in his discretion, may re-admit him to the Order, and approve his application to join another Post ; or, he may become a Charter-member of a new Post. NOTE See Opinions XXXV, XLII, CXV and CXVI. OPINION CIX. JANUARY 12, 1880. Department Encampment Can be no proxies. Can members of the Department Encampment be repre sented in the sessions of that body by proxy? And if proxies are allowed, can a Comrade, already a member of the Encampment, hold a proxy or proxies, and, in that capacity, cast his own and one or more proxy votes? The Rules and Regulations provide that the Department En campment shall consist of the officers named and referred to in Article II, Chapter III,* and the number of members or alter nates therein designated, selected by ballot of the several Posts. No other persons can act as members of a Department Encamp ment. By Article VIII, Chapter III,t "Each member, present at a meeting of the Department Encampment, shall be entitled to one vote;" and since provision is made for alternates, and * See this Section at close of Opinion XVIII. t ARTICLE VIII, CHAPTER III. VOTING. Each member present at a meeting of the Department Encampment shall be entitled to one vote. The ayes and noes may be required by any three members representing different Posts. 140 OPINIONS OF JUDGE ADVOCATES-GENERAL vacancies may be filled in the manner provided in Chapter II, Article VII, Section 3,* it is considered that only those members or their alternates, duly elected, who are present have a right to a vote at a meeting of the Department Encampment. The provision that no proxy or substitute can act for a Post Commander may seem hostile to this view, but that may be in tended to prevent a Vice-Commander or Commander pro tern- pore from representing a Post in Department Encampment, f OPINION CX. JANUARY 17, 1880. Court Martial For a member of National Encampment, Commander-in-Chief convenes the Court Same if the Department Commander is the accuser. The person who signs the charges is the accuser. Has the accused, who is a member of the National En campment, the right to be tried by a Court Martial con vened by order of the Commander-in-Chief, the offense with which he is charged having been committed in his ca pacity of a Department officer? The charges having been preferred by the Department Commander, has the accused the right to be tried by a Court Martial convened by order of the Commander-in- Chief? I am inclined to accept the natural meaning of the language used in Chapter V, Article VI, Section 3, Rules and Regulations which is as follows: " Members of the National Encampment and offcers of the National Staff shall only be tried by Courts convened by order of the Commander-in-Chief." No exception is made in case the offense is committed against a Department or in his capacity of a Department officer. And * ARTICLE VII, CHAPTER II. SECTION 3. Posts may fill any vacancy in their offices at any stated meeting, notice of such contemplated action having been given at a previous meeting. f Re-affirmed in Opinion CXIII. OF THE GRAND ARMY OF THE REPUBLIC. 141 there would seem to be reason for this construction, for he is ac cused of an offense against the Order, and a conviction must affect his standing as a member of the National Encampment. If the Department Commander is the accuser or prosecutor, the Court should be convened by the Commander-in-Chief. It has been contended that an officer may sign the charges and specifications without being the accuser or prosecutor, but I am of the opinion that the person preferring the charges is prima facie the accuser, and that, in this case, the Court Mar tial for the trial of Comrade T. upon the charges and specifica tions preferred by Comrade H., Commander of the Department of N , should be convened by order of the Commander- in-Chief. OPINION CXI. JANUARY 17, 1880. Department Encampment Past Commanders transferred from another Department, not enti tled to a seat. Is a Comrade who has joined a Post of this Department by transfer, having previously served as Commander of a Post in another Department, entitled thereby to a seat and vote in the Encampment of this Department? He is not. NOTE Same principle decided in Opinions LXXXVII and LXII. OPINION CXII. JANUARY 17, 1880. Department Encampment Same as Opinions CXXXVII and CXI. Can a Post Commander of a P^ost in this Department, who has been transferred by this Post, and who isnow a member in good standing of a Post in an adjoining De partment, be admitted to a seat and vote in the Encamp ment of this Department? 142 OPINIONS OF JUDGE ADVOCATES-GENERAL He can not. This and the previous question (Opinion CXI) are settled by the Judge Advocate-General, Opinion LXXXVII, March 26, 1878, which Opinion was approved by the National Encampment. OPINION CXIII. JANUARY 17, 1880. Department Encampment No proxies. Can a Post, where it is impracticable for its Representa tives to attend the Department Encampment, issue proxies? It can not. This case was decided by Opinion CIX, January 12, 1880. OPINION CXIV. JANUARY, 17, 1880. Membership Eligibility Service in the Rebel army excludes. A person who, in the early part of the war, was forced into the Rebel service, but escaped as soon as possible and subsequently served faithfully in the Union army, desires to become a member of the Grand Army of the Republic. Is he eligible? Opinion IV of the Judge Advocate-General, rendered August n, 1871, decides a parallel case in the negative. If he was forced into the Rebel service, and was actually kept there by force until his escape, it would seem to be a suitable case for the Na tional Encampment to grant relief. NOTE See, also, Opinion CXXXVI. OF THE GRAND ARMY OF THE REPUBLIC. 143 OPINION CXV. JANUARY 31, 1881. Member Re-admission of If a member under the Grade system, it must be an application and muster. If an honorable discharge, on application rind taking anew the obligation. Dropped members re-admitted. Does a Comrade, once initiated in the Grand Army of the Republic, require to be again put through the formula? Has not a former Commander of a Department the right to be a member of any Post of the Department if he pays his dues, without further initiation? Does a former Grand Commander of the Grand Army of the Republic require an initiation into the new Order provided he pays his dues? A Comrade who has been Commander of a Post of the Grand Army of the Republic, and also Commander of a Department, but who has not been in the organization under the present regulations, is now desirous of attaching himself to a Post of that Department. In view of the fact of his having passed through all the formalities of ini tiation, are there any other requirements essential for him except to be balloted for and to sign the new Rules and Regulations? Neither of these questions contain the important information how and when the Comrade ceased to be a member of the Order. If a definite opinion is desired it would be well for a state ment, containing all the essential facts in the case under con sideration, to be forwarded to the Judge Advocate of the Department. If the connection of the Comrade with the Grand Army of the Republic ceased before the introduction of the Grade sys tem, or during its continuance, provided he never took the obligations of the third grade, his application must be received and acted upon the same as if the applicant had never belonged 144 OPINIONS OF JUDGE ADVOCATES-GENERAL to the Grand Army. See Rules and Regulations, Chapter II , Article II, Section 10.* A Comrade, honorably discharged, can be re-admitted by filing a new application, to be regularly referred and reported on, and upon receiving a two-thirds vote of the members present, and voting at a regular meeting, he shall be admitted without re- muster, on taking anew the obligation. Chapter II, Article IV, Section 3, Rules and Regulations, and by Section 4,f members of disbanded Posts who were in good standing at the time of such dissolution shall receive from the Assistant Adjutant-General of the Department transfer cards which shall have full force. It was decided by the Judge Advocate-General (Opinion XXXV, May 25, 1872,) that a Comrade, dropped from the rolls of his Post for non-payment of dues could not join a new Post without first obtaining an honorable discharge from the Post of which he was previously a member. It was also decided (Opin ion XLII, December 19, 1872,) that Comrades dropped from the rolls of their Posts for non-payment of dues, and desiring to re-enter the Grand Army, but, meanwhile, the Post to which they formerly belonged having been disbanded, that they could be restored to membership, by paying into the Department treasury the amount they owed their Post, and receiving the approval of the Department Commander, if their application to join an existing Post or to be organized into new Posts. If the cases in question do not come within the general rules above referred to, it will be necessary to forward a more definite statement of the facts and circumstances of each case. NOTE See, also, Opinions V, CVIII, CXVI and CXX. * See this Section at close of Opinion V. t SECTION 4, ARTICLE IV, CHAPTER II. SECTION 4. Members of disbanded Posts, who were in good standing at the time of such dissolution, shall receive from the Assistant Adjutant- General of the Department, transfer cards, which shall have full force. See Section 3, Article IV, Chapter II, at close of Opinion III. OF THE GRAND ARMY OF THE REPUBLIC. 145 OPINION CXVI. FEBRUARY 24, 1880. Dropped Members of disbanded Posts Department Commander may organize such persons into new Posts, or approve their applicatian to join other Posts. Department Commander May remove disabilities of dropped members of disbanded Posts. Commander of the Post Can not call in question the standing of a Charter-member. Certain members of a disbanded Post, who had been suspended for non-payment of dues, and subsequently dropped by authority of the Department Commander, with other persons whose eligibility is not questioned, became Charter-members of a new Post, and, July 14, 1879, were duly mustered, and A. B. was elected Post Commander. At the annual meeting in December certain members of the defunct Post, dropped as aforesaid, were elected offi cers of the new Post The said Post Commander, in gen eral orders, declared the election of said officers irregular and void, on the ground that, by their default while mem bers of the defunct Post, they were ineligible. The documents, which include a re-written statement by the Department Commander of any unpaid dues, and full authority from him to muster the aforesaid officers, are too voluminous to be here inserted. A Post is formed by authority of the Department Commander, on the application of not less than ten persons eligible to mem bership in the Grand Army of the Republic. (Chapter II, Article II, Section i, Rules and Regulations.) The acts of the Department Commander and Mustering Offi cer, in admitting Charter-members to membership in the Grand Army, are, to a certain extent, judicial. They are required to pass upon the eligibility of the applicants to membership. By making these persons Charter-members of a new Post, and organizing and mustering them, the Department officers have declared that they are eligible to membership in the Grand Army of the Republic ; and their Comrades, who were chartered and mustered by the same authority, can not impeach collaterally, and thus overrule the action of the Department Commander. Indeed, it would seem probable from the record furnished, that rejecting dropped members of the disbanded Post, less than ten 10 146 OPINIONS OF JUDGE ADVOCATES-GENERAL persons eligible to membership made application to be formed into the new Post ; and that the legal existence of the Post, and the standing in the Order of its Commander and all its mem bers, rest upon the same tenure as the dropped members of the defunct Post. A Comrade, dropped from the rolls of his Post for non-pay ment of dues, can not become a Charter-member of a Post without obtaining an honorable discharge from the Post of which he was previously a member. Neither can a Department Com mander issue a Charter to form a new Post to members of an existing Post who are in arrears for dues. (Opinion XXXV, May 25, 1872.) But in case of a disbanded Post, the Department becomes the successor of the Post when it is dissolved, and inherits its property and its records. If a member is in default he must settle with the Department instead of his Post, which has ceased to exist ; and the Department Commander, in his discretion, may re-admit him to the Order. He may organize such persons into new Posts, or approve their application to join other Posts. (Opinion XLII, December 19, 1872.) These persons are not in arrears to Post 24, or to any existing Post. It is a matter between them and the Department. The Department Commander becomes the administrator, so to speak, of a disbanded Post. He alone has the authority to give trans fer cards and honorable discharges to its members. It is for him to say when they may be Charter-members of new Posts, and he can remove their disabilities to enable them to join exist ing Posts. We have seen that upon the dropped member of a disbanded Post making satisfactory settlement with the Department, it is within the discretion of the Department Commander to admit him as a Charter-member of a new Post. When he has been so chartered and mustered, the presump tion is that all the necessary preliminary steps have been taken, and this presumption is so far conclusive that the Commander of the new Post can not read him out of the Order or ignore his claims as a member of the Post. OF THE GRAND ARMY OF THE REPUBLIC. 147 If the discretion of the Department Commander has been im properly exercised, or if the member made use of improper means to secure his restoration, or if the mustering officer failed in his duty, these violations of the Rules and Regulations must be inquired into in another manner. As to other members of the disbanded Post, who were dropped for non-payment of dues, upon the Department Commander re admitting them to the Order, and approving their application, they may be admitted to the new Post as provided in Section i, Article III, Chapter II, Rules and Regulations.* OPINION CXVII. MARCH 5, 1880. Record Proceedings, presumption in favor of the correctness. At a special meeting of the Post certain resolutions were adopted. Two objections are assigned one to the subject-matter of the resolutions, the other to the legality of their adop tion. [The statement is indefinite and the resolutions and accompanying documents are omitted.] The resolutions seem to be in the nature of a disavowal, and if they are the sentiments of the Post, legally expressed, I fail to see how they can be objectionable on account of violating Article XI, Chapter V, Rules and Regulations. As to the second question, I am not in possession of sufficient facts to show that such action could not legally be taken at that meeting, and every presumption is in favor of the correctness of the proceedings. It appears, from the statement furnished, that the Post Com mander entertained the resolutions, and that no appeal was taken from this decision. *See Article III, Chapter II, at close of Opinion LXXVII. 148 OPINIONS OF JUDGE ADVOCATES-GENERAL OPINION CXVIII. MARCH 16, 1880. Dropped member, living in another Department than his own, may be reinstated in the Depart ment in which he lives. A member of a Post in the Department of Massachu setts dropped for non-payment of dues, now living in the Department of Connecticut, desired to be reinstated, but is unable to go to his Post to be re-obligated. How can he be reinstated? "The Department Commander may, in certain cases, detail a staff officer to muster applicants, who can not personally visit the Post for that purpose." (See page 16 of the Manual adopted at Albany, June 18, 1879.) By Opinion XLVIII, of the Judge Advocate-General, April 17, 1873, "Whatever right a Department Commander has in his own Department, the Commander-in-Chief has throughout the Order." The member can remit all dues to his Post in Massachusetts, and, if re-elected, the Commander-in-Chief, upon application by his Post Commander, forwarded through the proper channel, will detail a staff officer to re-obligate the Comrade, or direct the Commander of the Department of Connecticut to make the necessary detail. OPINION CXIX. MARCH 16, 1880. Correspondence Military usage. The case is sufficiently shown by the Opinion. In a matter between the Department of Massachusetts, or a Post of the Department, and one of its own members, in which the good officers of a Post Commander, Department of Connec ticut, or a Comrade, of that Department, are involved. I can OF THE GRAND ARMY OF THE REPUBLIC, 149 not regard it as official business, in which the correspondence must follow military usages, as is required between Departments and Posts in different Departments. OPINION CXX. MARCH 16, 1880. Post Commander Must have special detail to re-obligate a member of another Department. Has a Post Commander the authority, without a special detail emanating from National Headquarters, to muster a Comrade into a Post into another Department, or to re- obligate him after having been dropped for non-payment of dues? I do not find such authority in the Rules and Regulations or in any decisions approved by National Encampment. NOTE See Opinions CVIII, CXVI and CXV1II. OPINION CXXI. MARCH 16, 1880. Post Officers Post Commander When Commander and Vice-Commanders are absent from meeting, the Post elects pro tempore. When Vice-Commanders are absent, Commander may detail. The Senior Vice-Commander is temporarily absent from a meeting of the Post, or is occupying the chair of the Post Commander during his temporary absence. How is the vacancy to be filled, the By- Laws of the. Post being silent upon the matter ? Section 2, Article VIII, Chapter II, Rules and Regulations, reads as follows : 150 OPINIONS OF JUDGE ADVOCATES-GENERAL "The Vice-Post Commanders shall perform such duties as are required of them by the Ritual, and in the absence of the Com mander shall take his place in the order of their rank. If neither of them is present, the Post shall elect a Commander pro tempore. Section i, Article VIII, Chapter II, provides that "it shall be the duty of the Post Commander" * * * "to detail all officers and committees not otherwise provided for," etc. It is my opinion if the Senior Vice-Commander is absent, it is within the discretion of the Post Commander to detail a Com rade to act as Senior Vice-Commander for the time being ; or to direct the Junior Vice-Commander, if present, to take the place of the Senior Vice-Commander, and detail a Comrade to fill the vacancy thus occasioned. This interpretation, in case of tem porary absence, would save all unnecessary trouble. The Senior Vice-Commander, when acting as Post Com mander, has the same power as the Commander to fill vacancies. OPINION CXXII. APRIL 10, 1880. Applicant for membership should be admitted under his true name. An applicant for membership in the Grand Army of the Republic, who enlisted in the army, and was borne upon the rolls of his regiment under the name of Donovan, but who claims that his real name is O Donnell, desires to be mustered under his true name. Can he be admitted under any other name than the one by which he was borne upon the muster rolls of his regi ment ? If otherwise eligible he may become a member of the Grand Army of the Republic, and should be admitted under his true name. Errors in the names of recruits were not unfrequent. Such errors should not be propagated but corrected. OF THE GRAND ARMY OF THE REPUBLIC. 151 The matter of identity is a question of fact to be determined by the Post, after careful investigation, and upon satisfactory tes timony. OPINION CXXIII. MAY 3, 1880. Court Martial Official rank not a ground for challenge Immaterial who prefers the charges. Specifications Form of; what they should contain. A Court Martial composed in part of Comrades who have never held the office of Post Commander, is convened by the order of the Department Commander for the trial of a Post Commander for neglecting to forward a document purporting to be an appeal or request. The document was presented to the Post Commander for his action while he was temporarily absent from Head quarters in another city, and the charges were preferred by a suspended member, and by him forwarded to Depart ment Headquarters direct. It is not good ground for challenge that a member of the Court has not held as high an office as the accused. " Details for Courts Martial may be made from any Comrades in the jurisdiction of the officer ordering the Court." If an offense has been committed, it is immaterial who signs the charges and specifications. The charges being adopted, and the Court convened by higher authority, the particular per son forwarding them, or the channel by which they reach De partment Headquarters, is of no importance. To require the accused to transact official business while on a journey, the necessity must be shown and the exigency must be explained to him. To make out a case it devolves upon the prosecution to show that the time, place and manner of presenting the document, in view of the existing exigency, were proper and reasonable, and that the document was of such character that, under all the cir- 152 OPINIONS OF JUDGE ADVOCATES-GENERAL cumstances, it was the duty of accused, then and there, to re ceive and forward it. To convict a Comrade of disobedience of the Rules and Regu lations, in failing or refusing to perform an official act, the speci fication should charge that he held the office, or otherwise state facts sufficient to show that it was his official duty to perform the act for the neglect of which he is sought to be convicted. NOTE See Rules and Forms for Court Martial, Appendix. OPINION CXXIV. MARCH 23, 1881. Court Martial Commander-in-Chief may exercise his discretion and icfuse to convene a Court Martial. Is the Commander-in-Chief compelled, by the Rules and Regulations, to convene a general Court Martial whenever charges are preferred against any member or officer of the National Encampment, or can he exercise the discretion permitted to Posts under the Rules relating to "petty cases" or charges "too trivial for a trial by Court Martial?" The .right of the Commander-in-Chief to refuse to order a trial by Court Martial is one already recognized by one of my predecessors, Judge Advocate-General Douglas, in Opinion LXV, herein. It is a privilege accorded to the regular service, and is a right which has been exercised by previous incumbents of the high office on many occasions. * RULES FOR COURT MARTIAL. If a Post deem charges, duly presented, too trivial for trial by Court Martial, yet requiring investigation, upon a motion duly made, and adopted by a majority vote of the Post, the Post Commander shall appoint a court of inquiry, of three or five Comrades in good standing, to whom the matter shall be referred, with authority to make such examination as may, by them, be deemed necessary, reporting in writing, at the earliest date, their findings and recommendations thereon for the action of the Post. OF THE GRAND ARMY OF THE REPUBLIC. 153 There is no paragraph in the Rules and Regulations which conflicts with this view of the case. Were it otherwise, no Comrade would be secure against trial by Court Martial on some trivial charge, the expense of which trial would seriously deplete the treasury and accomplish no good. The Rules on Court Martial referred to on page are evi dently intended to give to Posts a power which did not therein exist, and have no bearing upon the authority of the Com- mander-in-Chief. It is a rule of military law that subordinate officers, in for warding charges and specifications, should examine the papers carefully before giving their endorsement, to the end that only such charges should be considered as bear unmistakable evidence that a serious offense against discipline or a grave crime has been committed. This implies the right of a Department Commander to return charges which are "too trivial," or the trial of which would prove detrimental to the Order. And of course the same power in a higher degree must rest with the Commander-in-Chief. I answer, then, that the Commander-in-Chief may use his own discretion as to whether a general Court Martial shall be ordered or not. OPINION CXXV. AUGUST 29, 1881. Court Martial In matters that have no connection with the Grand Army of the Republic, Court has no jurisdiction. As members of a " Veteran Association," two Comrades of the Grand Army of the Republic have become involved in a dispute over the rightful custody of certain property which belongs to the said association of veterans. In that dispute recourse has been had to the civil courts by process of attachment, and the property has now been recovered by the association. 154 OPINIONS OF JUDGE ADVOCATES-GENERAL As a result of the dispute, charges are preferred by one of the Comrades against the other, charging, among other things, perjury. The Comrade charged is a member of the National Encampment, and the charges are sent for ward for trial by a general Court Martial. This quarrel, it seems to me, is one to be settled without ap peal to the Grand Army of the Republic. It has no reference whatever to the Grand Army of the Republic ; and if the crime of perjury has been committed and a Comrade has been injured thereby, the proper place to take the case is to a criminal court. If the charge can be sustained, then evidence of that conviction will be a sufficient ground for action by Court Martial ; until then, the Grand Army of the Republic has no right to interfere. I recommend that the charges be dismissed. OPINION CXXVI. NOVEMBER 22, 1881. Membership eligibility If the person can be identified as the soldier certified to by the Adju tant-General. How can a soldier be identified as entitled to member ship under Article IV, Chapter I, not having been mustered into the United States army, and having no discharge?* If the regiment to which he belonged was placed under the orders of United States general officers, a certificate from the Adjutant-General of the State to that effect, and a certificate that he served in that regiment, would be sufficient evidence for an examining committee ; provided, of course, the applicant can be properly identified as the soldier certified to by the Adjutant- General. * See Opinion CXXXI and CXXXII. OF THE GRAND ARMY OF THE REPUBLIC. 155 OPINION CXXVII. DECEMBER 17, 1881. Department Encampment Can be no proxy Offices A Comrade may hold official position in Department and in Post. A Comrade holding an appointment as Judge Advocate of a Department is elected Commander of his Post. Can he be present at an Encampment of the Department as Judge Advocate, and yet be considered as absent as Post Commander, so that the Post can be represented by the Senior Vice-Commander or the Junior Vice-Commander ? The language of the amendment adopted at Indianapolis (see page 799 of Journal) is plain, and its purpose well understood. The Comrade can elect to hold both positions, but upon the roll-call he can vote but once. If he is present and voting as Judge Advocate, he can not be "considered" absent in order to add one vote by proxy. The Post could have taken care of its own representation by electing another Comrade Commander, or the Comrade elected could have resigned in time to fill the vacancy. I am clearly of the opinion that the language of the amend ment admits of a literal construction, and that no Comrade can be represented by proxy who is present in the Encampment. NOTE See Opinions CVII and CIX. OPINION CXXVIII. DECEMBER 24, 1881. Office One who resides outside the limits of his own Department is eligible. Is a Comrade who resides outside of the territorial circuits of his own Department eligible to office? So long as he remains in good standing in his Department there can be no doubt of his eligibility to office. There is noth ing in the Rules and Regulations requiring a Comrade to reside within his Department. 156 OPINIONS OF JUDGE ADVOCATES-GENERAL OPINION CXXIX. JANUARY 28, 1882. Provisional Department Commander Not entitled to a seat in Department Encampment. Is a Comrade entitled to a seat in Department Encamp ment by virtue of having been a Provisional Department Commander? Section i, Article X, Chapter V, Rules and Regulations,* pro vides for the appointment of officers of Provisional Departments, and the last paragraph contains these words: "The officers thus appointed shall have, for the time being, all the duties .and pow ers of permanent officers." It is the evident intention of this paragraph that when the Pro visional Department becomes merged in the Permanent Depart ment, the powers and duties of all appointed officers shall cease ; consequently the Provisional Commander can not be recognized by the new Department Encampment, or permitted to enjoy the privileges of a Past Commander. It is also evident from the language of Paragraph i, Article II, Chapter III, that only Past Department Commanders who have been elected for a term, or to fill a vacancy, are entitled to membership in Department En campment ; and as the Rules and Regulations are very explicit in determining what shall constitute membership in such En campments, and Past Provisional Commanders are not specially provided for, I can see no reason why they should be admitted. I therefore answer the question in the negative. OPINION CXXX. MARCH 15, 1882. Posts Consent of an existing Post not necessary for the organization of a new Post. Can a Post of the Grand Army of the Republic be estab lished in a town or city where a Post already exists without * See Opinions XXVII. OF THE GRAND ARMY OF THE REPUBLIC. 157 the petitioners first obtaining the consent of the Post al ready established? The Rules and Regulations of the Grand Army of the Repub lic have vested in the Department Commander the power to grant Charters to Posts, and there is no provision anywhere requiring the permission of existing Posts to be first gained. It is not improper for a Department Commander to ascertain whether the good of the Order will be best conserved by reject ing an application for a Charter, and he may apply to an existing Post for information ; but the entire responsibility of his action must rest with him, and he may grant or reject an application without reference to any existing Post. OPINION CXXXI. JULY 20, 1882. Eligibility to Membership Enlistment without muster into the service not sufficient. Commission without muster not sufficient. Quartermaster s clerk not eligible. Being a scout without being mustered not sufficient. Enlistment, muster and honorable discharge, absolutely necessary. In the autumn of 1863 I enlisted with Captain E. M. Colver in the Third Ohio Volunteer Cavalry, but before mustering under that enlistment I was commissioned as Recruiting Lieutenant in the Ninth Ohio Volunteer Cav alry, and was engaged in that work for several months. I was unable to pass muster by reason of rupture. I then went into the Quartermaster s department as a clerk. I subsequently volunteered as a scout, and in these positions served until the close of the war. During this service I was twice captured by the Confederate forces, and each time made my escape. Am I eligible to membership in the Grand Army of the Republic? The within-named is not eligible to membership in the Grand Army of the Republic for the following reasons : 158 OPINIONS OF JUDGE ADVOCATES-GENERAL First Article IV, Chapter I, Rules and Regulations, on eligi bility to membership, says, "Soldiers and sailors of the United States army, etc." * This implies that the party must be regu larly enlisted and mustered into the service. This party was never mustered in. Second Holding a commission is not sufficient without a mus ter into the service. (Opinion XXVI, March 29, 1879.) Third Being a Quartermaster s clerk does not render a party eligibile to membership in the Grand Army of the Republic. (Opinion L, April 25, 1873.) Fourth Being a scout does not entitle one to membership, unless the party was enlisted and mustered. (Opinion XVII, December 5, 1871.) In conclusion, nothing can take the place of enlistment and muster-in to render a person eligible to membership in the Grand Army of the Republic, because there can be no " honorable dis charge," without a previous muster-in. (See Opinion CXXXII.) OPINION CXXXII. JULY 31, 1882. Eligibility to Membership Muster-in to the service absolutely necessary. Honorable discharge necessary. Alfred E. Lewis served as a musician in Company I, One Hundred and First New York Volunteers, through Penin sular campaign and at second battle of Bull Run, but was never mustered on account of his age thirteen. Can he become a member of the Grand Army of the Republic? Two things are requisite to membership in the Grand Army of the Republic : First He must be either a soldier or sailor of the United States army or navy or marine corps, or of a State regiment, etc. * See Opinion IV. OF THE GRAND ARMY OF THE REPUBLIC. lf>9 Muster-in is imperative in order to be a soldier. A citizen is not subject to orders of any United States army officer. Second Every applicant for admission must have an honora ble discharge from one or the other of these branches of the service. (See Article IV, Chapter I,* Rules and Regulations, and Section i, Article II, Chapter II.) Although the party herein named may have rendered the ser vice claimed, yet he can not be admitted to membership in the Grand Army of the Republic for the reason that he was never mustered into the service ; not being mustered, was not subject to order s, as provided in Article IV, Chapter I, and not being mustered, of course never received an "honorable discharge." (See, also, Opinion CXXXI.) OPINION CXXXIII. AUGUST 12, 1882. Eligibility to membership Persons though under the required age when enlisted and mustered into the service are eligible Discharge by reason of habeas corpus is sufficient. Two soldiers were duly mustered into the United States service, but not being of the required age, were by their parents taken out on a writ of habeas corpus, after a short service. Are they eligible to membership? One is a Charter-member of the Post. A strict construction of Article IV, Chapter I, Rules and Reg ulations, might exclude the parties from membership. But as they were duly mustered into the service, and were for a time, subject to the orders of United States officers, that part of the requirements of said Section was complied with. The next question to be answered is : Does the order of the Court in the habeas corpus proceedings take the place of a dis charge? The fact that they afterwards rendered service in the army as soldiers, though not then mustered in, tends to show * See Opinion IV. 160 OPINIONS OF JUDGE ADVOCATES-GENERAL that they did not of their own motion seek to be released by pro cess of the Courts. Adopting, therefore, a liberal, and I think a just construction of the law, I say they are eligible and should be admitted. OPINION CXXXIV. AUGUST 12, 1882. Countersign may be communicated at another place than at a regular meeting of the Post. Can the countersign be communicated at any place other than at a regular Post meeting, and if so, how? In the Post, when in session, the O. D. communicates the countersign by order of the Post Commander. The Post Com mander, by virtue of his office, may, and should when occasion demands it, communicate the countersign to a Comrade in good standing, either at a meeting of the Post or outside of the Post. Comrades are entitled to receive the countersign from the Post Commander whenever and wherever the occasion may demand their use of it. (See Opinion CXLI.) OPINION CXXXV. AUGUST 12, 1881. Department Council of Administration Transfer card good for one year, and a Comrade who holds a transfer card not yet expired may hold his seat as a member of the Department Council of Administration. Comrade N. applied for and received transfer card from his Post sometime during the second quarter of 1882. He was a member of Department Council of Administra tion, and attended Department Encampment after the transfer was granted him. Comrade D. objected to Com rade N. acting with Council, giving as reasons therefor the OF THE GRAND ARMY OF THE REPUBLIC. 1()1 fact that Comrade N. having taken transfer card was a member of the Grand Army of the Republic at large, and therefore not a member of the Department. The objection was overruled, and on this ruling appeals. The objection is not well taken, and the ruling of the Depart ment Commander should be sustained. There is no such thing as a "member of the Grand Army of the Republic at large." Section 2, Article IV, Chapter II, Rules and Regulations,* de fines the transfer card and the standing of the Comrade holding transfer card. He is subject to the Post issuing the transfer card, "for the purpose of discipline;" the transfer card is valid for one year. During all that year he is a member of the Grand Army of the Republic. He has the entire year in which to de posit that card. He could be tried for violation of Rules and Regulations at any time within that time. Where? Within that Department and by the Post issuing card, and no place else. At the end of the year, and not till then, does he cease to be a member of that Department and of the Order, though not an active member of the Post from date of card. The Comrade referred to herein was within the limit, and while not an active member of the Post, was to all intents and purposes a member of the Grand Army of the Republic of that Department, and entitled to his seat in the Department Encamp ment. NOTE See Opinions XII, LXXXVII. OPINION CXXXVI. SEPTEMBER 15, 1882. Eligibility Service in the Rebel army from whatever cause, renders one ineligible to member ship in the Grand Army of the Republic. Richard M. Jones was impressed into the Rebel army in Tennessee in 1861, being of that State. In the spring of *See Section 2, Article IV, Chapter II, at close of Opinion III. I I 162 OPINIONS OF JUDGE ADVOCATES-GENERAL 1862, his command marching through Kentucky, he de serted, came to Indiana and immediately enlisted in the Eightieth Regiment Indiana Volunteers, and served until near the close of the war, when he was discharged on account of wounds received in battle and in line of duty. He claims that he had to enter the Rebel army or hang ; that he was closely watched, but deserted at the first opportunity. He is a worthy citizen, and the Comrades where he resides (Rising Sun) say as loyal a citizen as lives. Can anything be done for him in the way of admit ting him to membership? Article IV, Chapter I, page 4, Rules and Regulations, says very emphatically " No person" etc. No exception is made to the rule. This question has been before the National Encamp ment ever since 1872. The Judge Advocate-General, in August, 1871, decided that, although the service was involuntary, still it did not constitute the case an exception to the rule, and that the applicant was ineligible. This decision still remains unaltered. I think this the only safe rule, as laid down in Article IV, above referred to. It may seem harsh, in a case like this, but if the door is once opened there is too much opportunity given for un worthy persons to make statements of involuntary service, etc., which, at this late date, could not be controverted, even though untrue. NOTE See Opinions IV and CXIV. OPINION CXXXVII. SEPTEMBER 15, 1882. Application for membership on transfer card -Must be by a regular application. Transfer card should accompany the application. A Comrade from another Post, having a transfer card, being present at a meeting of this Post, wished to join this Post on his transfer card. The rules being suspended, OF THE GRAND ARMY OF THE REPUBLIC. 163 motion was made that he be accepted. The motion was put by the Post Commander and carried under the head of "Good of the Order" by viva vocc vote. The question was raised as to the legality of the admission of the Com rade. A Comrade having a valid transfer card, and applying for membership to a Post otlier than the one which granted the transfer card, must have his name "proposed," that is, must make a regular application, have it referred and reported on, as in case of any applicant for membership. (Section i, Article III, Chapter II, page 7, Rules and Regulations.*) The transfer card should accompany the application. Election to membership on application on transfer card may be by ballot or viva voce. (Paragraph 2, Opinion LXXVIII.) I do not see any law for viva voce vote save the Opinion referred to, but this having been approved by the National Encampment is law until changed by the National Encampment. OPINION CXXXVIII. SEPTEMBER 15, 1882. Membership Application for Ballot must be taken after the investigating committee has reported. Where the decision of the Post Commander is in violation of the Regulations, a vote of the Post to sustain him does not cure the error. Application can not be withdrawn after investigating committee makes report, even by unani mous consent of the Post. An application for membership is made in regular form, the investigating committee made its report to the Post, the ballot is about to be taken, when a Comrade, -friend of the applicant, believing the applicant will not be elected, asks to withdraw the application ; appellant objects to per mission being granted for the reason that it was in violation * See Opinion LXXVIII, and Section I, Article III, Chapter II, at close of Opinion. 164 OPINIONS OF JUDGE ADVOCATES-GENERAL of Section 4, Article II, Chapter II, Rules and Regula tions.* The Post Commander, over the objection, granted the withdrawal of the application, giving as a reason for so doing that the applicant was unworthy to become a member of the Grand Army of the Republic, it having been ascertained that applicant had been a member of the Missouri militia in 1861." Appeal was taken from decision of Post Commander to the Post, based on Opinion XVI, August 2, i878,t Page 3, Manual 1881, Paragraph 20. Chair sustained by vote of 14 to 9 contra. Post Com mander bases his decision on Opinion XV, page 27, Man ual i88i.J Should the Post Commander have permitted the with drawal of the application? The Judge Advocate of the Department from which this case comes and to whom it was first referred by Depart ment Commander, says the case presents a purely par liamentary question, and says, "When application was presented the Post was possessed of the subject-matter. When it was referred to a committee, committee pos sessed of the subject-matter. The application could not be withdrawn without the consent of the Post. With that consent it could be withdrawn up to the time of taking the ballot. The Post Commander decided that it could be withdrawn. This was erroneous, but the appeal from the decision of the Post Commander to the body and the vote of the body to allow the withdrawal cured the error, unless there is shown to have been thereby violated a constitution or a law . * See Article II, Chapter II, at close of Opinion XI. t Opinion LXXXIX. J Opinion XV herein. OF THE GRAND ARMY OF THE REPUBLIC. 165 There is but one question to be decided in this appeal, /. <?. must the ballot be taken after the report of the investigating committee has been made to the Post? Yes. Section 4, Article II, Chapter II, Rules and Regulations, says, after the reading of the report and opportunity is given for stating objections to the candidate, " ballot with ball ballots shall be had." The language is mandatory, emphatic, plain, and the action of the Commander violated this law, and the Post could not cure the violation by sustaining his decision. The application could not have been withdrawn even by the unanimous consent of the Post, much less when an objection to its withdrawal was raised. It was purely a question of law, and not of parliamentary usage. If the candidate was unworthy, as stated by the Post Com mander, all the more necessity for taking the ballot and reporting it to National Headquarters, as provided in Section 6, Article II, Chapter II, for the protection of the Order. OPINION CXXXIX. SEPTEMBER, 1882.- Badge Is personal property, but should only be worn by actual members of the Grand Army of the Republic. Has an honorably discharged member of the Grand Army of the Republic the right to wear the badge of the Order at any time after his discharge? The badge of the Grand Army of the Republic is strictly a membe? ship badge only, and denotes that the party wearing it is an actual member, and properly should be worn only by active members of the Order. However, the badge is the personal property of the Comrade, and if he be honorably discharged, or otherwise ceases to be an active member, and, having a badge, wears it, I know of no way to prevent it. 166 OPINIONS OF JUDGE ADVOCATES-GENERAL OPINION CXL. OCTOBER 16, 1882. Members of the Grand Army of the Republic and ex-Rebel soldiers can not be placed on the same footing. Funds can not be used for the support of ex-Rebel soldiers. Can the Grand Army of the Republic, or any Department Post thereof, consistently with the principles of the Order, aid in establishing or maintaining a Veteran Home, to which Mexican war veterans, who served in the Rebel army or navy, can be admitted to equal rights with Union soldiers? The Grand Army of the Republic was organized for soldiers, sailors and marines who united to suppress the late Rebellion. (Paragraph i, Article II, Chapter I, Rules and Regulations.) To assist such former Comrades as need help and protection. (Paragraph 2, Article II, Chapter I, Rules and Regulations.) To discountenance whatever tends to weaken loyalty. (Para graph 3, Article II, Chapter I, Rules and Regulations.) The Grand Army of the Republic offers a premium to disloy alty whenever it, as an Order, undertakes to provide for the maintenance of men who served in the Rebel army. No person is eligible to membership who at any time bore arms against the United States. (Article IV, Chapter I, Rules and Regulations.) If not eligible to membership, then the Grand Army of the Republic should not be taxed to aid or support them. I know of no principle of the Grand Army of the Republic whereby Rebel soldiers can be placed on an equal footing with loyal soldiers in any charitable institution of the Order. On the contrary, all the teachings of the Grand Army of the Republic are that loyalty to the Government from 1861 to 1865 with ser vice in the Union army, is to be our only guide in the chanties of the Order. If any Department, in its magnanimity, should wish to aid ex- Confederate soldiers, it must be done in the way of voluntary aid, and from funds outside of the general or special muds of the Or der; in other words, by the voluntary contributions of individual members of the Grand Army of the Republic. OF THE GRAND ARMY OF THE REPUBLIC. 167 OPINION CXLI. OCTOBER 16, 1882. Countersign Commander may give the countersign to a Comrade before the opening of the Post meeting. Post Commander must be the judge as to whether or not the occasion demands that it should be given. Whether a Commander at a regular meeting of the Post and previous to the opening, has any right to withhold the countersign from a Comrade in good standing? This query, in substance, was answered in a decision rendered August 12, 1882. The matter then came to this office through the Adjutant-General from Comrade Miller, of Prescott Post, No. i, Department of Rhode Island. The decision at that time made was on the following question: "Can the countersign he com municated at any place other than at a regular Post meeting, and if so, how? The decision was set forth in Opinion CXXXIV. This query is not very greatly different from the one on which the foregoing decision was based. I have no alteration to make in the decision as then rendered, but will add that the Post Com mander must be the judge as to whether or not the " occasion demands" that it should be given. For instance, if a Comrade known to be in good standing is about to go on a journey before the regular meeting of his Post will take place, and make that fact known to his Post Commander, I think the Comrade is en titled to receive, and should receive, the countersign from the Post Commander. I cite this as only one instance out of many that might be given. The good sense of the Post Commander, on a statement of the facts, ought to be able to determine whether the l occasion demands " that it should be given. You can not apply strict military rules to the Grand Army of the Republic. This is an organization for mutual aid and for the benefit of the Comrades in the nature of other benevolent and charitable or ganizations, and if you. apply the strict military rules that gov erned in the army you impair the objects of the Order. 168 OPINIONS OF JUDGE ADVOCATES-GENERAL OPINION CXLII. OCTOBER 16, 1882. Ballot for reinstatement should be by ball ballot. The Post Commander, after the committee had reported on the application of a candidate for reinstatement, ordered a written ballot. From this order an appeal was taken. Should the ballot have been by ball or written ballot? There can be but one mode of balloting for candidates or ap plicants for admission or readmission to the Grand Army of the Republic. That is by ball ballots. See Section 4, Article II, Chapter II, Rules and Regulations. The entire subject is plainly worded in Articles II and III of this Chapter (II) and in Section 4, Article IV of Chapter V. The voting there referred to applies to the election of a Comrade to readmission, and the ballot re ferred to can only be interpreted by Section 4, Article II, Chap ter II, a ball ballot. NOTE See Article III, Chapter II, and Section 4, Article IV, Chapter V, at close of Opinion LXXVIII. OPINION CXLIII. MARCH 14, 1883. Dismissal Must be by Court Martial. Court Martial The defendant must be in such position that he may have the ability to attend the trial, if he so desires, before a Court can have jurisdiction. Can a member of the Grand Army of the Republic who has been convicted of a crime, sentenced to imprisonment, and while serving his sentence be dishonorably discharged, without sentence of a Court Martial? If not. can he be tried by Court Martial? A dishonorable discharge comes by sentence of a Court Mar tial. No Court Martial can try any member of the Grand Army of the Republic who is absent and unable to appear before the Court by reason of confinement under sentence of any civil tri bunal or court. While the Rules and Regulations of the Grand OF THE GRAND ARMY OF THE REPUBLIC. 169 Army of the Republic are silent on this question, we must be governed by the civil and criminal law of the land, and under that, even a civil cause in which the accused is interested could not be tried while he is in confinement under sentence, much less could a criminal charge be tried and determined. Charges may be preferred, but no trial can be had until he is in such position that he, when legally summoned to appear before the Court Martial, may have the ability to attend if he so desires. OPINION CXLIV. MARCH 24, 1883. Per Capita Tax When assessed. By-Laws Change of. First Is Article II of the By-Laws of the Department of Illinois which reads "Article II, Per Capita Tax The per capita tax shall be eight cents per quarter on each member reported in good standing by each Post, to be for warded with Post Adjutant s and Quartermaster s reports on the first days of January, April, July and October," in conflict with Section 2, Article III, Chapter V, Rules and Regulations? It is not. Section 2, Article III, Chapter V, Rules and Regu lations says that each Department Encampment, at its session in January, shall assess a per capita, etc. The foregoing By-Law simply says what the amount of that assessment shall be, and as it is within the amount prescribed by the Rules and Regulations, it is not in conflict. I take it for granted that the assessment was made accordingly. Second Was the ruling of the Department Commander correct, when he held that any amendment to change the amount of the assessment must be made in writing and lay over until the next annual meeting? 170 OPINIONS OF JUDGE ADVOCATES-GENERAL Yes. Article VII, By- Laws of Department of Illinois provides : "ALTERATIONS AND AMENDMENTS. "Any alterations and amendments to these By- Laws must be offered in writing, and shall lay over until the next annual meet ing of the Encampment, and be adopted by a two-thirds vote of all the members present." OPINION CXLV. APRIL, 1883. Court Martial No appeal from the decision of Department Commander when acting as the reviewing officer of the proceedings of a Court Martial. The President and Judge Advocate of a Court Martial appeal to the Commander-in-Chief from the decision of the Department Commander in reviewing the findings and sentence of the Court, and praying the Commander-in-Chief to "order the production, before him, of the original and entire record of said Court Martial, for his examination on this appeal," with opportunity for said President and Judge Advocate of the Court to submit a brief in support of their appeal. The " Grounds of Appeal," as stated, are six in num ber, and are as follows: First That the charge, findings and sentence of the aforesaid Court Martial therein assumed to be reviewed are not therein set forth as is required by military usage and custom, which, in the absence of specific rules to the con trary, are to be followed and observed in such cases by the Grand Army of the Republic. Second That there is no provision in said order and paragraph dissolving said Court Martial or relieving the members thereof from duty on the same, and the obliga tions incumbent on such duty. OF THE GRAND ARMY OF THE REPUBLIC. 171 Third That the said order and paragraph alleges matter which is not fact, and which serves to place the under signed and said Court Martial in a false and obnoxious position. Fourth That the design and intent of said order and paragraph is not in good faith to review the proceedings of said Court Martial, and to define and correct the errors, if any, committed by said Court Martial, but to conceal their findings and to hold the officers and members of said Court Martial up to ridicule and contempt, and, further, to smother their proceedings and sentence without just reason or right. Fifth That the alleged decision of disapproval and the alleged grounds therefor are erroneous both in law and in fact. While the actual findings and sentence of said Court Martial were correct, both in law and in fact, and should have been approved. Sixth The undersigned do further appeal from said order and paragraph upon the ground that they have been and are agrieved thereby, both in their official capacity and as members of the Grand Army of the Republic, for which grievance they are entitled to redress at the hands of the Commander-in-Chief of the Grand Army of the Republic. In my opinion the first question that is presented in this case is, Can an appeal be taken from the decision of the Department Commander, rendered as the reviewing officer of the proceed ings of a Court Martial, it being his duty to review the pro ceedings? The duty of the Department Commander and the rights of the accused are very clearly defined in Section 6, Article VI, Chapter V, Rules and Regulations of the Grand Army.* * SECTION 6, ARTICLE VI, CHAPTER V. SECTION 6. No sentence of a Court Martial shall be carried into execu tion until after the whole proceedings shall have been laid before the officer ordering the same, or his successor in office, for his confirmation or disap proval and orders in the case ; and no sentence of dishonorable discharge from the Grand Army of the Republic, except by Court Martial convened 172 OPINIONS OF JUDGE ADVOCATES-GENERAL. It was the evident intent of the framers of the Rules and Reg ulations, and by the National Encampment, to place restriction upon the powers of a Court Martial, and to give the accused an additional protection from unjust or unmerited censure or dis grace. And when this power was conferred on the reviewing officer it was made an unlimited power to examine the proceed ings, and was "for his confirmation or disapproval and orders thereon." The action, then, of the reviewing officer, must necessarily be final ; no appeal is provided for either by the Rules and Reg ulations or by the United States Army Regulations. If he, the reviewing officer, approves, it gives life to the sentence of the Court, which, before his approval, had naught but form. Not so where the finding or sentence is disapproved. Such disap proval entirely destroys and sets aside the action of the Court Martial. "A disapproval of the proceedings of a Court Martial by the legal reviewing authority is not a mere expression of dis approbation, but a final determinate act putting an end to such proceedings in the particular case, and rendering them entirely nugatory and inoperative." (See Winthrop s Digest of Opin ions of the Judge Advocate-General, Section 2, page 435.,) Says the same authority, page 436, "It is quite immaterial to the legal effect of a disapproval whether any reasons are given therefor, or whether the reasons given are wellfoimded in fact or sufficient in law." 1 " 1 This being the case, then the power to approve or disapprove rests fully and entirely in the reviewing officer, and his action is a finality, and there can be no appeal therefrom. This settles all the questions raised in this appeal, and the Commander-in-Chief has no authority and can make no order that would be obligatory on the Department Commander. Whether the Department Commander acted in good faith in his decision is a matter of his own conscience and judgment, and can not be inquired into in this proceeding. NOTE -See Decisions LVI, LXIV, LXXII and CV. by order of the Commander-in-Chief, shall be carried into execution until after the whole proceedings shall have been laid before the officer next su perior to the one ordering the Court, for his confirmation or disapproval and orders thereon. DECISIONS OF COMMANDERS-IN-CHIEF. Decisions I to XIII , Inclusive, Rendered by Commcinder-in- Chief Louis Wagner, Approved by the National Encamp ment, June, 1 88 1. DECISION I. Dishonorably discharged members Re-admission of. Two cases of Comrades tried and convicted by Court Martial and sentenced to be dishonorably discharged, were submitted, their Posts, by unanimous vote, asking that the sentences be revoked and the Comrades reinstated, which recommendations were approved by the Department Com manders and forwarded to National Headquarters. Not feeling satisfied that these cases came within the pro visions of the resolution of National Encampment, page 724, Journal, 1880, I declined to give the order asked for, but referred the Posts to the decision of the Judge Advocate-General, No. XXIV, dated February 3, 1872. DECISION II. Post Commander Can not order second ballot until he has announced the result of the first. Comrade Rowe, Commander Post 5, Albany, appealed from the decision of the Department Commander of New York, under the following facts: 174 DECISIONS OF COMMANDERS-IN-CHIEF A ballot had been had under which an applicant had been duly elected, but the Post Commander, without an nouncing the result, ordered a second ballot. Discovering his error, the Commander sought to repair the wrong, but on the submission of the case to Depart ment Headquarters, it was decided that the second ballot should be completed. From this decision Comrade Rowe appealed, on the ground that the Post Commander could not reverse the action of the Comrades at the ballot-box by which the applicant had been elected. The appeal of Comrade Rowe was sustained, and the decision of the Department Commander reversed. DECISION III. Applicants for membership must be governed by qualifications in Article IV, Chapter I. No power vested in any officer to set aside provisions of Article IV, Chapter I. On a question submitted through Department of New Jersey, asking the Commander-in-Chief to give a special dispensation to muster an applicant who, being too young to enlist, had been employed in various duties with the army, I decided that the applicant must be governed by the qualifications required in Article IV, Chapter I, Rules and Regulations,* and that there was no power vested in any officer to set aside its provisions. DECISION IV. Past Post Commander who has been dropped is not entitled to the honors of that position unless again elected Post Commander. " Comrade Royce, commanding Department of the Poto mac, presented the following: *See Opinion IV. OF THE GRAND ARMY OF THE REPUBLIC. 175 " Is a Past Post Commander, who had, after service as such, been dropped from the rolls and then re-joined as a recruit, enitled to the honors of that position unless again elected as Post Commander?" I decided that the Comrade had no claim to any honors earned, or resulting from such honors, previous to the time when he was dropped. Having again become a member, he stands upon the footing of a new member. DECISION V. Eligibility One who served in revenue marine service not eligible. On the question presented by the Department of Maryland as to eligibility of an applicant who had served in the revenue ma rine service as an enlisted man, and, under the orders of the Navy Department, in blockade service during the war, I decided that he was not eligible, referring to Opinion of Judge Advocate- General, XXVII, April n, 1873. DECISION VI. One who served with a State regiment, and mustered out on a " State Discharge," eligible if otherwise qualified. On the question presented by Post No. i. New Orleans, as to eligibility of an applicant who served in the field during the Gettysburg campaign in a Pennsylvania regiment, but not mus tered into the service of the United States, who was " in service under the order of United States general officers," and at the close of the emergency was mustered out on a State discharge, I answered that he was eligible if otherwise qualified. 176 DECISIONS OF COMMANDERS-IN-CHIEF DECISION VII. Per Capita Tax Post is liable for the quarter in which it was organized. The Commander of the Department of the Potomac decided that a Post should pay the per capita tax due the Department for the quarter in which it was organized. To this the Post took exceptions, claiming that the charge did not commence until the first of the ensuing quarter. The decision of the Department Commander was sustained. DECISION VIII. Dropped member One twelve months in arrears is dropped by the Rules and Regulations. Quartermaster or Quartermaster-Sergeant may make the entry. When a Comrade is dropped, the Quartermaster must report it on quarterly return. From the same Department (Potomac) an appeal was presented on the right of the Post Quartermaster to drop from the rolls any Comrade twelve months in arrears, who had been duly notified, without the direct action of the Post thereon. I decided that when a Comrade became twelve months in arrears, he was "dropped" by the action of the law governing that subject, and that the simple clerical duty of marking the name "dropped" could be performed by the Quartermaster or Quartermaster-Sergeant. When a Comrade is marked "dropped," it becomes the duty of the Quartermaster to so report his name in the then quarterly return. DECISION IX. Countersign- Department Commander may communicate as a matter of courtesy When. On an application from the Department of Connecticut that the Commander-in-Chief detail a staff officer to re-obligate a OF THE GRAND ARMY OF THE REPUBLIC. 177 Comrade "dropped from the rolls" in that Department, and then residing in a distant city, who desired to be restored, I an swered that there was now no provision for the re-obligation of dropped members, but that the Department Commander where the Comrade resided, could, as a matter of courtesy, communi cate the countersign, on receiving such a request officially, to a Comrade thus restored. DECISION X. Post Quartermaster responsible for moneys collected by Quartermaster-Sergeant. On an appeal from Post 35, Department of Massachusetts, I decided that the Department Commander was correct in ruling that the Post Quartermaster was responsible for moneys collected by the Quartermaster-Sergeant. DECISION XI. Applicant must have the proper qualifications for membership. The Department of California presented the question of eligibility of one who served on the "Coast Survey," dur ing the war, as a part of the Atlantic Squadron. I decided that he must have the qualifications required by our Rules, and that his discharge papers would show the facts. DECISION XII. Funerals Authority to issue an order to attend a funeral must have first been conferred on Host Commander by Post By-Laws. Post Commander can not, on his own option, order Comrades to attend a funeral. Can a Post Commander order the Post to attend the funeral of other than a Comrade in good standing at his decease? 12 178 DECISIONS OF COMMANDERS-IN-CHIEF Decided : That the power to issue an order for attendance at a funeral, as given in Paragraph i of Burial Services, must have been first conferred on the Post Commander by Post By- Laws or resolution of the Post. The Post Commander can not, on his own option, direct Comrades to leave their business to attend funerals of those who did not, during life, have interest enough in the Order to become members. There may be cases where such attendance would be proper, but the Commander could learn the wishes of his Comrades by calling a special meeting of the Post. DECISION XIII. The opinion of the Judge Advocate-General touching the ordering of a Court Martial, (see his report herewith), was ap proved, and I declined to convene the Court asked for, consid ering the case too trivial for a general Court Martial. NOTE -See Opinion CXXIV, date March 23, 1880, and Opinion LXV, June 30, 1875. OF THE GRAND ARMY OF THE REPUBLIC. 179 Decisions XIV to XIX, Inclusive, Rendered by Com- mander-in- Chief George S. Merrill, Reported to and Approved by the Sixteenth National Encampment, at Baltimore, Md., Jnne, 1882. DECISION XIV. Past Provisional Department Commander not entitled to a seat in the Department Encampment. A Comrade claimed a seat in the Department Encamp ment of Maryland, by reason of being a Past Provisional Department Commander. An adverse decision of the De partment Commander was overruled by the Encampment, and the Comrade given a seat. From this the Department Commander appealed. The appeal was sustained ; there is no recognition by the Rules and Regulations, of " Past " provisional officers, and right fully, they being created by appointment. DECISION XV. Department Commander Office of can not be declared vacant by reason ef absence from the Department. Department Commander is entitled to the honors of the office, though absent from the Depart ment. Upon a question submitted by the Department of Vir ginia, whether the Department Encampment or Senior Vice-Commander, has the right to declare vacant the office of Department Commander in consequence of the absence 180 DECISIONS OF COMMANDERS-IN-CHIEF from the United States, during the greater part of the year, of the Comrade elected to that position, and whether such Department Commander is entitled to the honors of the position. The first question was answered negatively : the second in the affirmative. DECISION XVI. Transfer card Holder of, who, on application to be admitted to a Post, is rejected, is not re quired to obtain the consent of the Post that rejected him in order to join another Post. Case of appeal from the Department of Massachusetts. C. E. G., a Comrade in good standing, takes a transfer card from Post 63 ; he subsequently presents this, and asks admission to Post 23, but his application is rejected. His transfer card, without any indorsement thereon, is returned to him, and after the expiration of the year for which the transfer is granted, he applies for membership in Post 35. The Judge Advocate renders an opinion that the rejection of G. upon application upon transfer card, necessitates the consent of Post 23 to his application for membership in any other Post, and that the provision giving an honorable discharge to Comrades who, taking a transfer card, and not joining any other Post within one year, does not apply to any one who applies to and is rejected by a Post on said transfer. This opinion was affirmed by the Department Commander, and from this decision Post 35 appealed. The decision of the Department Commander was overruled and the appeal sustained. G. , not being admitted to any Post within a year from the date of his transfer card, was " honorably discharged from the Order" within the meaning of Section 2, Article IV, Chapter II, Rules and Regulations. Being so "con sidered." he is entitled to re-admission under the conditions set OF THE GRAND ARMY OF THE REPUBLIC. 181 forth in Section 3, Article IV, Chapter II, and is subject to no others. His rejection by Post 23 involves not the question of admission to membership in the Grand Army, but the materially different question of admitting a member of the Order to mem bership in a particular Post. The case, therefore, does not fall under Section 5, Article II, Chapter II, Rules and Regulations, nor under Opinion LXXII, of 1876. There seems to be nothing in the language of Section 2, Article IV, Chapter II, Rules and Regulations, or in the context, implying any discrimination be tween Comrades who apply and are not admitted on transfer cards, and those who do not so apply at all. The absence of any provision in the Rules and Regulations for reporting rejec tions on transfer cards, is a fact which, though not conclusive, is confirmative of the view here taken. DECISION XVII. Dropped member Not eligible to membership in another Post. Election and muster of dropped members into a Post other than the Post that dropped them , illegal and void. Reinstatement subsequent to muster in another Post does not render valid the admission. J. G. H applied and was admitted as a new member in Post 3, of New Hampshire. It was subsequently discov ered that at the time of such admission he was a " drop ped " member of Post 42, of Massachusetts; the Com mander of Post 3 ordered his name dropped from the rolls on the ground of illegal admission. He refused to go; later he applied to Post 42, of Massachusetts, paid his ar rearage, was reinstated, and obtained an honorable dis charge ; he then claimed a continuance of his former mem bership in Post 3, of New Hampshire. The Department Commander sustaining his position, Post 3 appealed. The appeal was sustained. H. being a dropped member of Post 42, Department of Massachusetts, was not eligible for ad mission to Post 3, Department of New Hampshire, and his 182 DECISIONS OF COMMANDERS-IN-CHIEF admission to said Post 3, being obtained by misrepresentation or concealment of facts on his part, is null and void. His subse quent reinstatement and honorable discharge by Post 42, does not render valid his previous admission to Post 3. On the con trary, it shows more distinctly the illegality of that admission, and is a tacit acknowledgment by H. of his false position. DECISION XVIII. Dropped member Admission of into another Post illegal When. Post can not admit to membership any person declared by the Rules and Regulations to be in eligible. P. H. C., Department of Kansas, was dropped from membership in Post I , by order of Post Commander, upon evidence tbat at the time of his admission he was ineligible, being a dropped member of Post 7, and his admission to Post i null and void. C. appealed on the ground that the Post Commander had no power in the premises, being himself in same condition- as to membership with said C. The appeal was overruled by the Department Commander, from which decision C. appealed. The decision of the Department Commander was sustained, and the appeal dismissed. Former decisions are to the effect that no action of a Post can admit to membership a person de clared by the Rules and Regulations "ineligible." The allega tion against the Post Commander does not become an element in deciding this case. DECISION XIX. Court Martial Can not try one who is absent and serving a sentence of imprisonment. Absence by reason of confinement under civil jurisdiction can not be considered willful. The case of C. V., Department of New York, tried by Post Court Martial for petty larceny: V. had previously OF THE GRAND ARMY OF THE REPUBLIC. 183 been tried before a civil court for the offense, and sentenced to a term of imprisonment. It was during this confinement that the Court Martial was convened ; the latter held that the accused was " willfully absent," and the trial proceeded under a plea of not guilty, entered by the Judge Advocate. The accused was found guilty, and sentenced to dishonor able discharge. The proceedings and sentence were over ruled by Department Commander, the Judge Advocate giving an opinion that while V. was serving out a sentence as above, no Court Martial could arraign and bring him to trial. From this decision the Post appealed. The decision of the Department Commander was affirmed, and appeal dismissed. Absence by reason of confinement under civil jurisdiction can not be considered willful ; and neither civil or military law permits the trial of a person so absent. The case seems to be one for which the Rules and Regulations should pro vide, but they do not. COURTS MARTIAL. RULES AND FORMS. RULES FOR GOVERNMENT OF COURTS MARTIAL, REVISING ARTICLE VI, CHAPTER V, PAGE 27. RULES AND REGULATIONS. The following Rules, prepared pursuant to action of the Na tional Encampment, 1879, see Paragraph 13, page 640, Journal 1879,) are issued for the instruction and government of the Order. It being designed : 1. To give Posts more control over charges preferred against their members. 2nd. To avoid the necessity for a formal Court Martial in petty cases. 3rd. As a guide for conduct of Courts Martial. 2. From and after promulgation hereof, no Post Court Martial shall be convened, except when the same shall have been ordered by a majority vote of the Post of which the accused shall be a member, or of the Post under whose jurisdiction or control he shall be at the time, or by the Department Com mander. 3. If a Post deem charges, duly presented, too trivial for trial by Court Martial, yet requiring investigation, upon a motion duly made, and adopted by a majority vote of the Post, the Post Commander shall appoint a court of inquiry, of three or five Comrades in good standing, to whom the matter shall be referred, with authority to make such examination as may, by them, be deemed necessary, reporting in writing, at the earliest date, their findings and recommendations thereon for the action of the Post. 4. The findings and sentences of Post Courts Martial shall be approved by a majority vote of said Post, subject to an appeal 188 RULES FOR GOVERNMENT OF COURTS MARTIAL to the Department Commander. If the sentence of any Post Court Martial shall be dishonorable discharge or dismissal, if ap proved by a majority vote of the Post, the proceedings, findings and sentence, shall be forwarded by the Post Commander to the Department Commander (through the Assistant Adjutant-General of the Department) for his approval. Such a sentence can not be promulgated without his approval. 5. Post Courts Martial shall be composed of not less than five nor more than nine members and a Judge Advocate, all of whom shall be appointed by the Post Commander in a special order convening the Court. He shall name the Comrade who shall act as the President of the Court, and the other members of the Court shall rank before the Court according to their numbers or names in the said special order appointing the Court. 6. The following form of order shall be used by the Post Commander : HEADQUARTERS POST, No DEPARTMENT OF , G. A. R , 18 . . SPECIAL ORDERS No A Post Court Martial is hereby appointed to meet at on the day of A. D. 18 or as soon thereafter as practicable, for the trial of Comrade DETAIL FOR THE COURT. r. Comrade President. 2. Comrade 3- 4- 5- " 6. 7. 8. 9- tl Comrade to be Judge Advocate. By order of the Post, Post Commander. Adjutant. OF THE GRAND ARMY OF THE REPUBLIC. 189 7. The following shall be the form of the charge and speci fication : Charge and specification preferred against Comrade. of Post, No Department of , Grand Army of the Re public. CHARGE {Here insert the charge.) Specification In this, that the said Comrade. {Here specify what he did.~}.. {Here insert other specifications, or other charges and specifica tions, to cover the case. ) All this at on or about the day of 1 8 .... By order of . . Post No . . Post Commander. Attest , Adjutant. 8. The Judge Advocate shall give the accused at least ten days notice of the time and place at which the Court will sit for his trial, inclosing a copy of the charge and specification, and a list of the members of the Court. The notice shall be in the fol lowing form : 18.. COMRADE You are hereby notified that a Post Court Martial, by order of Post No , Department of Grand Army of the Republic {or of the Department Commander}, will convene for your trial upon the charge and specification preferred against you at on. . 18. ., at . . o clock . .M. 190 RULES FOR GOVERNMENT OF COURTS MARTIAL I send you herewith a copy of the charge and specification, and a list of the members of the Court. You will please attend. Yours in F., C., and L. , Judge Advocate of the Court. 9. The Court shall meet at the time and place appointed, and proceed as follows : The Judge Advocate shall call the roll of members of the Court, and if five are present the Court will be announced as open, and the accused admitted with his counsel. Should the accused not appear, the trial shall proceed in the same manner as if he were present. Should the Court be cleared for deliberation at any time, no person can be present except the Court and the Judge Advocate. 10. The Judge Advocate shall then rise and read aloud to the accused, if present, the order appointing the Court, and then ask the accused if he has any objection to any member of the Court named in the order, and record all objections in the proceedings. If no objections are presented, the trial will go on ; but if objec tion is stated, the same shall be considered, after which the Court will be cleared, the challenged member of the Court retir ing. After deliberation the doors will be re-opened, and the Judge Advocate shall announce the decision of the Court. If the objection made by the accused is sustained by the Court, the challenged member can not act in the case. 11. The President and other members of the Court present shall then rise, and the Judge Advocate shall administer to them, together, the following OBLIGATION OF THE COURT. "You, and each of you, do solemnly and sincerely declare and affirm, on honor as Comrades of the Grand Army of the Re public, that you will well and truly try and determine, according to evidence, the matter now before you, that is to say, the charges and specifications preferred against Comrade , of Post No. . . , Grand Army of the Republic, OF THE GRAND ARMY OF THE REPUBLIC. 191 and that you will duly administer justice according to the Rules and Regulations of the Grand Army of the Republic, without partiality, favor or affection ; and if any doubt shall arise, not explained by said Rules and Regulations, according to your con science, the best of your understanding, and the custom in like cases; and you, and each of you, do further declare and affirm that you will not divulge the sentence of the Court until it shall be published by the proper authority ; neither will you disclose or discover the vote or opinion of any particular member of the Court Martial, unless required to give evidence thereof in due course of law. So you, and each of you, do affirm." 12. The Judge Advocate shall then rise and take the following obligation, which shall be administered to him by the President of the Court : " You, Comrade , Judge Advocate of the Court, do solemnly and sincerely declare and affirm, on your honor as a Comrade of the Grand Army of the Republic, that you will not disclose or discover the vote or opinion of any par ticular member of the Court Martial, unless required to give evi dence thereof as a witness by a court of justice, in due course of law, nor divulge the sentence of the Court to any but the proper authority until it shall be duly disclosed by the same. So you do affirm." 13. The Judge Advocate shall then arraign the accused, read ing aloud to him the charge and specification, and at the close shall say : " How say you, Comrade , Guilty or Not Guilty?" Whereupon the plea of the accused shall be taken and re corded to each specification, as well as to the charge. 14. The Judge Advocate shall then call the first witness for the prosecution, and administer to him, and every witness, the following OBLIGATION OF WITNESSES. " You, Comrade do solemnly and sincerely declare and affirm, on your honor as a Comrade of the Grand Army of the Republic, that the evidence you shall give in 192 RULES FOR GOVERNMENT OF COURTS MARTIAL the cause now in hearing, in the trial of Comrade , shall be the truth, the whole truth, and nothing but the truth, and this you do affirm." The Judge Advocate shall then ask the witness : "Do you consider this affirmation and obligation binding on your conscience ?" 15. The evidence of the witness shall then be taken and writ ten by the Judge Advocate, in narrative form, as far as practica ble. All questions shall be reduced to writing and handed to the Judge Advocate, who shall read them to the witness, if they are proper questions and relevant to the case. Should any dispute arise as to the competency of evidence, or of any question pro pounded, the Court shall be cleared for deliberation, and, on re-opening, the decision shall be announced by the Judge Ad vocate. When all the witnesses for the prosecution have been exam ined, the accused shall enter upon his defense. If no counsel shall appear on behalf of the accused, the Judge Advocate shall assist the accused, so far as he can, in presenting his defense and in shaping questions to his witnesses, but it shall also be the duty of the Judge Advocate to cross-examine the witnesses for the defense. After the testimony on both sides has been closed, the Judge Advocate may address the Court, if he thinks proper, in support of the prosecution, and the accused, or his counsel, may address the Court for the defense, the Judge Advocate hav ing the privilege of making the closing argument in the case. After which the Court shall be cleared for deliberation. 1 6. The findings of the Court shall be by written vote upon each specification and charge. The votes shall be collected by the Judge Advocate, and he shall announce the result to the Court, when counted, which shall be done in their presence. The con viction or acquittal of the accused shall be determined by a ma jority of the votes of the members of the Court. The order in which the Court shall vote shall be as follows : The Court being ready to vote, the President so informs the Judge Advocate, who then reads, in consecutive order, the specifications to the first charge, and then the first charge, and so on with the other OF THE GRAND ARMY OF THE REPUBLIC. charges and specifications ; and the votes shall be taken, in suc cession, upon each specification and charge as it is read by the fudge Advocate. An equal division of the votes on any specification or charge shall result in a finding of not guilty as to that specification or charge. Votes having been taken, and the findings recorded upon each specification and charge, the finding thus declared is the decis ion of the Court, and the sentence should then be pronounced in strict accordance with the charges and specifications of which the accused has been found guilty, and should be without regard to individual sympathies or opinions. This is required by the obligation assumed by each member of the Court. The voting on the grade of sentence to be imposed shall be conducted as follows : Taking that of the highest grade first, if a majority of the Court present shall vote for the highest grade of punishment, it shall be recorded as the sentence of the Court. All members of the Court present must vote for some proper sentence of the Court, and if that which any member votes for is not adopted by a majority vote of those present, some punish ment must be voted till a majority agree as to one punishment. 17. Every Court Martial shall keep a complete and accurate record of its proceedings, to be authenticated by the signatures of the President and Judge Advocate of the Court, who shall also certify, in like manner, the sentence pronounced by the Court. The following form will serve to enable Courts Martial to pre sent a proper RECORD OF THE PROCEEDINGS. Proceedings of a Post Court Martial, convened at in the county of , Department of . . by virtue of the following special order : {Here insert the order appointing the Court. ) 194 RULES FOR GOVERNMENT OF COURTS MARTIAL HEADQUARTERS , 18.... o clock, .... M. The Court met pursuant to the above order. Present : Comrade , President. " Comrade.. a a a a and Comrade , Judge Advocate. The accused, Comrade , of Post No Department of , Grand Army of the Repub lic, was also present {and his counsel, if present.} The Judge Advocate having read the order convening the Court, asked the accused, Comrade , if he had any objection to any member named therein, to which he replied that he had no objection to any member named in the order convening the Court. [7>z the event of objection, state the name of the member objected to as follows ; "The accused objected to Comrade , and stated his cause of challenge as follows : {Here insert the statement of the accused.} Comrade (the chal lenged member of the Court) stated that ," etc.] The Court was cleared, the challenged member retiring, and after due deliberation the doors were opened, the accused and challenged member present, and the decision of the Court was announced by the Judge Advocate: "That the challenge is sustained as sufficient," or "That the challenge is not sustained, being insufficient." The members of the Court then rose, and they, and each of them, in the presence of the accused, were duly affirmed and obligated by the Judge Advocate, and the Judge Advocate was thereupon duly affirmed and obligated by the President of the Court, in the presence of the accused. The accused, Comrade of Post No , Department of . , Grand Army of the Re public, was arraigned on the following charges and specifica- OF THE GRAND ARMY OF THE REPUBLIC. 195 tions, which were read aloud by the Judge Advocate. (Here insert them. ) To which the accused pleaded as follows : To the first specification of ist charge, " second " " first charge , " first specification of 2d charge, " second " second charge , Comrade . . . . , of Post No Grand Army of the Republic, a witness on the part of the prosecution, was duly affirmed and obligated. Question by Judge Advocate (Here insert question.} Answer (Here insert answer. ) (When the Judge Advocate has finished his examination, the accused, or his counsel, may put questions, through the Judge Advocate, which shall be recorded thus: Question for defense Answer .* (When the cross-examination is completed, the Court may put questions, through the Judge Advocate, which shall be recorded thus: Question by the Court Answer (And so on with each witness for the prosecution. ) The prosecution here closed. Comrade , of Post No , Department of , Grand Army of the Republic, a witness on the part of the defense, was duly affirmed and obligated.. Question for defense Answer . . Question by Judge Advocate Answer . , , RULES FOR GOVERNMENT OF COURTS MARTIAL Question by the Court Answer (Should the Court adjourn pending the proceedings. ) The Court then adjourned to meet again at o clock .... M., on , 1 8 ( On re-assembling the record proceeds. ) , . . o clock .... M. , .... The Court met, pursuant to adjournment. Present, Com rade , President, Comrades (here insert names of all members of Court present), and Com rade , Judge Advocate. The accused, , was also present, (with his counsel, ) The proceedings of the last session of the Court of , 1 8 . . , were presented to the Court by the Judge Advocate. (Here record additional proceedings. ) The accused (or "the counsel for the accused") addressed the Court (or "read a statement") for the defense. (If in writing, it should be appended to the proceedings and marked.) (Here add the statement of the Judge Advocate, or The Judge Advocate submitted the case to the Cotirt. ) The Court was then cleared for deliberation, and having ma turely considered the evidence adduced, find the accused, Com rade , of Post, No , Department of , Grand Army of the Republic, as follows : Of the first specification of first charge, Guilty (or Not Guilty, as the case may be.) Of the second specification of first charge, Guilty (or Not Guilty, as before.) Of the first charge, , Guilty (or Not Guilty, as the case may be.) (And so on with each specification and charge. ) OF THE GRAND ARMY OF THE REPUBLIC. 19 SENTENCE. And the Court do therefore sentence him, Comrade of Post, No , Department of , Grand Army of the Republic, that he be (Here insert the sentence of the Court. (If a suspension, record it thus:) "suspended from membership in the Grand Army of the Republic, and from all rights and privi leges of the Order, for the period of " (Insert the /ime.} (If a dishonorable discharge, record it thus:) :t dishonorably disharged and dismissed from the Grand Army of the Republic." (Signed) President of the Court. Judge Advocate. ( When the proceedings are forwarded to the Department Com mander, indorse as follows :} Proceedings, Findings, and Sentence of the Court Martial in the trial of Comrade , of Post No , De partment of , Grand Army of the Republic. Approved. Respectfully forwarded to , Commander Department of , Grand Army of the Republic. (Signed) Post Commander, Post, No. .., G. A. R. To , Assistant Adjutant General. I N DEX SYLLABUS OF OPINIONS, ADJOURNMENT Motion to adjourn out of order 85 122 Same 103 135 ADJUTANT GENERAL, ASSISTANT To grant transfer card, when 19 33 Duty of, to notify Departments or Posts of failure to re ceive reports 49 64 ADMISSION FEE Not required with application 2 9 Property of the Post 2 9 When forfeited, may be refunded 2 9 Post may fix amount of Must be uniform 86 123 APPEALS From Department Commander or Department Encamp ment should go to Commander-in-Chief first, then after 5 14 his ruling may go to National Encampment 12 25 From reviewing officer of sentence of Courts Martial will not lie 56 75 Same 64 94 Same 73 108 Same 105 136 Same 145 17 200 INDEX AND SYLLABUS APPLICANTS FOR MEMBERSHIP OPINION. PAGE. No information, as to cause or means of rejection, shall be divulged 30 42 Section i, Article XIII, Chapter V, Rules and Regulations 30 42 Penalty for violation. Section 2, Article XIII, Chapter V 30 42 Properly qualified applicants may be admitted without re gard to their residence 36 50 Report of investigating committee on applicants must be in writing and on the application 37 51 Where applicant has been reported on verbally by commit tee, and the applicant has been voted for and rejected, the ballot may be renewed 37 51 Admission to membership. Article II, Chapter II, Rules and Regulations 1 1 23 Where applicant has not been seen by the committee, and report is made, and ballot had, the ballot may be set aside by the Department Commander 57 78 An applicant not mustered can have no claim or appeal 57 78 An applicant rejected by one Post, and who applies to an other Post and is mustered before the expiration of the time fixed by law, is illegally elected and mustered, and should be dropped from the rolls 72 104 Recruit under the Grade system must proceed as an orig inal applicant 74 109 When applicant is reported on by investigating committee, the ballot must be had, whatever the report may be .... 89 126 Same 138 163 Applicant should be admitted under his true name 122 150 Applicant holding transfer card, must make a regular ap plication for membership 137 162 Applicant can not be balloted for the second time until the Commander has announced the result of the first ballot. Decision II, Commander-in-Chief 173 Applicant must be governed by the requirements of the Regulations. Decision III, Commander-in-Chief 174 Must have the proper qualifications. Decision XI, Com mander-in-Chief 177 APPLICATION FOR MEMBERSHIP Can not be withdrawn after the investigating committee reports thereon 138 163 ASSESSMENT OR TAX None can be assessed on members of " first and second grades" 5 14 Compulsory; limited to the levy of an annual tax or dues 63 91 OF OPINIONS. 201 ASSESSMENT OR TAX CONTINUED. OPINION. PAGE For transfer card illegal and void 3 1 1 Same 63 91 By-Law fixing an assessment for burial expenses, void.. . . 91 127 ASSISTANT MUSTERING OFFICER Not recognized by Rules and Regulations 78 1 16 BADGE Insignia of rank 16 29 Is personal property, but should be worn only by actual active members of the Grand Army of the Republic 139 165 BALLOT A personal matter. Should not be used in malice 15 28 May be renewed when verbal report has been made by the investigating committee, and applicant has been re jected 37 5 1 Should be set aside by Department Commander when committee reports without having seen the applicant- . . 57 78 Can not ballot for several candidates collectively 100 133 Must be taken after investigating committee reports 138 163 For reinstatement, should be by ball ballot 142 168 Post Commander can not order second ballot until he an nounces result of the first. Decision II, Commander- in-Chief 1 73 BY-LAWS Post may provide By-Law fixing penalty against officer for neglect of duty ; recovered by Courts Martial 23 36 Requiring all members present to vote on all questions, unless excused, is valid 58 79 Fixing fee for transfer card, void 63 91 Shall be signed by all the members of the Post within a reasonable time 7 9 8 Change, or amendment, made only in the mode provided by the By-Laws themselves 144 l6 9 Authority to issue an order to attend a funeral must be conferred by By-Law of the Post. Decision XII, Com- mander-in-Chief 1 77 202 INDEX AND SYLLABUS C CANDIDATES OPINION. PAGE. Opportunity for stating objections to, must be given 15 28 Must be balloted for separately 100 133 Must be balloted for, as soon as the investigating com mittee have made their report 89 126 Same 138 1 63 CHARGES Must be tried by Court Martial i 7 Same 23 36 See " COURT MARTIAL," and Decisions cited, Continuous neglect of duty on the part of an officer suf ficient cause for charges 23 37 Accused entitled to copy of 52 67 CHARTER National Encampment, or Commander-in-Chief, with con sent of National Council of Administration, may revoke Department Charter, when 8 17 Department Commander, with consent of Council of Ad ministration, may revoke Charter of a Post 8 17 New Charter should have been granted when districts were abolished 40 55 Should contain only names borne on the old Charter 40 55 Charter may be forfeited by neglect to hold monthly meet ings 44 5 8 CHARTER-MEMBERS The holder of a transfer card may be a Charter-member of a new Post 78 115 Members of a Post can not become Charter-members of a new Post without having transfer cards or honorable discharges 79 l 1 6 Same 92 127 Department Commander may approve the application of a member of a disbanded Post and re-admit him as a mem ber of another Post, or as a Charter-member of a new Post 42 56 Same 108 138 Same 115 143 Same 116 145 Charter can not be issued to form a new Post to members of an existing Post who are in arrears for dues 1 16 146 Same 35 4# OF OPINIONS. 203 CHARTER-MEMBERSCONTINUED. OPINION. PAGE. The Commander of a Post can not call in question the standing of a Charter-member, nor ignore his claim as a Charter-member of the Post 1 16 145 COMMANDER-IN-CHIEF May authorize translation of the Ritual 7 16 May authorize the use of Ritual in a foreign language .... 7 16 Has no authority to withdraw Department Charter 8 17 May place Department Commander under arrest 8 17 Powers of, as to Department officers 8 17 May appoint Acting Department Commander 8 17 Should order Department Commander to perform neglected duty 9 21 May take charge of Department, and call meeting of De partment Encampment, when 9 22 Has no power to change a Permanent Department to a Provisional Department 10 22 Has no power to fill vacancy in National Council of Ad ministration 25 37 Organize a Permanent Department from Provisional De partment 27 39 May ratify the acts of Provisional Commander 27 39 Has no authority to prescribe a plan for the observance of Memorial Day 48 6 1 May, in the exercise of sound discretion, refuse to order a Court to try certain charges and specifications 65 94 Same 124 152 See, also, Decision XIII, Commander-in-Chief 1 78 May suspend an officer from the discharge of his official duties, after charges are preferred 66 97 Shall convene Court for the trial of a member of the Na tional Encampment no 1 40 Also, if charges be preferred by Department Commander no 140 May detail Staff Officer to re-obligate a Comrade 118 148 COMMANDER, DEPARTMENT See DEPARTMENT COMMANDER. COMMANDER, PROVISIONAL Can not appoint Department Inspector 14 Staff of 4 Must reside within the Department 23 When he assumes to act and to organize the Permanent Department without the order of the Commander-in- Chief, his acts are illegal and void 27 39 204 INDEX AND SYLLABUS COMMANDER, PROVISIONAL CONTINUED. OPINION. PAGE. Commander-in-Chief may ratify the act of the Provisional Commander 27 39 Not entitled to a seat in the National Encampment by vir tue of having been a Provisional Department Com mander 1 29 156 Same. Decision XIV, Commander-in-Chief 179 COMMANDER, POST See POST COMMANDER. COMMITTEE, INVESTIGATING Report of, must be presented in writing, and on the appli cation 37 51 Verbal report of can not be acted upon, and if so acted on, action is illegal 37 51 Where verbal report has been acted upon, and the appli cant has been rejected, the ballot may be renewed be fore the time specified by Rules and Regulations. ... 37 51 CORRESPONDENCE Military usage, when required 119 148 COUNCIL OF ADMINISTRATION Can not withdraw the Charter of a Department. (Changed by an amendment. See Note to Opinion.) 8 17 Has no power to legalize an illegal act of a Post Com mander ii 23 Members of the National Council of Administration may sit in National Encampment, whether their Department is in arrears or not 12 25 Are members of National Encampment 12 25 Vacancies in, occuring during the year, filled by the Coun cil of Administration 25 38 Member holding transfer card may act 135 160 COUNTERSIGN Post Commander may, when the occasion demands it, communicate the countersign either at a meeting of the Post, or outside of the Post 134 160 Same 141 167 Department Commander may communicate countersign. Decision IX, Commander-in-Chief 176 OF OPINIONS. 205 COURT MARTIAL OPINION. PAGE. Rules for jgc United States Army Regulations to govern I Same 36 50 Same 52 67 Post can not order publication of sentence 30 42 The Judge Advocate should be detailed with reference to his qualifications 36 co The accused is entitled to a copy of the charges if he make request therefor at the proper time 52 67 Request for trial by a Department Court must be made before the time fixed for the meeting of the Court 52 67 Where the evidence is not furnished the record is incom plete, and a new trial may be ordered 52 67 When a new trial is ordered, Department Commander may order the case tried by Department Court 52 67 There can be no appeal from the decision of the review ing officer, when 56 75 Same 64 94 Same 73 108 Same 105 136 Same 145 170 Reviewing officer may mitigate the sentence, but not after he has once passed on it 64 94 Findings and sentence of Post Court Martial must be ap proved by a majority vote of the Post, subject to an ap peal. (Note.) 64 94 For dishonorable dismissal must be approved by the De partment Commander. (Note.) 64 94 The Commander-in-Chief may refuse to order a Court to try certain charges and specifications 65 94 "Conduct unbecoming an officer and a gentleman," mean ing of 65 94 Accused can not be suspended from his rights as a mem ber of his Post, pending trial 66 97 Accused may or may not be present during trial. If he willfully absent himself, trial shall proceed 66 97 The senior officer shall preside 68 99 Changed. See Rule V, Court Martial. (Note.) 36 50 Department Commander may (shall) designate who shall preside 68 99 If sentence is inadequate, the reviewing officer may re turn for revision 73 108 Junior Vice Commander of Department may be appointed on the Court 107 137, 206 INDEX AND SYLLABUS COURT MARTIAL CONTINUED. OPINION. PAGE. Commander-in -Chief convenes the Court for the trial of a member of the National Encampment no 140 Same, if Department Commander is the accuser 1 10 140 The person who signs the charges is the accuser no 140 Official rank not a ground for challenge 123 151 Immaterial who prefers the charges ; may be a suspended member 123 151 Specifications form of, and what they should contain ... 123 151 (See Rules for Court Martial.) 187 Commander-in-Chief may exercise his discretion and refuse o convene a Court 124 152 If a Post deem charges too trivial for trial by Court Mar tial, may appoint COURT OF INQUIRY. (Note.) 124 152 No jurisdiction in matters that have no connection with the Grand Army of the Republic 1 25 153 Defendant must be in such position that he may be able to attend the trial, if he so desires, before a Court can have jurisdiction 143 168 Sentence, how promulgated. See Rule IV, Court Martial 185 Can not try one who is absent serving a sentence of im prisonment. Decision XIX 182 Absence of accused by reason of confinement under civil jurisdiction can not be considered willful. Decision XIX 182 ID DEPARTMENT Department officers failing or refusing to perform their duties may be placed in arrest by Commander-in- Chief 8 17 An Acting Department Commander may be appointed by the Commander-in-Chief 8 17 Where Department officers are removed the Council of Administration shall convene for the election of offi cers 8 17 When department has failed for three-quarters of a year to forward reports, the Commander-in-Chief may, with the consent of the Council of Administration, revoke the Charter. (See Note.) 8 18 Department Officers hold their offices until their successors are installed 9 21 Commander-in-Chief shall order Department Commander to perform any neglected duty, and on his failure to obey may take jurisdiction of the Department 9 22 OF OPINIONS. 207 DEPARTMENT CONTINUED. OPINION. PAGE. Permanent Department can not be changed to a Provis ional Department 10 22 Department Officer does not forfeit his office by reason of any misconduct of his Post 13 27 Department having made out and mailed a report, has a a right to suppose that it has been received, in the ab sence of any notification to the contrary 49 64 Department may send report at the last moment before the Encampment meeting, or it may be sent by the hands of the delegates 49 64 Officers must be installed before they can act as such 90 126 Department Officer may also be an officer of his own Post 107 137 Same * 127 155 DEPARTMENT COMMANDER May detail Staff Officer to receive one into the Order. ... 2 9 May, by consent of Council of Administration, annul Charter of Post 8 17 May be placed in arrest for neglect or refusal to perform his duty 8 17 Appeals from 12 26 Does not forfeit his office by reason of any misconduct of his Post 13 27 May, in his discretion, re-admit dropped members 42 56 Same 108 138 Same 115 143 Same 116 145 Can not prescribe plan for observation of Memorial Day. . 48 61 May suspend officer from the performance of his official duties 66 97 May (shall) designate the President of Department Court Martial 68 98 As reviewing officer, may return proceedings of Court Martial for revision 73 108 May, on information that an election of Post Commander is illegal, postpone installation until investigation is had. .76 ill May annul, or cause to be annulled, illegal proceedings of a Post 95 129 Can overrule the decisions of a Post Commander without an appeal having been taken 95 1 29 Department Commander alone responsible for the organ ization of a new Post, and he may grant or reject the application regardless of any existing Post 130 156 208 INDEX AND SYLLABUS DEPARTMENT COMMANDER CONTINUED. OPINION. PAGE. Department Commander has no power to annul a ballot, or to inquire into the motive of those who vote to reject an application . 61 84 Department Commander may communicate countersign. Decision IX, Commander-in-Chief 175 Office of, can not be declared vacant by reason of his ab sence from the Department. Decision XV 179 Is entitled to the honors of his office. Decision XV 179 DEPARTMENT ENCAMPMENT Rules and Regulations governing 18 31 The term of office of delegates to Department Encamp ment is from January I to January I 18 32 Credentials should be forwarded to the Assistant Adjutant General 18 32 When reports are sent to the Assistant Adjutant General, even though not received, delegates are entitled to their seats 49 64 No member or delegate elected subsequent to the last stated meeting in the year eligible to a seat 51 66 Vacancies may be filled 51 66 Members must be in good standing in their Posts 70 101 All members in good standing eligible 81 119 No change in the membership subsequent to the time of the election can affect the number of representatives.. 82 119 The return of Post membership next preceding the election shall govern as to the number of delegates 82 120 Rules and Regulations on 1 8 31 Where a Post is entitled to only two delegates, and sends more, extra delegate may be excluded 83 121 Posts organized after third quarter entitled to representa tives 96 131 No proxy or substitute can act for a Post Commander at Department Encampment 109 1 39 Only those members, or alternates, duly elected, who are present have a right to vote at a meeting of the Depart ment Encampment 109 139 Can be no proxies for representatives 113 142 Same 127 155 Past Provisional Department Commander is not entitled to a seat in Department Encampment 129 156 A member of Department Council of Administration who holds a valid transfer card, may hold his seat in De partment Encampment 135 160 OF OPINIONS. 209 DISCHARGE OPINION. PAGE, Discharge application must be made at regular meeting. Rules and Regulations } 12 Dishonorably discharged members may be re-admitted on reformation, his application being first approved by the officer who approved the sentence of the Court Martial. 24 37 (See Opinion I, Commander-in-Chief.) 173 When application is made for discharge the Post must grant the discharge if the applicant is in good standing. 45 59 Discharge may be delayed long enough to prefer charges, but if charges are not preferred, it is compulsory upon the Post to grant the discharge (.5 1^9 When a person applies for a withdrawal card, and a dis charge is given and accepted, the applicant can not afterward claim that it was a mistake on his part, and demand a transfer card 61 84 The only method of leaving the Post honorably is by dis charge or transfer card 62 87 Dropped members can not be considered as dishonorably discharged 75 1 10 Dishonorably discharged members are such as have been convicted and sentenced by Court Martial 75 1 10 Where transfer is asked, and discharge is granted instead, discharge is void, and membership is not changed 84 122 Discharge granted at the same meeting at which applica tion therefor is made, is void 84 122 It is a Comrade s right to apply for a discharge, and if he be in good standing Post must grant it 88 125 Application for a discharge may be withdrawn 88 125 A Comrade, honorably discharged, re-admitted, how.... 115 143 DISMISSAL Must be by sentence of Court Martial i 7 Same 143 168 DROPPED MEMBERS One who has been dropped is no longer a member, and the Post has no power to remit his dues 26 38 Dues of dropped members can not be remitted 26 38 Post funds can not be used to reinstate dropped member. 26 38 Dues must be paid before he can be re-admitted 26 38 Dropped member can not join a new Post as an initiate, and is ineligible for membership in existing Post 315 48 Same. Decision XVII, Commander-in-Chief 181 Same. Decision XVIII, Commander-in-Chief 182 14 210 INDEX AND SYLLABUS DROPPED MEMBERS CONTINUED. OPINION. PAGE. A Comrade who has been dropped for non-payment of dues can only be reinstated by the Post which dropped him 35 48 Can only be re-admitted to membership by vote of the Post which formerly bore his name on the roll 35 48 If the Post to which he belonged disbands, he may be ad mitted to another Post by Department Commander 42 56 Same 108 138 Same " 115 143 Same 116 145 Dropped members can not be regarded as dishonorably discharged 75 no May be organized into a new Post by Department Com mander, when 1 1 6 145 Living in another Department may be reinstated 1 18 148 One twelve months in arrears must be dropped. Decision VIII, Commander-in-Chief 176 When a Comrade is dropped the Quartermaster must re port it on next quarterly report. Decision VIII, Com mander-in-Chief 1 76 Not eligible to membership in another Post. Decision XVII 181 Election and muster of dropped members illegal. De cision XVII . 181 Same. Decision XVIII 182 Reinstatement subsequent to muster in another Post does not render valid the election and muster. Decision XVII 181 DUES Of dropped member can not be remitted 26 38 Applies only to annual tax 63 91 ELECTIONS Where the Post has a By-Law requiring all members to vote when present, and an election is held and some of the members do not vote, and the By-Law is not enforced after the Commander s attention is called to the fact, the election is void 58 79 In an election votes given for an ineligible person must be excluded in the count 59 80 Parliamentary law to govern 59 80 OF OPINIONS. 211 ELIGIBILITY TO MEMBERSHIP OPINION. PAGE* Rules and Regulation. Cited 4 13 Involuntary service in the Rebel army forms no exception to Section I, Art. IV, Chap. I, Rules and Regulations.. 4 12 Same 114 142 Same 136 161 Paymaster s clerk in the navy is 6 15 Scouts in the Union army, if they were civilians, are not eligible 17 31 Same 131 157 If a person, once dishonorably discharged from the ser vice, has the order revoked, and he is reinstated in the army, and is afterward granted an honorable discharge, is eligible 22 35 All persons who are eligible should not necessarily be admitted 22 35 A woman who served as u Daughter of the Regiment " is not eligible to membership 31 43 Same, as to woman who served the army in an im portant position 104 136 Dropped member not 35 48 Officers of revenue service not 47 60 Same 97 132 Enlistment, muster, and honorable discharge, necessary. .131 157 Persons twice rejected by same Post not. (Changed by Rules and Regulations.) 53 70 One who deserts his company and joins another, not.. -.54 72 Eligibility depends upon whether or not the applicant can present an honorable discharge 69 100 Same 126 154 Same 131 157 Same 132 158 Clerk to army Paymaster, not 50 66 Applicant who is rejected by one Post, and who, before the expiration of the time fixed by the Rules and Regu lations, applies to another Post, and is there elected and mustered, was ineligible, his election is void, and he should be dropped from the rolls 72 104 Service in revene marine is not sufficient 97 132 Same. Decision V, Commander-in-Chief 175 Contract-Surgeon, not 99 133 Enlistment without muster, not 131 icy Commission without muster, not 131 157 Quartermaster s clerk, not 131 157 One who is taken out of the service by writ of habeas cor- P, is 133 159 212 INDEX AND SYLLABUS ELIGIBILITY TO MEMBERSHIP CONTINUED. OPINION. PAGE. One who served with State regiment. Decision VI, Com- mander-in-Chief 1 75 Post can not admit any one declared by Rules and Regu lations to be ineligible. Decision XVIII 182 EXPULSION Can not be without trial I 7 FUNERAL Assessment for expenses of, void 91 127 Authorized to order an attendance at, must be confirmed by By-Laws of Post. Decision XII, Commander-in- Chief 177 FUNDS Post funds can not be used to reinstate dropped member.. 26 38 Of the Grand Army of the Republic can not be used for the support of ex-Rebel soldiers 140 166 C3- GRADES Abolished 5 14 Member under grade system admitted 115 143 HONORABLE DISCHARGE Difference between " transfer " and " discharge " 35 48 I INITIALS " G. A. R." may be used by a Comrade on his business sign 38 53 INSIGNIA OF RANK The uniform worn in the service may be worn ; if so worn the accustomed insignia of will be retained 1 6 29 Same. Settled by Rules and Regulations 1 6 30 OF OPINIONS. 213 INSPECTORS OPINION. PAGE. Duty of ...................................... ...... 8 17 Can not be appointed by Provisional Department Com manders ......................................... 14 28 INSPECTOR-GENERAL May nominate assistants ............................. 14 28 INSTALLATION Officers-elect can not act in official capacity without being installed ........................................ 90 126 Same ......................................... 102 134 Installation in December, void ....................... 98 132 Senior Past Post Commander may install .............. 102 134 Officer detailed to install has no authority until he reports for duty .......................................... 102 134 INVESTIGATING COMMITTEE Report of, on application for membership, must be in writ ing and on the application .......................... 37 51 Post can not act on the verbal report of investigating com mittee ; if action is taken, illegal .................... 37 51 Where verbal report has been acted on, and applicant is rejected, ballot may be renewed, when ............... 37 51 Where the committee reports without having seen the ap plicant, and the ballot has been taken, ballot should be declared void ..................................... 57 78 Committee should see the candidate in person .......... 57 78 JUDGE ADVOCATE Should be detailed with reference to his qualifications ... 36 qo Appointed by Post Commander. Rule V, Court Martial. 36 50 JUDGE ADVOCATE-GENERAL Opinions of, having been adopted by the National Encamp ment, irrevocable, except by the National Encampment 80 119 IM: MEMBERS If a man is not legally introduced into the Order, he is not a member .................................... 1 1 23 Same .......................................... 72 104 Same. Decision XVII .......................... 181 Same. Decision XVIII.. 182 214 INDEX AND SYLLABUS MEMBERS CONTINUED. OPINION. PAGE. Private members of a Post are not to be held responsible for the neglect of their officers - 13 27 Members suspended are debarred from the meetings of the Post 16 29 Members of disbanded Posts who were in good standing at disbandment may have transfer cards from Assistant Adjutant-General 19 33 Dishonorably discharged, re-admitted . 24 7 Member can not be reinstated after death 26 38 The dues of a dropped member can not be remitted 26 38 Dropped member can not be reinstated from Post funds. 26 38 Dropped member can not join a new Post as an initiate. . 35 48 Same. Decision XVII 181 Same. Decision XVIII 182 Dropped member can only be reinstated by Post which dropped him 35 48 As to re-admission of dropped member 115 143 Same 1 1 6 145 Membership from one Post to another can be only by transfer or honorable discharge 35 48 Member in arrears can leave his Post only by dishonor able discharge, or by being dropped 35 48 May use initials " G. A. R." on business sign 38 53 Member holding transfer card not liable for dues 39 54 Members dropped for non-payment of dues, if their Post disbands, may be again admitted to the Order, how.. 42 56 Member can only leave his Post honorably either by dis charge or transfer 62 87 A member of a Post can not absolve himself from his duties to that Post, non-attendance or non-payment of dues will not release him 62 87 Can not join a second Post until released from the first. 62 87 Member, against whom charges have been preferred, can not be suspended before decision of the case 66 97 A member once mustered, though unfit for membership, would remain, and can not be stricken from the roll except for some subsequent offense 72 104 Membership is not changed when transfer is asked for and discharge is granted instead 84 122 Re-admission of. If a member under the grade system it must be by application and muster 115 143 If on honorable discharge must be on application and taking anew the obligation 115 143 Standing of Charter-member can not be called in question by Post Commander 1 1 6 1 45 OF OPINIONS. 215 MEMBERS CONTINUED. OPINION. PAGE. Member of another Department can only be re-obligated by a Post Commander specially detailed 1 20 149 MEMBERSHIP- HOW changed from one Post to another 3^ 48 Terminated, how 72 108 MEMBERSHIP ELIGIBILITY See ELIGIBILITY TO MEMBERSHIP, MEMORIAL DAY Observance of, obligatory 48 61 Private circumstances may excuse a Comrade, but a Post that fails or refuses, should be subjected to discipline.. 48 61 Where a Post fails to observe the day, it is not obligatory on a member of the Post 48 61 The manner or form of observance, left to the Post 48 6l Neither Commander-in-Chief or Department Commander have authority to prescribe a plan for observance of . . . 48 6 1 MUSTER-IN FEE Not required by Rules and Regulations to accompany the application 2 9 Post by By-Law may require it to accompany the applica tion 2 9 When paid, becomes the property of the Post 2 9 May be remitted by the Post 2 9 Post must have a regular and uniform muster-in fee for all applicants 86 1 23 NEW CHARTERS On abolishment of districts 40 55 Should have been granted 46 .55 Should contain only the names borne on the old one. ... 40 55 NATIONAL ENCAMPMENT National Encampment alone has power to alter or amend the Regulations s 9 Same 72 104 May suspend any section for the time being 2 9 National Council of Administration are members of 12 25 Appeals to, how taken 12 25 216 INDEX AND SYLLABUS NATIONAL ENCAMPMENT CONTINUED. OPINION. PAGE. Representatives to, number from each Department 20 33 Where reports have been sent but not received, delegates admitted 49 64 Past Department Commanders members 70 101 Members of must be in good standing 70 101 A Past Department Commander, though a member of a Post in another Department than that of which he was Commander, is a member of National Encampment... 87 124 o OBLIGATION Can not be read to the recruit before he is mustered .... 43 57 OFFICES AND OFFICERS Officers hold their positions until their successors are in stalled 9 21 Members of National Council of Administration are Na tional Officers of the Grand Army of the Republic. ... 12 25 Department officer does not forfeit his office by reason of the misconduct of his Post 13 27 Officer does not forfeit his position by absence 23 36 May be punished by fine if provided for by By-Laws 23 36 Penalty against must be recovered through Court Martial. 23 36 Continued neglect of duties of the office would furnish ground for prosecution without any By-Laws 23 36 All members are eligible to office 81 119 Same. Rules and Regulations 81 119 Must be installed before acting as an officer 90 126 Same. Rules and Regulations 90 126 Same 102 134 Installation in December, void 98 132 Officer detailed to install has no authority until he reports for duty 102 134 Officers elected to fill a vacancy, and who served to the end of the term for which they were elected, are enti tled to the honors 106 137 When Commander and Vice-Commander are absent from the Post meeting, the Post elects pro tempore 121 149 When Vice-Commanders are absent, Commander details to fill vacancy 121 149 One who resides outside of the limits of his Department is eligible 1 28 155 OK OPINIONS. 217 OFKICES AND OFFICERS CONTINUED. See Contra., Provisional Commander 23 36 No officer can set aside the provisions of Article IV, Chapter V. Opinion III, Commander-in-Chief 1 74 OPENING CEREMONIES Head-coverings 1 6 29 PARLIAMENTARY LAW Governs in elections in the Grand Army of the Republic. . 59 80 PAST DEPARTMENT COMMANDER May sit as member of Department or National Encamp ment so long -as he is in good standing in his Post.. . 70 101 Though a member of Post in another Department, mem ber of National Encampment 87 124 Not a member of Department Encampment 87 124 When he accepts discharge, he loses his position as a Past Department Commander 94 128 A Past Post Commander joining a Post of another De partment, is not entitled to a seat in the Department Encampment of the last Department 1 1 1 141 Same 112 141 PAST POST COMMANDER Does not lose his standing as a Past Post Commander by joining another Post 93 1 28 One who serves for the period for which he was elected entitled to the honor 106 137 Past Post Commander who has been dropped is not en titled to the honors. Decision IV, Commander-in-Chief. . 174 PENALTIES Post may provide By-Law that absence of officers may be punished by fine > 23 36 Penalties must be fixed by Court Martial I 7 Same 23 36 PER CAPITA TAX Supplemental reports should be made, when 55 73 Must be assessed on all alike 60 82 Can not be remitted except as provided by Rules and Regulations 60 82 218 INDEX AND SYLLABUS PER CAPITA TAX CONTINUED. OPINION. PAGE Assessed by Department Encampment 144 169 Post is liable for the quarter in which it was organized. Decision VII, Commander-in-Chief 176 POST May remit the admission fee in case of one who has for warded the same and becomes unable to join the Post. . 2 9 Can not impose any restrictions upon the right of a Com rade to demand a transfer card, in the form of a fee or otherwise 3 n May fix the amount of the initiation to be paid by new members .... 5 14 May exclude suspended members from the meetings of the Post 1 6 29 When it disbands must turn over property 19 33 May provide by By-Law that officers absenting them selves from meetings shall be punished by fine 23 36 Can not reinstate a former Comrade who had been dropped for arrearages, and who died after his name had been dropped 26 38 Can not remit the dues of a dropped member 26 38 Can not use Post funds to reinstate a member 26 38 A vote of the Post instructing the Commander not to grant a transfer card, is. void 29 42 Can not order the publication of any sentence of a Court Martial 30 42 Shall not divulge the cause or means of the rejection of an applicant for membership 30 42 May, at the request of a Comrade, inquire into the char acter of that Comrade, and read the evidence to the Post . 32 44 Must follow the mode provided in the Regulations. Where the Regulations are silent, Post may provide by By- Law 33 46 Can not hold executive sessions 34 47 Has no executive powers 34 47 Can not exclude Department officers 34 47 May consult its own convenience in regard to admitting Comrades visiting from other Posts 34 47 Can not act on verbal report of investigating committee. .37 51 Can not open or close public entertainment according to the Ritual 4* 56 Can not surrender Charter contingent by or for a limited period 44 5^ OF OPINIONS. 219 POST CONTINUED. OPINMON. PAGB. May forfeit its Charter by failure or neglect to hold month ly meetings 44 c;8 Should make supplemental reports, when ^ Where investigating committee has not seen the candi date, but report, and a ballot is had, action is void 57 78 Post is not debarred from a true expression of their opin ion by the negligence of a committee 57 78 May adopt By-Law requiring all members present to vote on all questions unless excused 58 79 Can not receive one to membership who has been rejected by another before the expiration of the time fixed by the Regulutions 72 1 04 Acting within the Regulations, the muster of a recruit would conclude the Post on all questions left by the Regulations to the Post 72 , 104 Post, must be located 77 114 Must have a regular and uniform initiation fee, and can not establish different fees for different applicants 86 123 Transactions of Post void, when done under Commander pro temper e not a member of Post 86 123 Can not levy an assessment on members for burial pur poses 91 12 7 Can accept the resignation of the Commander 95 129 Organized after the third quarter of the year, is entitled to representation in the Department Encampment 96 131 Can not install officers in December 98 132 Failure to make Surgeon s report may exclude from De partment Encampment 98 132 Can not change its records except to correct an error. . . . 101 134 May adopt Rules of Order 101 134 Elect Commander pro tempore when Commander and Vice Commanders are absent 121 149 Consent of, not necessary for the organization of a new Post 130 156 Where the decision or action of the Post Commander is in violation of the Regulations, a vote of the Post to sustain him does not cure his error 138 163 Can not give consent to the withdrawal of an application after committee has reported thereon 138 163 POST COMMANDER May require application for a transfer paper to be made in writing 28 41 Rules and Regulations on 3 1 1 220 INDEX AND SYLLABUS POST COMMANDER CONTINUED. OPINION. PAGE. It is the duty of the Post Commander to transfer or dis charge a Comrade on his application 29 42 Where the Regulations are silent, and the Post has not provided by By-Law for making appointments, Post Commander shall detail or appoint 33 46 When a member of Department Council of Administra tion, and accused of an offense, tried by a Court con vened by Department Commander 46 59 When charges are preferred, should be suspended from official duties 46 59 Has no power to pardon a Comrade convicted by sentence of Court Martial 64 94 All action as to sentence of Court Martial taken out of the hands of Post Commander 64 94 Same. Rule IV, Court Martial 185 Has no power to suspend a member of his Post, against whom charges have been preferred, before the decision of the case 66 97 When charges are made to Department Commander that election of Post Commander is illegal, installation may be postponed 76 1 1 1 A Commander-elect is not disqualified from assuming the duties of his office by reason of any suspicions against his integrity as a Quartermaster 76 1 1 1 Can not turn over his command to a Comrade not a mem ber of the Post. If he does, proceedings are void 86 123 Can not order second ballot until he has announced the result of the first. Decision II, Commander-in-Chief . . 173 Should decide points of order in a Post meeting 95 130 Decisions of, may be overruled by Department Commander without an appeal having been taken 95 129 Power to appoint Junior Vice Department Commander on Court Martial 107 137 Can not call in question the standing of a Charter-member. 1 16 145 Must have special detail to re-obligate member of another Department 1 20 149 When absent from his Post, who acts 121 149 May detail officers in absence of Vice-Commanders 121 149 May communicate the countersign to a Comrade in good standing, either at a meeting of the Post or outside of the Post 1 34 1 60 Same 141 167 Can not, on his own option, order Comrades to attend a funeral. Decision XII, Commander-in-Chief 177 OF OPINIONS. 221 PROVISIONAL DEPARTMENTS Commander of must reside within the Department 23 36 Organized into Permanent Department on order of Com- mander-in-Chief 27 39 Rules and Regulations 27 40 Past Provisional Commander not entitled to seat in De- * partment Encampment. Decision XIV . . 179 Q QUARTERMASTER Quartermaster or Quartermaster-Sergeant may make the entry of " Dropped" members. Decision VIII, Com- mander-in-Chief 1 76 When a Comrade is dropped Quartermaster must report it on the quarterly return. Decision VIII, Command- er-in-Chief 176 Responsible for moneys collected by Quartermaster-Ser geant. Decision X, Commander-in-Chief 177 REBEL ARMY Service in excludes from membership in the Grand Army of the Republic 4 12 Same 114 142 Same 136 161 RECORDS Can not be altered except to correct errors 101 134 Presumed to be correct 117 147 REINSTATEMENT Can not use Post funds to reinstate dropped member 26 38 Dues must be paid before dropped member can be rein stated 26 38 Can not reinstate one who is dead 26 38 One who has been dropped for non-payment of dues, can only be reinstated by the Post that dropped him 35 48 If the Post to which a dropped member had belonged dis bands, may be reinstated and admitted to another Post by the Department Commander 42 ^6 Same 108 138 Same 115 143 Same 116 145 222 INDEX AND SYLLABUS REINSTATEMENT CONTINUED. OPINION. PAGE; Living in another Department may be reinstated, how. . . 1 1 8 148 Ballot for reinstatement must be by ball ballot 142 168 Dishonorably discharged, may be, how 24 37 Dishonorably discharged member re-admitted. Decision I, C4>mmander-in-Chief I 1 73 REPORTS Supplemental reports should be made, to show the true number of members in good standing for the quarter to which any report relates 21 34 Same 55 73 Of investigating committee must be made in writing, and on the application 37 51 Post can not act on the verbal report of investigating com mittee .* 37 51 Where verbal report has been acted on and applicant has been rejected, ballot may be renewed 37 51 If reports were forwarded, and they miscarried, sender should send copy 49 64 Where reports have been sent but not received, delegates may be admitted 49 64 Failure of Post to make any report required will exclude Post from Department Encampment 98 132 REPRESENTATIVES Number of in National and Department Encampments.. 20 33 Post organized after third quarter is entitled to represen tation 96 131 Post failing to make Surgeon s report when required, rep resentatives are excluded 98 132 REVIEWING OFFICER The opinion of is final, and no appeal can be had 56 75 Same 64 94 Same 73 108 Same 105 136 Same....- 145 170 RITUAL Must be kep"t secret 41 56 Can not be used to open or close any public entertainment 41 56 RULES AND REGULATIONS The National Encampment only can suspend any part thereof 2 9 Post must pursue the mode provided in the Regulations. . 33 46 OF OPINIONS. 223 RULES AND REGULATIONS CONTINUED. OPINION. PAGE. Where Regulations are-silent Post may provide by By-Law 33 46 Section i, Article VIII, Chapter II, defined 33 46 By-Law requiring all members to vote is not inconsistent with Regulations 58 79 The National Encampment alone has power to alter or amend 72 104 Article XV, Chapter V, Rules and Regulations 72 105 s SECRECY Can not use the Ritual to open and close a public enter tainment 41 56 T TRANSFER CARD Comrade may demand transfer card 3 n Post can impose no restriction upon the right of a Comrade in the form of fee or tax for card 3 II Written application for card is sufficient 3 II Rules and Regulations concerning 3 n Assistant Adjuant-General to grant traasfer cards to Com rades of disbanded Post 19 33 Rules and Regulations concerning 13 27 Commander unist grant transfer or withdrawal card to a Comrade in good standing when applied to 29 42 Transfer and honorable discharge, the distinction between 35 48 The holder of transfer card not liable for dues 39 54 By-Law fixing fee for transfer card is void 63 91 After presentation and muster into new Post, member of jiew Post. 67 98 Conclusive on Post which issues the card 67 98 Holder of transfer card may visit Posts 78 115 May become Charter-member of new Post 78 115 Same 79 1 1 6 Same 92 127 Transfer card valid for one year, and the holder, if a member of Department Council of Administration, may act as such 135 160 Must be presented with application for re-admission to Post membership 137 162 Holder of transfer card, rejected by one Post, does not have to obtain consent of that Post to join another. Decision XVI, Commander-in-Chief 180 224 INDEX AND SYLLABUS OF OPINIONS. TJ UNIFORMS 0.-1NION. PAGE- Rules and Regulations concerning 16 30 VOTING Where By-Law requires all present to vote on all questions unless excused 58 79 When such a By-Law is not enforced the vote is invalid. . 58 79 May, under Section I, Article III, Chapter II, and Sec tion 4, Article IV, Chapter V, be either by ballot, viva voce, or hand 78 115 For reinstatement must be by ball ballot. (Overruling Opinion LXXVIII, and approved by National Encamp ment, July, 1883) 1 42 1 68 WITHDRAWAL CARD See, also, DISCHARGE AND TRANSFER CARD. Where a Comrade applies for a withdrawal card, and re ceives and accepts it, he can not, after he has applied for re-admission, claim that it was a mistake on his part, and demand a transfer card 61 84 Department Commander has no authority to interfere .... 61 84 Rules and Regulations concerning discharge or withdrawal card. Cited v 3 12 WOMAN A woman who served as " Daughter of the Regiment " does not come within the class of persons eligible to membership in the Grand Army of the Republic 31 43 A woman who rendered important services as a bearer of dispatches, is not eligible to membership in the Grand Army of the Republic 104 136 RETURN CIRCULATION DEPARTMENT TO * 202 Main Library LOAN PERIOD 1 HOME USE 2 3 4 5 6 ALL BOOKS MAY BE RECALLED AFTER 7 DAYS Renewals and Recharges may be made 4 days prior to the due date. Books may be Renewed by calling 642-3405. DUE AS STAMPED BELOW MAR 02 198 * AUTO DISC MAR 6 198S UNIVERSITY OF CALIFORNIA, BERKELEY FORM NO. DD6 BERKELEY CA 94720 $ U.C. BERKELEY LIBRARIES 902976 THE UNIVERSITY OF CALIFORNIA LIBRARY