ON MOTION FOR REHEARING.
In our original opinion we quoted certain provisions as being contained in the National Defense Act, when in fact these provisions are really contained in the Army Regulations adopted in pursuance of such Act. We desire now to make certain changes in our opinion so as to show the correct source of these quotations.*
*426The Army Regulations relating to the National Guard contain the following provisions:
“The President has the authority to call all or a part of the National Guard, as part of the militia of the United States, into the service of the United States whenever the country is invaded or in danger of invasion from any foreign nation, or there is rebellion or danger of rebellion against the authority of the Government, or the President is unable with the regular forces at his command to execute the laws of the Union. See sec. 4, act January 21, 1903 (32 Stat. 776), as amended by sec. 3, act May 27, 1908 (35 Stat. 400) ; 32 U. S. C. A. 81a; M. L., 1929, sec. 1295; secs. 1 and 101, National Defense Act, as amended. (10 U. S. C. A. sec. 2, 32 U. S. C. A. sec. 82).
“The President has the authority to order the National Guard of the United States, as a part of the Army of the United States; into the active military service of the United States when Congress shall have declared a national emergency and authorized the use of armed land forces in excess of those of the Regular Army. See secs. 1 and 111, National Defense Act, as amended.
“When any or all parts of the National Guard are called as such into the service of the United States, they become a component of the Army of the United States but their units and members retain their State status as Federally recognized units and members of the National Guard in a state of temporary suspension. * * * See 29 Ops. Atty. Gen., 322, 1911-1912; secs. 4 and 5, act January 21, 1903 (32 Stat. 776), as amended by act May 27, 1908 (35 Stat. 400) ; 32 U. S. C. A. 81a; M. L., 1929, sec. 1295; and sec. 101, National Defense Act, as amended.” (32 U. S. C. A. sec 82).
We delete from our original opinion the following statement: “This Act, now Article 5890b, R. C. S., was enacted at the Regular Session of the 45th Legislature, 1937, Chapter 366.”*
The Attorney General in substance contends in his motion for rehearing that this Court erroneously held in its original opinion that the calling of relator to service as a member of the National Guard of the United States did not result in his vacating the civil office held by him in this State, and that such holding violates certain provisions of the law passed by Congress. The Attorney General contends that the following *427Federal statute upholds his contention that relator has vacated his State office by assuming the status of an officer in the United States Army under the conditions shown by this record:
“No officer of the Army on the active list shall hold any civil office, whether by election or appointment, and every such officer who accepts or exercises the functions of a civil office shall thereby cease to be an officer of the Army, and his commission shall be thereby vacated.” Title 10, Section 576 U. S. C. A.
Furthermore, in support of this contention the Attorney General strongly relies upon the following cases, among others: United States ex rel. Gillett v. Bern, Secretary of War, et al, 74 Fed. (2d) 485, and Thomas L. Fekete, Jr., v. City of East St. Louis, 315 Ill. 58, 145 N. E. 692, 40 A. L. R. 650.
The provisions of the statute above quoted do not, either directly or by implication, sustain the contention of the Attorney General. If it should be held that this relator occupies the status of an “officer of the Army on the active list,” and that the State office he now holds is a “civil office,” both within the meaning of the above statute — a question we do not decide, but leave to the Federal authorities to decide — still such statute makes no provision that an officer included within its terms vacates his civil office.
The real question before us is: Does relator by being called into the active service of the National Guard of the United States vacate the civil office held by him in the State? We are not called upon to decide whether he vacates his commission in the National Guard of the United States. That is a question for the Federal authorities to decide, and not for us to determine.
The case of Thomas L. Fekete, Jr., v. City of East St. Louis, supra, was decided on December 16, 1924, and the decision in that case was based on certain other decisions, among which was the opinion in Lowe v. State, 83 Texas Crim. Rep. 134, 201 S. W. 986. In the course of the opinion it was said:
“The identical question here involved was decided in Lowe v. State, 83 Texas Crim. Rep. 134, 201 S. W. 986. In that case a judge became an officer in the National Guard in 1917, and was later taken by the United States as an officer in the military service. Under a constitutional provision practically identical with ours, the court held when the judge accepted the position of an officer in the military service of the United States, and was placed on the pay roll as such, he vacated his office as judge.”
*428As pointed out in- our original opinion, Sections 33 and 40 of Article 16 of the Constitution of Texas were adopted for the purpose of avoiding the holding in the Lowe case. The case of Thomas L. Fekete, Jr., v. City of East St. Louis, supra, was decided long prior to the -adoption of Sections 33 and 40 of Article 16 of the Constitution, and the opinion in that case is not applicable to the case before us. It is not in any way in point, or even persuasive. The case of United States ex rel. v. Bern, Secretary of War, supra, involved the construction of an Act of Congress wherein, in substance, it was provided that under the War Department Appropriation Act of 1933 an officer in the National Guard, receiving a pension from the United States, cannot, without surrendering the pension, receive benefits extended by the Federal Government to members of the State Militia. See act March 4, 1933, sec. 1 (47 Stat. 1589) ; act June 15, 1933 (48 Stat. 153). Thus it will be seen that the question involved in that case was the right to draw both a pension and compensation under the Federal laws. The question involved here was not involved in that case, and the court did not have before it for construction the provisions of a state constitution similar to Sections 33 and 40 of Article 16 of our Constitution. Therefore the opinion of the court in that case is not applicable here.
We have carefully considered the contentions made by the Attorney General in his motion for rehearing, and same are hereby overruled. With the corrections herein made, our former opinion stands.
Opinion delivered November 22, 1940.
See original opinion, page 419.
See original opinion, page 419.