To His Excellency the Governor and the Honorable Council:
The undersigned respectfully comply with your requisition for our opinion on the question whether an officer of the militia, appointed and commissioned under Gen. Sts., c. 87, s. 19, continues to hold office after the expiration of five years from the date of his commission.
General and field officers of the militia are nominated and appointed by the governor and council; captains and subalterns are nominated and recommended by the field officers to the governor, who issues their commissions immediately on receipt of the recommendation. No officer commissioned in the militia can be removed from office but by the address of the legislature to the governor, or by fair trial in court-martial. The tenure that all commissioned *Page 707 officers have by law in their offices should be expressed in their commissions. Constitution, arts. 46, 48, 53, 73.
The Revised Statutes (c. 15, s. 3) and the General Statutes (c. 17, s. 3) provided that all officers appointed by the governor and council, except judicial and military officers, should hold their offices for the term of five years. The General Laws (c. 18, s. 3) have the same provision, with an additional exception of officers whose term of office is otherwise fixed by law. By chapter 2478 of Laws of 1861 (p. 2412, s. 16), officers and soldiers of the volunteer militia were bound to serve in the several companies, regiments, and brigades to which they belonged, for the term of five years, unless sooner discharged. This section was reenacted in 1862, and in the revision of 1867. Laws of 1862, p. 2552, s. 11; Gen. Sts., c. 87, s. 19. The act of 1862 (p. 2550, s. 5) made five years the term of service of non-commissioned officers and soldiers. The act of 1878 (p. 229, s. 1; p. 230, s. 6; p. 231, s. 18; Gen. Laws, c. 96, ss. 1, 6, 18) required enlistments to be for five years, and did not affect existing enlistments or commissions (Laws of 1878, p. 256, s. 4; Gen. Laws, c. 105, s. 4), with certain exceptions not material to the present question.
We do not find any statute limiting the tenure of commissioned militia officers to five years. We think the statute, which required them to serve five years unless sooner discharged, was a limitation not of their official tenure, but of their right of resignation. It imposed an obligation to perform the duties of their commissions five years, but did not withhold the right of command after that time. We find no satisfactory evidence of a legislative intent to make such a change as the reduction of military commissions to five years. Whether the tenure of any military office is established by the constitution, is a question not necessary to be now considered. We are of the opinion that an officer of the militia, appointed and commissioned under Gen. Sts., c. 87, s. 19, continues to hold office after the expiration of five years from the date of his commission.
August 20, 1883.
C. DOE. C. W. STANLEY. W. H. H. ALLEN. ISAAC W. SMITH. L. W. CLARK. I. N. BLODGETT. A. P. CARPENTER.
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