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| 296 the State, section 23, provide for revoking the commissions of officers after an examination by a military board, appointed by the Governor, which has reported the officer incompetent or unfit to discharge the duties of his office. "I see in the law no other way of relieving an officer from his position in the State militia, and certainly these provisions are sufficient for all practical purposes. Even if the matter were doubtful, which, I think, it is not, any court would naturally incline to place that interpretation on the law which would give security to officers in the tenure of their positions. "As Hook at the law- I could hardly imagine a more arbitrary exercise of power than for the Governor to undertake to retire any officer duly commissioned in the State militia by his mere order. Certainly it \vould render the positions of officers in the State service most unattractive. "The author of the circular seems to have had doubt as to this power to retire officers ; for it is provided in clause 5 that all retired officers who deemed themselves aggrieved by any person reporting them physically d_is-qualified may make complaint and will be heard as to whether or no a mili-tary board shall be appointed in accordance with section 23 of the militia law. "This is practically the same as if some State law should declare a man convicted of a crime and sentenced, and should then give him the privilege to complain and be heard, so that it might be determined whether a court would hear his case. The trial ought to come before the retiring, and not afterward. "I end as I began, by saying that the minute the Fifth Regiment is mustered out of the Federal service it returns to its old personnel, with its old officers, just as if nothing had occurred—and the law seems to cover the whole case." The circular to which Major Yenable referred, provided in Section 5, that: "All officers who deem themselves aggrieved by the action of any medical officer or any other person in reporting them physically disqualified will be permitted to make their complaints in writing; and they will be heard, so that it may be determined whether or not a military board shall be appointed in accordance with Section 23, of the Militia Law, to inquire into their efficiency, etc. But such officers are notified that the physical examination in all such cases will be in accordance with army rules, which will be prescribed hereafter for all examinations, and that in the event of an unfavorable report in accordance .with these rules or for any other cause, their commissions will be revoked unless there be modifying circumstances in any case. In all such cases the officer's conduct since retirement will also be considered." This was followed later by an order stating that thereafter all officers applying for commissions in the Maryland National Guard, and all officers who might be ordered before a board, under Section 23, of the Military Law, would be examined according to the rules governing admission to the United States Army. As the retired officers had been retired under examinations conducted by these same rules, it seemed a foregone conclusion that if they were examined again by these rules, no matter what their efficiency in the National Guard might be, the result would be the same. Colonel Markoe, Major Grim, Captains Miller, Albers and Stokes applied, however, to be reinstated. |