236 U.S. 75 - Lieutenant Colonel Daniel Stearns v. Brigadier General George H Wood

This is a direct appeal from the district court, which held that the original bill states no cause of action. It must be dismissed unless the case involves the construction or application of the Constitution of the United States, or the constitutionality of a Federal statute is fairly drawn in question.

The only serious attempt to show that appellant has a direct personal interest in the subject presented is found in the section of the bill which alleges that he is now serving as a major in the inspector general's department of the Ohio National Guard, and is aggrieved because defendant Wood, the adjutant general of the state, is about to put into full force and effect a general order issued by command of the Secretary of War, and known as circular No. 8, which, without right or authority, directs that the maximum rank of senior officers in complainant's department shall be a lieutenant colonel, and if this is done he will be prevented from attaining and serving in the higher rank permitted by the existing laws of Ohio.

Sec. 3 of the military law (act of January 21, 1903, chap. 196), 32 Stat. at L. 775, as amended by the act of May 27, 1908, chap. 204, 35 Stat. at L. 399, Comp. Stat. 1913, § 3044, provides that on and after January 21, 1910, the organization, armament, and discipline of the organized militia in the several states, territories, and the District of Columbia, shall be the same as that which is now or may hereafter be preseribed for the regular Army of the United States, subject in time of peace to such general exceptions as may be authorized by the Secretary of War. Exercising his discretion, the Secretary of War directed the issuance of circular No. 8, to become effective January 1, 1914. It is comprehensive in terms and prescribes general regulations concerning the members, officers, and organization of the state militia. The validity of the order is denied.

The bill further avers that the adjutant general of Ohio has issued an order with respect to the mobilization of the National Guard of that state, wherein he commands that upon any declaration of war all furloughs shall be revoked and all the officers and soldiers shall assemble and proceed wherever directed by the President, whether within or without the United States. The validity of this is also denied.

The brief in behalf of appellant states that 'this action is a test case brought by an officer of the National Guard against the adjutant general of Ohio, who are nominal complainant and respondent, and involves the construction of certain constitutional provisions, as follows:' art. I., § 8, ¶16; the 2d Amendment; the 10th Amendment; art I., § 8, ¶15; the Preamble to the Constitution; the provision making the President commander in chief of the militia when called into the Federal service; the power granted to Congress to raise and support armies. 'The action also seeks a construction with respect to the right of the President and Congress over the National Guard of the several states, and the status and legal relation of the officers thereof to the War Department; and raises the further question whether the National Guard or organized militia may be used without the territorial limits of the United States, as such.'

The general orders referred to in the bill do not directly violate or threaten interference with the personal rights of appellant—a major in the National Guard, whose present rank remains undisturbed. He is not, therefore, in position to question their validity; and certainly he may not demand that we construe orders, acts of Congress, and the Constitution for the information of himself and others, notwithstanding their laudable feeling of deep interest in the general subject. The province of courts is to decide real controversies, not to discuss abstract propositions. Little v. Bowers, 134 U. S. 547, 557, 33 L. ed. 1016, 1020, 10 Sup. Ct. Rep. 620; California v. San Pablo & T. R. Co. 149 U. S. 308, 314, 37 L. ed. 747, 748, 13 Sup. Ct. Rep. 876; Richardson v. McChesney, 218 U. S. 487, 492, 54 L. ed. 1121, 1122, 31 Sup. Ct. Rep. 43; Missouri, K. & T. R. Co. v. Cade, 233 U. S. 642, 648, 58 L. ed. 1135, 1137, 34 Sup. Ct. Rep. 678.

We cannot consider the points suggested, and the appeal is dismissed.