Show STATE NOT HOT responsible sergeant of the utah 14 rational guard while at drill on OB the 3rd ard of february last was wa unfortunate enough to fall breaking the little finger of the right hand who Is ie a tailor by occurs occupation aou was waa la in consequence incapacitated from attending atten cling to hie big regular work in a letter ao addressed dressed to adjutant general john Q cannon be asked that the state him for the time tae be oad nad lost through having a broken flo an ger the question qu eatton of whether or not the th state stale WAS wag liable was waa referred re erred to the attorney lor for au opinion that eitleman eLt leman holds bolda that the state la is not nol responsible aud and advises the rejection reeo tion of the claib the opinion is ia herewith given in full fuh john Q cannon adjutant general of national guam of utah SALT LAKE CITY utah dir air the claim of sergeant B U C Rasmus soo of the national glarus guarus ol of utah tor for injury received while at arth un on the evening of february 8 1897 which was waa referred rei erred by you to suit nir office for an opinion and suggestions bus bag been duly and I 1 beu bee to submit the following in relation thereto I 1 assume that you wish to be advised whether wore there exists a legal liability against the state lor for abla claim sec i ion 14 of the military code provides provided 1111 it an officer or an enlisted mau it wounded or otherwise other wre disabled or killed or ales of wounds or other lu in juries received while doing duty in ID active service of the state brie he hie hi widow or chi chiU liron reu shall receive irow be abo state just juat and reasonable tell relli W t thin tb Is the only law which woul J 1 seem to provide zolie tot or IL juries sustained and its ita inter or construction therefore becomes become important in we tie determination of the question involved tn tb whole question would seem to turl tun upon the meaning to be attached to me 1116 phrase while doing duty la in acuto active of the state or what is 18 still more to the he phrase active service bervice by the use of lif theme words word may it be said ald that the intended intend that drilling or otner other engage of the militia for we the purpose ol of improvement of its ita members io in mill tary science mod constitute erv foe aid aed that for every irjary received while thus thua engaged the he state stale should respond la in damages wag I 1 am of opinion that snob was wag not the intention and that there fort fore there la Is no liability the state for or suck claims sections Section all 11 and 12 of the military code cede not only emphasizes emphasises es this conten eions tion but settles it absolutely seo sec tion lion 11 the commander in chief shall aall have bave power to carry out oat any portion of the national guard as aa he be may loam necessary to BIAL invasion to quell aid la in the suli pres eion alon of riots ciote to aid the civil au authors ties tn in the execution of the laws law of the state or in time of public dan gar aper it section 12 when the national guard shall ahall be in active service lei vice as aa provided to in section 11 of this act its commissioned monte shall be paid the same as aa of floors of like grade in the beaular res alar army of the united 1 and then beo goes on and provides pro w what but compensation shall be rege received ived by various officers and other members of the ibe national Natio oal guard then section 12 provider provide in effect that when aa called out it shall ahall be considered to be in active ser service ilce it will be observed that to this am lion the legislature Legie lature has baa defined the words active service to moss only tier vices to be rendered when cmcnally called out by the commander in ohler chief to reelect Inva to quell insurrect In tiong aid in the suppression aupp relon ot of riots to aid the civil authorities in the exe axe gutlon boullon of ahe laws law of the be bbate or la in time of public dauger danger it the logis lature in using the worda active set er vices vice in section 12 intended to limit its ita application to the purposes and aad circumstances mentioned meation ed in section 11 and of this we think there can be no 30 doubt it is ia fair to presume pre flume under the fundamental rule of statutory construction that when it used need we the same words worde in sea aeo tion 14 it did so 0 o la in the same flame sense aud and under the same limitation it abig be corrects correct wen section 14 no relief could be granted either to a member of abe be national guard or to bla bin widow or children unions the or cr death resulted reaal ted while in active service as provided in section 11 there being no law authorizing the allowance or payment of the claim la in questions question yo you U are advised that too the vaine name should be rejected I 1 have the honor bonor to be very respectfully yours A C U BISHOP attorney general |