
    William Rhodes, et al v. The State of Illinois.
    
      Opinion filed December 28, 1899.
    
    
      StatutesChap. 129, Art. 9, Sec. 1, construed. Where the order of the Commander in Chief of State militia calling it into service contains no language showing that the company was called into actual service “for the suppression of riot and the enforcement of the laws,” and does not show that they were called to perform any duty “under orders of the Commander in Chief,” its members are entitled to no more pay than is provided by law for officers of the United States army and navy of like grade.
   This is a claim filed by William Rhodes and eight others who are members of company “M,” Fourth Infantry of Illinois National Guard. These claimants claim that in compliance with an order from the Governor of Illinois, they, with other members of their company, left their homes on the 27th day of April, A. D. 1898, and performed military duty at the Fair Grounds at Springfield until after their rejection for services in the United States Volunteer Army.

These claimants admit to having received, by Audit- or’s warrants drawn on the Treasurer of the State of Illinois, sums of money based on a like grade of soldier’s pay in the United States Army for the number of days in service, but claim they are entitled to two dollars per day for each days’ service rendered, and that there is now due them the difference between the amount claimed by each, being forty-eight dollars and the thirteen dollars, amount received by each.

Chapter one hundred and twenty-nine (129), article nine (9), section one (1), seems to be the authority upon which these claimants base their claims.

This section reads as follows: “When in actual service for the suppression of riots and enforcement of the laws and when on duty under the orders of the Commander-in-Chief, and it is so specified in such order, officers of the Illinois National Guard and of the naval force of Illinois, shall receive the same pay as provided by law for officers of the United States Army and Navy of like grade, and the enlisted men of the Illinois National Guard and of the naval force of Illinois, shall receive two dollars per day for each day service is actually so performed, said payment to be made on rolls prescribed by the Adjutant General.”

The order of the Governor through the Adjutant General reads as follows:

“Springfield, Illinois, April 25,1899. Commanding Officer Company “M,” Fourth Inft., Champaign, Illinois.

You will report your company for services in war, to your regiment commander at State Fair Grounds, Springfield, not later than noon, Wednesday. Acknowledge receipt of this order by wire.

(Signed.) J. N. Reece, Adjutant General”

This order, in our opinion, contains no language showing that the company was called into actual service “for the suppression of riot and the enforcement of the laws.” Nor do we interpret the order to show that they were called to perform any duty “under the orders of the Commander-in-Chief” which duty was specified in said order. Nor is there any evidence submitted showing that any services were performed by order of the Commander-in-Chief for the State of Illinois. Nor is there any evidence that any services were performed.

In the absence of these elements, we cannot see how this section applies, nor can we, from a careful reading of the military code of Illinois, find any law that will enable these claimants to receive more than they admit they have received, which pay is certainly, in our opinion correctly based upon section one (1) of article nine (9), which provides: “The militia when called into actual service, shall receive the same pay and allowance provided for like troops in service of the United States.” This section, from the reading of the proof submitted, is what we interpret the order was issued under.

The claimants’ bill is dismissed and judgment denied.  