TERRITORIAL OFFICERS

Dominion, Volume 11, Issue 254, 15 July 1918, Page 7

TERRITORIAL OFFICERS

THEIR STATUS

CASE BEFORE SUPREME COURT

The Supreme. Court, in Banco, sat on to determine a point of law fcrariug on the /talus of Territorial officers who have Ijeen. ordered into camp ,»ith the rank of sergeant. On the bench-.were His Honour tho <.hief Justice (Sir ilobert Stout). His ..Honour; Air. Justice Chapman, and His JTonqlir Mr, Justice Hoskilig. A declara-tory-judgment was sought by Lieutenant y.vnl Itussoli; Morris to define his status ui the New.Zealand Expeditionary Force. Mr. M. Myers, with him Mr. T. Neave, J'Mieared for Lieutenant Morris, and Sir John Salmond. K.C., for tho Crown. Ihe plaintiff claimed ithnt. ho had been nn officer of thp. Defence For.ce for seventeen years, and 1 served for two vears Yith the Eighth Contingent in South 'Alrica. That since the outbreak'of tho present war ho had been desirous of serving'abroad and possessed knowledge of the orders and instructions issued from time to time-by'military headquarters. Instructions "'eve issued that officers of the Defence Forces were not to enlist for service in the New Zealand Expeditionary Force save as 'officers, and further instructions had been issued.from timo to time regarding the enlistment of such officers. That a number, of officers, including the plaintiff,' Vrho had enlisted lor service in the New Zealand Expeditionary Force, and entered' camp at 'trentham, .and served there as officers, were subsequently informed that' owing to the surplus of officers they were ■required to continue-.service without commissioned rank.. , Plaintiff offered his services in January, 1917, and duly enlisted on July 6, and entered camp, serving a-s a lieutoriant, and receiving pay for that rank -until November 19, 1917, and was granted-leave on full pnv as lieutenant fronv-'thnt (late until April 9, .1918. That at.no. time had it been sugKestctl, that ho'-VaV-other than an efiieient officer. . That many officers of the Defence Foreo of New' Zealand havo enlisted jn. I ho New Zealand. Expeditionary Force, both before and since the passing of. the Military. Service Act. Such officers, have ; not yet'.-.been received into camp as officers, and there aro a large number of officers of tho Defenco Forces who ,ara liable for service abroad in the Now' Zealand .Expeditionary Force lis reservists, of the. Second.Division who have not voluntarily enlisted for such service. ■

■ Plaintiff claimed'that, he was entitled ito rank: as a commissioned officer in the New Zealnml Expeditionary Force, and 'c'sked for a - declaratory. judgment that tho New' Zealand'■: Expeditionary Force raised under the provisions of the Expeditionary Forces Act, lfllfi, and tho Military '.Service Act,' 191b', constituted part of .till! Territorial Forco established under the Defence Act, 1909— Defining tho right of-an-officer of the, .Defence Forces : holding a commission granted under, the provisions of the Defence Act, JDOfi, or any previous Act of Parliament, or a commission with ouo of tho New Zealand contingents in. the So,uth African War, who voluntarily enlisted prior to the passing. of the Military: Service Act in the- New Zealand Expeditionary Force, to .retain rank as a. commissioned officer in tho New Zealand Expeditionary Force. '[Defining the right of such officer as aforesaid who has ■ ■ voluntarily enlisted after-'-the passing -of tho Military .Service Act, 1516, in the New Zealand' Expeditionary Force to retain rank as a commissioned officer in the said ''New Zealand Expeditionary Forco. Defining the right of such an officer as aforesaid, who has not voluntarily enlisted, but who has been compnlsorily called lip for service in the New Zealand Expeditionary Force .under the Military Service 1 Act, 1916, to retain rank as a commissioned officer in the Now Zealand Expeditionary. Force.

■-Determining'whether such an officer .as aforesaid can ho lawfully required to serve in tho New Zealand. Expeditionary Ferce otherwise than as an officer of commissioned rank.

". Mr. Myers''s'aid ! 'the case was a representative pnej as'there'were a number of other officers besides .Lieutenant Morris interested.in the result. The point raised by Mr, Myers was that if tho plaintiff was a lieutenant in tho Defence Forco prior to entering camp, or entered camp as could not bo'compelled to servo in a rank below that oa commissioned officer. He was directed to proceed, to camp as an officer, llr, Myers-argued the case at great length. Sir John Salmond, in replying, said tho proceedings were brought before the Court by consent of tho Crown, which thought it ndvisablo'to allow the officers to obtain a judicial ruling on their position.

Mr. Justice Ilosking: Could not trie Crown.nullify the effect of our decision? Sir .]olin Salmond said he thought i' •was. extremely probahle that the Crown could do so. For reasons' good or b>ri the .Government: had consented Id' the Court expressing its opinion; . Mr. Justice. Hosking:'lf wo decide' in favour of the plaintiff, may v.e not. seriously interfere with, discipline and progress of the war, ; because it may then be necessary far* the Government to pass a regulation, and the;, passing ".-of that regulation, immediately after the sitting of the Court:to upset the Court's decision would bring more trouble than- ue should settle '• .

Sir John Salmond said theso men had

been informed by the Dcfonce Department that (here was no room for them as officers, but they said they did not care whether, they were wanted or not,whether men who had seen servieo had a hotter claim.; they claimed that by the letter of the law they -were entitled In go into the Force and get commands as commissioned officers. He submitted that they were not entitled to go into camp in any other capacity than the Defence authorities thought fit.

The Chief Justice: You submit that a man must enter as u private unless the Governor-General otherwise orders? Sir John Salmond: Yes. Counsel then contended that the Defence Forces and the Expeditionary Forces were distinct branches. He agreed with Air. Myers Hint they were related prior to. Iho passing of the New Zealand Expeditionary Forces Act, .but not since. The Expeditionary Force had no connection With the Territorial Force. He submitted, that the Territorial Force stood 7>y ilsolf, and, further, I hut there were no officers of the Expeditionary Force except Ihose appointed by tho Governor-General or the Commander-in-Chief under section 11 of the Expeditionary Forces Act. II was the only section which provided for tho appointment of officers, and ihe method of their appointment. The statutory l power to appoint officers did not mean I hat the men appointed must previously have been officers. Section 8, subsection 2, defined a member- of the Expeditionary Forces. This subsection also empowered the Gov-ernor-General to delegate.his power'of appointing officers to the commanding officer at the front.' Just before a -rein-forcement-goes, a Gazette notico is published, in which it is-slated that-"The Governor-General has been pleased to appoint the following as officers, clc." Tho final appointments arc not made until a, day or two before a reinforcement sails, although those appointed may have been acting as officers for some time previously. The appointments are at the discretion of the Department. The phnniill' arid the others with him claim-' ed to. have..been acting as officers : ii Trentham Cainp, but- they were not appointed officers: They were posted to the Officers', Training Camp at Trentham. They wore their uniforms as Territorial officers, they irero paid as' officers at the discretion of the Government, but they h'nd' no appointments in the Expeditionary Forces. After training it was discovered that thero was no room for them ns officers in the reinforcements, and they were posted as scrgeani.s to the reinforcements.. Air. Myers contended that if a man was an officer in tho Territorial Force he could not also be a private in Iho Expeditionary F'orce, hut Sir John Salmond contended that since the two -.Forces were, distinct it wn.s quito feasible. There was no double status.

■Sir John Snlmoud had not finished his address when the Court roso 'fit 1 p.m. .The further hearing was adjourned until 10.30 ii.m. to-day.