AN IMPORTANT POINI.

Evening Post, Volume XCVI, Issue 12, 13 July 1918, Page 7

AN IMPORTANT POINI.

TERRITORIAL OFFICERS

WHO GO INTO CAMP.,

Am important point regarding the posi tion of Territorial officers who go intc camp as sergeants was argued this morning before the Supreme Court. The Bench was occupied by his Honour th.6 Chief Justice (Sir Robert Stout), Mr. Justice Chapman, and Mr. Justice Hosking. The case was brought By a Tcp ritorial.officer, Cyril Bussell Morris. The Solicitor-General (Sir John Sahnond) appeared for the Crown, and Mr. M. Myers and Mr. T. Neave for- Lieutenant Morris.

In liis statement of the case, Lieutenant Morris said he was an officer, in the reserve of officers of the 6fch Manawatu Mounted Eifles, holding rank as lieutenant. He was a married man with two children. He had been an officer of the Defence Forces of New Zealand for seventeen years, and in 1902 served with ilia -'New Zealand Bth" Contingent 'in South Africa. Since the outbreak of the present, war he had been desirous oi serving abroad with the New Zealand Forces. Instructions were issued .by Military Headquarters that officers of the. Defence Forces were not to enlist for service save as officers. A number of officers, including himself, had enlisted and served at Trentham as officers, anc they were subsequently informed that, owing to the surplus of officers, they were required to continue service without commissioned rank. He claimed ta be entitled to rank as- an officer under ■the New Zealand Expeditionary Forces Act,'l9ls, and the Military Service Act, 1916, and claimed, also, that the New Zealand Expeditionary Force constituted part of the Territorial Force established' under-"the Defence Act, 1908. _ He also asked the Court to define the right of an officer who has voluntarily enlisted after the passing ,o£ the Military Service Act, 1916, in the New Zealand Expeditionary Force, to retain rank as a .commissioned' ..officer., in the, Expeditionary Force,;.and to define-the right of such an officer who has-'not '.voluntarily...enlisted,...but. .who has been'compnlsorily 'called'Tip-for service, to retain rank as a commissioned officE? in the Expeditionary 'Force'," and to determine whether such an officer can be lawfully required to serve in the New Zealand Expeditionary Force otherwise than as an officer of commissioned rank.

In opening the case, Mr. Myers quoted a circular issued by the .Adjutant-J3en-eral stating that officers- who did not enlist as officers would forfeit their commissions, and, inferentially, *that those who did enlist as officers would retain their rank. i

Mr. Justice Hosking said it might be that an officer might not forfeit his rank as a territorial officer while serving as a sergeant. Mr. Myers : "It might mean, that you would have a man serving here as a colonel in one branch of the service and as a private in another." He contended that such a state of things would not be conducive to discipline. Mr. Justice Chapman : I know a man who left as a lieutenant, rose to the rank of major, was wounded in France, and is now a lieutenant. .. : .

Mr. Myers said thai on 3rd January, 1917, another circular was issued from Headquarters stating that officers called up in the ballot before their services were called upon would go into camp as officers and retain their positions as officers if found capable of commaiiding troops in the field; if found unsatisfactory they would be required to revert to 'the ranks.... Counsel read correspondence between Moirris and the Defence authorities to show that the leave he had been granted was as lieutenant, and he entered camp as a lieutenant, received pay as a lieutenant, was in April of this year granted leav» as a lieutenant on full pay, and yet. on 15th May was posted to the 46th Reinforcements with the temporary rank of sergeant. The .contention was that if Morris was a commissioned officer in the Defence Forces he could not be required to serve below his rank. 1 »-■ ' > . Mr. Justice fiosking: If he cannot be required to serve m a subordinate rank he can walk out of camp. Mr. Myers s At all events, the order to serve "as a- private or n.c.o. would .not be a lawful command.

Counsel pointed out that the Expeditionary Forces were constituted part of the Defence Forces under the Act of 1909, under which officers could: be appointed by commission, and under which Morris held a commission.

Mr. Justice Chapman: You say that if a man who has a commission in the ..Territorial Force volunteers for the Expeditionary Force, he is an officer in that force? ■•':'.■

Mr. Myers: "I understand the difficulty has been cfcrcome now, because they only appoint probationary lieutenants in.the Territorial Force, so the difficulty does not arise in regard to those who may be appointed now, or who may have been appointed for some time past." He also contended that there was no provision in the Expeditionary Forces Act for the issue of a commission.

Sir John Salmond: The notice in the Gazette is the substitute.

THE ONLY ALTERNATIVE,

Later in the hearing Mr. Myers said the only-alternative to Ms argument was that a major in the Territorial Forces might be a private in the' Expeditionary Forces, serving under a major who was his junior in the Territorial Forces, and that major might eit on a court-martia, 1 to try liis own'major in the Territorials. Mr. Justice Chapman remarked that it was possible to get such curious cases, but there were ways of correcting them. Mr. Myers retorted that hi 6 construction of the Act would get rid of such anomalies. He also segued that an officer in the Territorial Force- could not resign his commission. In that respect he was on the same footing as an officer in the Expeditionary Forces.. Mr. Justice Hosking: The time of war might be the time that he ought to be got rid of summarily. . „ ..„ Miv Myers: Take- the case of Morris. Supposing there was an invasion of New Zealand, what is the position of these men? They hold their territorial commissions, and they are bound to serve as commissioned officers in the Territorial ranks for the purpose of trying to repel any invasion. They cannot hold the two positions in such a case as private members of, the Expeditionary Force and commissioned officers in tlie Territorial Force. The two forces in that case at all events become one and the same.

Mr. Justice Hosking: There would h( no expeditionary force, because that implies going outside New Zealand. Mr.- Myers: It is still the Territorial Force, and you would have already reduced these officers in that very force. SOLICITOR-GENERAL IN EEPLY.

Sir John Salmond, in replying, said the proceedings had come before the Court by consent of the Crown, which thought it advisable to allow the officers to obtain a judicial decision on their position.

Mr. Justice Hosking: Couldn't you nullify the effect, of our decision the fol-. lowing day? Sir John Salmond: I think Ifc. is extremely probable- we could do so. For reasons good or bad, he added, the Government .had consented to the Court expressing its opinion. , . ; Mr. Justice Hosking: Supposing we decide in favour of the applicant., may •we not seriously interfere .-with disciplino

and the progress of the war, because ;-it may then bo necessary for the" Government to pass a regulation, and the passing of that regulation immediately after the sitting of the Court} to^ unset the Court's decision, would "bring-more" trouble than we should settled Sir John Sahnond said these men had been informed by the Defence Department that there-.was *no^r<X)jn*vioivthem as' officers, but 1 "they "said* they' did "not care whether they were wanted or not, whether men-who had *seen.service, had a better claini.' They claimed that; by the letter of the law, they were entitled to- <ro into the force and-get commandas commissioned "officers.' Efficiency whs nothing, priority was nothing. ..-They stood by the law.- - -He -submitted -that" they were not entitled to 'go into the Expeditionary Forces in any other capacity than .the Defence authorities thought they -were fit for." The Chief Justice-: You submit that a man must enter as a private unless tha Governor otherwise orders. Sir John Salmond: "Yes." He contended that the Expeditionary Force and ■the Territorial Force were.two distinct units, each' with a"" separate ■■ status, though the Expeditionary .Force was part of the Defence Force. He alsoxontend-^ cd' that there were no officers".in-We" Expeditionary Force except _,those ap ; , pointed 'bjr 'the' Gov6rntfr-General;'t)r' itho' Commander-in-Chief, under section 11 of ■the Expeditionary Forces, Act. . Section, 3,-sub-section 2, of "tH© Act also gave the Governor-General power "to appoint officers to the Expeditionary Forces, and to delegate such power to the officer commanding the forces. That was the practice that was followed. Before each reinforcement a Gazette notice appeared giving a list of the officer^ "appointed," though they had been acting, perhaps, for months before.' Thai was a matter purely in the discretion of the Defence authorities. Such men as were the subject ofc the- case might have been serving as officers in the camp; but they were: not "officers" in the strict, sense, of the term until their names were gazetted. The men whose cases were .-before' the Court were merely ml the .position of privates being trained as "officers", though." bearing the rank and ■we.arjng, the. unj-, form and receiving the pay of officers.When it was ascertained they, were not required; "they"'we're removed' 'frttm"th'S" Training Class and given the rank at sergeant. That *waV the 'abl**6l' 'the'aukKo-' rities which was declared 1.:t.Q.,be... invalid, and'illegal. He admitted • that" there' might be anomaMes created if there were no" discretion" of.TJudgmenfcTpr"sense.Von the", part of the Defence, authorities, but her; submitted 'it would "be more "anomalous' to! allow pntrained or, t partially-trained' Territorial officers to 'march' down to Trentfiam Camp and claim to haye the right io be officers of'the Expeditionary Forces.' The Court at this ' stags - adjournedl until 10.30 a.m. on Monday.