The province of courts is to decide real controversies, and not
to discuss abstract propositions, and this Court cannot be called
upon to construe orders, acts of Congress, and provisions of the
Constitution for the information of persons whose rights are not
directly affected or threatened, notwithstanding their laudable
feeling of deep interest in the general subject.
Page 236 U. S. 76
An officer of the National Guard whose personal rights are not
directly violated or interfered with and whose present rank remains
unchanged thereby cannot, in this Court, question the validity and
constitutionality of the General Order contained in Circular No. 8
issued by the Secretary of War pursuant to § 3 of the Military Law,
Act of January 21, 1903, c.196, 32 Stat. 775, as amended by Act of
May 27, 1908, c. 204, 35 Stat. 399, relative to the organization,
armament, and discipline of the organized militia and orders of the
Adjutant General of Ohio with respect to the mobilization of the
National Guard of that state and commanding that, upon any
declaration of war, all furloughs be revoked and the officers and
soldiers shall assemble and proceed wherever directed by the
President of the United States, whether within or without the
United States.
The facts, which involve the jurisdiction of this Court on a
direct appeal from the district court, are stated in the
opinion.
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
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
Page 236 U. S. 77
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, c. 196, 32
Stat. 775, as amended by the act of May 27, 1908, c. 204, 35 Stat.
399) 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 prescribed 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
Page 236 U. S. 78
of certain constitutional provisions, as follows:"
Art. I., § 8, Par. 16; the Second Amendment; the Tenth
Amendment; Art I., § 8, Par. 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,
134 U. S. 557;
California v. San Pablo Railroad, 149 U.
S. 308,
149 U. S. 314;
Richardson v. McChesney, 218 U. S. 487,
218 U. S. 492;
Missouri, Kansas & Texas Ry. v. Cade, 233 U.
S. 642,
233 U. S.
648.
We cannot consider the points suggested, and the appeal is
Dismissed.