CHAPTER 81 - DELAWARE STATE GUARD

AN ACT TO PROVIDE FOR THE CREATION, MAINTENANCE, DISCIPLINE, LEGISLATION AND USE OF THE DELAWARE STATE GUARD.

Be it enacted by the Senate and House of Representatives of the State of Delaware, in General Assembly met:

Section 1. AUTHORITY AND NAME. Whenever any part of the National Guard of this state is in active Federal service, the governor is hereby authorized to organize and maintain within this state during such period, under such regulations as the Secretary of War of the United States may prescribe for discipline in training, such military forces as the governor may deem necessary to defend this state. Such forces shall be composed of officers commissioned or assigned, and such able-bodied male citizens of the state as shall volunteer for service therein. Such forces shall be additional to and distinct from the National Guard and shall be known as the Delaware State Guard. Such forces shall be uniformed.

Section 2. ORGANIZATION, RULES AND REGULATION. The governor is hereby authorized to prescribe rules and regulations not inconsistent with the provisions of this act governing the enlistment, organization, administration, equipment, maintenance, training and discipline of such forces; Provided, such rules and regulations, insofar as he deems practicable and desirable, shall conform to existing law governing and pertaining to the National Guard and the rules and regulations promulgated thereunder and shall prohibit the acceptance of gifts, donations, gratuities or anything of value by such forces or by any member of such forces from any individual, firm, association, or corporation by reason of such membership.

Section 3. PAY AND ALLOWANCES. When it may be necessary to use the Delaware State Guard for public defense against foreign or domestic violence, or to preserve the public peace, the Governor, as Commander-in-Chief, shall have power according to the emergency, to call out the Delaware State Guard or any part thereof, for that purpose. For each day's service while on such duty, enlisted men of such force shall be paid as follows: Enlisted men of the first grade, $4; enlisted men of the second grade, $2.80; enlisted men of the third grade, $2.40; enlisted men of the fourth grade, $2; .enlisted men of the fifth grade, $1.80; enlisted men of both the sixth and seventh grades, $1.20; besides necessary subsistence; and each commissioned officer shall be paid the minimum base pay of officers of like grade in the United States Army and necessary expenses for rations and quarters incurred in the performance of duty.

Such pay and any expenses incidental to said mobilization shall be paid by the State Treasurer from any moneys not otherwise appropriated, upon warrants issued therefor by The Adjutant General, and countersigned by the Governor.

Section 4. REQUISITIONS: ARMORIES: OTHER BUILDINGS. For the use of such forces, the governor is hereby authorized to requisition from the Secretary of War such arms and equipment as may be in possession of and can be spared by the War Department; and to make available to such forces the facilities of state armories and their equipment and such other state premises and property as may be available, and the State Treasurer is hereby directed to make payment therefor as the governor may order by check drawn on the General Funds of the State of Delaware in favor of the United States of America.

Section 5. USE WITHOUT THIS STATE. Such forces shall not be required to serve outside the boundaries of this state except:

(a) Upon the request of the governor of another state the governor of this state may, in his discretion, order any portion or all of such forces to assist the military or police forces of such other state who are actually engaged in defending such other state. Such forces may be recalled by the governor at his discretion.

(b) Any organization, unit or detachment of such forces, upon order of the officer in immediate command thereof, may continue in fresh pursuit of insurrectionists, saboteurs, enemies or enemy forces beyond the borders of this state into another state until they are apprehended or captured by such organization, unit or detachment or until the military or police forces of the other state or the forces of the 'United States have had a reasonable opportunity to take up the pursuit or to apprehend or capture such persons; Provided, such other state shall have given authority by law for such pursuit by such forces of this state. Any such person who shall be apprehended or captured in such other state by an organization, unit or detachment of the forces of this state shall without unnecessary delay be surrendered to the military or police forces of the state in which he is taken or to the United States, but such surrender shall not constitute a waiver by this state of its right to extradite or prosecute such person for any crime committed in this state.

Section 6. PERMISSION TO FORCES OF OTHER STATES. Any military forces or organization, unit or detachment thereof, of another state who are in fresh pursuit of insurrectionists, saboteurs, enemies or enemy forces may continue such pursuit into this state until the military or police forces of this state or the forces of the United States have had a reasonable opportunity to take up the pursuit or to apprehend or capture such persons and such military forces or organization, unit or detachment thereof are hereby authorized to arrest or capture such persons within this state while in fresh pursuit. Any such person who shall be captured or arrested by the military forces of such other state while in this state shall without unnecessary delay be surrendered to the military or police forces of this state to be dealt with according to law. This section shall not be construed so as to make unlawful any arrest in this state which would otherwise be lawful and nothing contained in this section shall be deemed to repeal any of the provisions of the Uniform Act on the Fresh Pursuit of Criminals.

Section 7. FEDERAL SERVICE. Nothing in this act shall be construed as authorizing such forces, or any part thereof to be called, ordered or in any manner drafted, as such into the military service of the United States, but no person shall by reason of his enlistment or commission in any such forces be exempted from military service under any law of the United Stated*.

*So enrolled.

Section 8. CIVIL GROUPS. No civil organization, society, club, post, order, fraternity, association, brotherhood, body, union, league, or other combination of persons or civil group shall be enlisted in such forces as an organization or unit.

Section 9. DISQUALIFICATIONS. No person shall be commissioned or enlisted in such forces who is not a citizen of the United States or who has been expelled or dishonorably discharged from any military or naval organization of this state, or of another state, or of the United States.

Section 10. OATH OF OFFICERS. The oath to be taken by officers commissioned in such forces shall be substantially in the form prescribed for officers of the National Guard, substituting the words Delaware State Guard where necessary.

Section 11. ENLISTED MEN. No. person shall be enlisted for more than one year, but such enlistment may be renewed. The oath to be taken upon enlistment in such forces shall be substantially in the form prescribed for enlisted men of the National Guard, substituting the words Delaware State Guard where necessary.

Section 12. ARTICLES OF WAR: FREEDOM FROM ARREST: JURY DUTY.

(a) Whenever such forces or any part thereof shall be ordered out for active service the Articles of War of the United States applicable to members of the National Guard of this state in relation to courts martial, their jurisdiction and the limits of punishment and the rules and regulations prescribed thereunder shall be in full force and effect with respect to the Delaware State Guard.

(b) No officer or enlisted man of such forces shall be arrested on any warrant, except for treason or felony, while going to, remaining at, or returning from a place where he is ordered to attend for military duty. Every officer and enlisted man of such forces shall, during his service therein, be exempt from service upon any posse cimitatus* and from jury duty.

*So enrolled.

Section 13. SEVERABILITY. If any provision of this act or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to this end the provisions of this act are declared to be severable.

Section 14: REPEAL. All acts and parts of acts inconsistent with the provisions of this act are hereby repealed to the extent of such inconsistency only.

Section 15. SHORT TITLE. This act may be cited as the State Guard Act.

Approved April 14, 1941.