Lewis v. Lewelling

The opinion of the court was delivered by HoetON, C. J.: The question for our determinatiou in this case is, whether the governor of the state, as commander in chief of the national guard, comprising the active militia of the state, has the power to disband or muster out a company of the guard before the expiration of the term of its enlistment, except for insubordination, breach of discipline, insuffiiency of service, or other like cause. The constitution ordains that “The governor shall be commander in chief, and shall have power to call out the militia to execute the laws, to suppress insurrection, and to repel invasion; that the officers of the militia shall be elected or appointed, and commissioned in such manner as may be provided by law; that the legislature shall provide for organizing, equipping and disciplining the militia in such manner as it shall deem expedient not incompatible with the laws of the United States.” (Sections 2, 3, and 4, article 8, of the constitution.) Chapter 142, Laws of 1885; provides “for the organization, government and compensation of the militia of the state.” (Gen. Stat. of 1889, ¶¶ 3762-3798.) Section 5 declares that “In time of peace, the national guard shall consist of not more that 30 companies of infantry, two companies of cavalry, and one battery of light artillery.” Section 3 provides that “ The governor of the state shall be the commander in chief of the militia, with power to appoint certain military officers;” and § 7 provides that the major general, four brigadier generals, and the adjutant general, appointed by the governor, shall be a military board; and § 8, in prescribing the duties of this board, constitutes it an advisory body to the commander in chief on all the military interests of the state. The board is given authority to prepare and promulgate the necessary provisions, rules and regulations for “the organization, government and compensation of the national guard;” such provisions, rules and regulations to have force when approved [205] by the governor, as commander in chief. The board has also the power, with the consent of the governor, to make any changes in the military organization of the state that may be necessary to conform the same to the laws of the United States. power ofgov-ernor to dis-i state militia The statute does not make it compulsory upon the governor or the military board to keep the military force of the state up to its maximum of 33 companies. We have recently had occasion, in the ease of In re Sanders, Petitioner, ante, p. 191, to construe the words “organization,” and “management,” or “government.” Without unnecessarily repeating what was said in that ease, we are of the opinion that the power to organize and govern the national guard of the state, conferred upon the governor, as commander in chief of the militia, by the constitution and the statute, gives him the authority to recruit or fill up the national guard or active militia to the maximum limit permitted by the statute, and also to disband or muster out at any time any company thereof. Such power has been uniformly exercised by the governors of the state ever since the adoption of chapter 142. On October 1, 1887, six companies of the guard were disbanded and mustered out of the service upon the written order of Gov. John A. Martin, as commander in chief, signed by A. B. Campbell, as adjutant general. In 1889 and 1890, Governor Humphrey found it necessary, from various causes, to muster out of the service 10 companies. He filled their places with new companies. In 1890-’91, the same governor mustered out eight companies. Other instances of disbanding of companies of the guard might be mentioned. (Report of Adjutant General, Public Documents of the State, vol. 1, 1887 — ’88, p. 29; Report of Adjutant General, Public Documents, 1889-’90, vol. 1, p. 5; Report of Adjutant General, Public Documents, vol. 1, 1891-92, p. 31.) The general and uniform exercise of the authority by a coordinate department of the government, under any particular statute, is entitled to some consideration in the interpretation of its provisions, if it is at all doubtful in its terms. - [206] 2' Singtinni Section 4, of chapter 142, providing that enlistments in the national guard shall be for the term of five years, might limit the power of the governor, as commander in chief, to disband or muster out any company before the expiration of the five years, if enlistments in the militia were a contract, to be considered according to the principles which regulate contracts generally. But the state is not bound by the terms of an enlistment, and may put an end to the term before it has regularly expired. (15 Am. & Eng. Encyc. of Law, 399; United States v. Cottingham, 1 Rob. [Va.] 615.) „, of'tenii — ¶11-vahastatute. 4' undeclared10 The provision in § 4 permitting officers to be commissioned for a term of five years is violative of § 2, art. 15, forbidding the legislature to create any office the tenure of which is longer than four years. Military offi-cerg arg wj^jn tLe provisions of the constitution. Where the statute fixes a term of office at such a length of time that it is unconstitutional, the tenure thereof is not declared, and therefore the office is held only during the pleasure of the appointing power. (The People v. Perry, 79 Cal. 105.) Various other questions were discussed upon the hearing of this case; among others, the alleged unconstitutionality of the provisions of chapter 142, upon the ground that said chapter did not provide for organizing, keeping or disciplining all of the militia, but limited its operation, in times of peace, to 33 companies only. As the conclusion we have reached permits the disbandment of any company of the national guard by the governor, as commander in chief of the militia, and affirms the judgment, it is unnecessary to pass upon the other questions presented. If the statute, with the interpretation given to it by this court, is unwise or dangerous in any of its provisions, the legislature, which will convene in a few months, may, within the terms of the constitution, modify, amend or repeal it or any part thereof, as seems best to it, as the representative of all the people. As a general rule, the constitutionality of a whole statute ought not be passed upon, [207] unless directly involved in the final disposition of the case. The judgment of the district court will be affirmed. All the Justices concurring.