St. Paul daily globe., 1886-02-19
Judges of the Supreme Court Decide
Against Col. Bend and His Cele-
brated Case.
Active Work Under Way for Fitting Gel
ebration of George WashingtOn's
Birthday.
Lecture by Judge Flandreaune nc
Outlook for a Base Ball Team
not Favorable.
saltwater Wins the Prize Banner--
Tmmfgratfon Statistfcs--Amuse-
ments--General Local.
AGAINST COL. BEND.
Text of an Opinion Given by tho
supreme Court.


supreme Court.
decision was yesterday fled in the
e,,,reme court in the well-knOwn case OF
Col. w. i. Bend against Lieut. COL rerry
Harrison. in which an attempt was mace 70
force the latter to show by what authorty
no evercised the functions of colonel OF
the First regiment NJ. \. q. Inc
decision was against Col. BEND
the order to show cause peins
discharged. The case is pretty laihillaI ~
the public, being an Outgrowtn OF Ihe court
martial last summer. In view VI oio a.
eraI interest in the case and the points III
yolyed, the opinion is given III Iul'
THE OPINION.
rr1,o .o,o+or having sought from the attor-
nov General his official authority for the III
inc of an information in the nature Oh quo
1Varranto. and that officer having feIuseu
such application, the relator appigu tl,, 70 tn.s
court for leave to file the same 1hereupon ''i
an order was granted requiring ono bo,,Id
ont Ia show cause why the application snouIu
NOT he allowed Through this proceeulhE 1nS
relator seeks to have the respondent Iequi. -
10 chow Inv what authority he exercises lhe
functions of colonel of the First regimen VI
the National Guards Of this stale. Ino ~ ni'.s
ters now TO be considered are SuCh az 49, 49,
,,resented upon the order TO show cause UPON
The reIator's s petition, and the ai1daVlI Oh tpe
,,esnondent i'm answer thereto. From such
petitton and answer the following l"c'9 "P
pear; -. mann aIected
"a ,o,,,,'issioned as colonel and lieutenant
coIoneI resDectively, of the First regihent
of the National Guards OF TINS sials' W
which name our militia OrganlZaton 10 uc9's
mated Thereafter and on the ~ uay a
June. 1855, by command or the gopeInol u %
the stare 1who by the constitution - ,
constit,tod the commander-in-chiet OF
the military and naval forces y l
tbe state). issued through the adJulanI
general the relator was put uhoer al, -
was suspended from his connlahu' auu 'iIS =
respondent was ordered 10 take coii i1iaN 1' ~,
his regiment. On the 9th day OF Juiy' py
the further command of the governor an OF
der was issued through the adJutaht genera genera
ir terms revoking the commission ol tuS ie
lator as colonel, and directing the fesponuolt
TO continue ia the command OF the reg inieh'
until the further order of the comhlahuei III
chief Since June 2, when the nrst VI se tueso
orders was issued, the respondent mas as
sumed and exercised such command, per
forming duties ordinarily deVoiVlhg upon ',io nc
colonel IT is by reason OF such acts tIl"e NC ho
is here charged with having usurped tue
Office of colonel of the regiment. III is ailegeo
in the answer of the respondent that SUCH
DUTIES WERE PERFORMED
by him only by virtue of his Office as heuten-
ant colonel, and of the orders referred TO- anu u
both from the language OF the pettloh' anu
because upon the hearing, no suggestion was
made that such was not the tact' we consiucr
that that for the purposes or TINS appncallOh'
such allegation should be taken TO De true
The granting or withholding of leave to hle
an information at the instance OF q private
relator rests in the sound discretion OF Ihe
court and is not matter OF strlct lesaI Ils IL :,
Simpson VS.. DoWlan ~, N. w. Rep. 100;
Ad.. and Ell. n. S. 740; l28 Mass. 3Oo; DO VI
1853.
rho constitutional authority of the gov
ernor as scommander-in-chief of the military
forces of the state is recognized by the stat
ute providing for the organization OF lhe
National Guard, Chapter "a, General Laws
1884 While we do not doubt that the JufIs-
diction and power of the civil courts may eX-
tend TO acts which the commander-ln-chlet
may assume to do 10y virtue OF his once, out
which may be found to have been beyond the
scope of his authority, Corn VS.. Sewall'
26 Pa St 3ll vet we do not recognize our
right TO interfere with and oVerrule MS
action in the ordinary conduct of merely mil
itary affairs. Under what circumstances and
in respect to what acts OF that oihcer, tue
civil tribunals will exercise their Iuhcllohs,
we do not now consider. The fact
before us is that the commander-ln-chlef
ordered the lieutenant colonel TO take
command of the regiment. Ihe respondent
Obeyed the command as his DUTY required
him to do The propriety OF the order' or
the reasons which led to the issuing VI H. he
could neither overrule nor question. 80 Tar
as his conduct in the matter alleged against
him is concerned, it appears TO have been In
accordance with his duty, whether consld-
cred from military or from legal stand
point.
The orders referred to, so far as they al
feet the right and duty OF the respondent
and that is really the only question in this
proeeeding-relate TO purely military oper-
ations. with which it is not the province OF
the court TO interfere. We may not inquire
as to the reasons which induced the comman-
der-in-chief TO direct the lieutenant colonel
TO take command of this regiment and, be-
cause such reasons shall be found insuihclent'
to annul such orders. That would be Tor THIS
court to not only exercise the authority or a
military commander, but it would make sub
ordinate the military authority of that oii1cer.
which the constitution evidently intended
should be supreme. The order 10 show cause
is discharged DICKINSON, J.
IT Is NOT ENDED.
Col. Bend was seen by GLOBE reporter
yesterday evening, to whom he stated that
he had not read the courts opinion, and
hence could not say definitely what course
would be pursued. He expected to have a
conference with his attorney to-day. when
the next steps to be taken would be consid-
cred. Il think there is no doubt that the
governors action was unconstitutional,
said the colonel. ''There is one thing deli
nitely settled at least and that is that will
not let the matter drop until | succeed ol
get a decision from the supreme court which
leaves me no further recourse"