St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1888-03-04
A RELIC OF THE WAR.
Gen. C. M. Mccarthy Charges
That the First Regiment
Has No Colonel,
For Gov. MeGill, He Says, Has
Revoked Col. Bends Only
Commission,
And Under the Law the For
mer Commission Is
No Good.
Gov. McGill Says His Action
Was Perfectly Legal
and Right.

"The First regiment, NJ. N. g., is
without legal commander" say q
number of gentlemen who are familiar
with the history of the militia court
martial Of 1885, and the action of Gov.
McGill in revoking the commission I'M
der which Col. Bend was then acting as
commander of the regiment. The gov
ernor took this action, as it was given
out at the capitol, to correct the muster
rolls. This order was issued by the
governor Oh April 80 last.
Adjt. Gen. Seeley was out of the city
yesterday, as a GLOBE reporter who
went to interview him on the point was
executive and military officers at the
capitol were not inclined to talk On the
order of Gov. McGill. But eX-Adjt.
Gen. MacCarthy, who has apparently
kept himself informed Oh matters mill
tary since his term of Office expired, was
loaded for bear. He said he had been
aware of the condition Of things since he
returned to st. Paul last April, soon
after the order was issued, but had re-
Trained from saying anything, as he had
no desire for any notorlety. But he I'M
boSOmed himself in Warlike language to
GLOBE man.
WHAT He SAID.
'The militia court martial of 1885,"
said he, twas followed by the revoca-
ton of the commission of Col. w. B.
Bend by Gov. Hubbard. The case was
afterwards taken to the supreme court,
which sustained the action of the gov
ernor. The colonel was out of the guard
three months, but was not disqualified
from again holding office. Subse-
quently he publicly acknowledged his
characterization, and after election to
the vacant colonelcy, he was recommis-
stoned by Gov. Hubbard. He ac-
cepted and was mustered and
sworn in under this last commission
with rank from March 80, 1886, as the
law required, and that was supposed to
he the end of celebrated case in which
many points Of military law were set
tied"
But, general, did not Gov. McGill
revoke this last commissions" asked
the reporter.
eyes, the present militia commander
in-chief thought he knew more than his
predecessor who spent four years in the
field as regimental and brigade COM
mander," responded Gen. MacCarthy.
'Last April he issued an order which
attempts to undo the acts of Gov. Hub
bard in the Bend matter, and vindicate
man who vainly invoked the courts to
break down the military tribunals and
system, and after defeat, conviction
and punishment abiectly confessed his
errors in order that he might crawl back
into the service he had diSgraced."
'COl. Bends troubles" he continued,
''grew out of his refusal to parade his
command on Decoration Day because he
was not accorded the head OF the pro-
cession. Gov McGill no doubt disclaims
any intention to reflect on his prede-
ceSsor, but a mans intentions are better
inferred from his acts than from his ex-
pressionS. Let us see what he does and
what
MESS HE MAKES OF IT.
Here is General Order No. 8, A. G. o.,
3Oth April, 1887. The first paragraph
contains simply the governors letter of
instruction to his adiutant to issue, and
the following is the body of the order:
For the purpose of correcting the muster of
Col William b. Bend First Regiment of In
fantry, NJ N. g.. paragraph No. of General
Order No. II, of July ~ 1855, and that por-
ton of General Order No. z of July 81, 1886,
which recommissioned" him are rescnded,
and the commission issued to him on the
named date is hereby revoked.
By order of the commander-in-c chief.
L. W. SEELEY, Adjutant General.
"The above is very plain. 1t eX
Dressly reScindS the order of 1885 which
revoked Col. Bends first commission,
and revOkeS the commission issued in
1886. What is the result? Bend is to-
day without any valid commission or
authority in the National Guard. Gov.
McGill has revoked the only valid COM
mission he held, and he is now legally
in the same fix as he found himself after
the cOurt-martial in 1885. Worse, in
fact. for then he contended that the
governor had not the power to revoke,
his commission, but the supreme court
sustained the governor, and he cannot
now claim that Gov. McGill had not the
power to revoke his last commission.
He is like Fletcher when he visited
Manitoba! But it will be claimed that
the resembling of the order which
revoked his first commission reviyeS
that commission, and under that pre-
SumptiYe revival Col. Bend is now act
ing Here is where the executive ig-
norance of the law is only equaled by
It's presumption and is made manifest to
the serious injury of the service. 1t is
well defined principle of legislation
fixed on our statutes (Sec. 3, chap. 4,
Gen. Stat.) that the repeal of q repeal
ing law does not revive the original
law, and our supreme court has affirmed
the doctrine in Is Mimi, 1913, that the re-
peal of laws does not revive rights taken
away by those laws. When Gov. Nc
Gill reScinded
GOV. HUBBARD'S ORDER
of 1855, he did not revive Col. Bends
commission. and he could not, as he
wished, restore to him the rights he lost
when that commission was revoked.
Gov. Hubbard knew he could not recall
or rescind his own executed order, but
McGill thought he could do it for him,
and now finds that he has deprived
Bend of all his military rights and can
not restore them. The feathers have
been plucked from the bird and they
cannot be transplanted.
"rhe president may dismiss an officer
of the United States army, but he can
not restore him, except by authority OF
special act of congress. On this point L
refer you to "Winthrop's Military De-
cisions,' pages 237-24l. Gov. McGill
has dismissed Col Bend from the serv-
vice, and he cannot restore him, except
by special act of the legislature. His
order resembling Gov. Hubbard's order
of 1885 is unauthorized and Intellectual,
and his revocation of Bends last com
mission is final. He cannot rescind,
amend or recall it. He deprived Col.
Bend of all authority in the guard"
"What action can legally be taken at
this time, and under these circum-
stances?" asked the reporter.
1.-The only thing that can now be
DONE" he answered. lis to put the
lieutenant colonel in command of the
regiment and order a new election for
colonel. The Office of colonel is
vacant and the only way provided IN
the law for filling the vacancy is by cleo
ton and commission with rank from
date of election. Another officer may
be detailed to perform the duties of
colonel or commanding officer Of the
regiment, but w. 3. Bend is once more
. 10 oifiyan ,,iI1 mn ranIr M. on