The morning call., 1890-12-26
PEEK-A-BOO.
A Major. Generals Game With
the Retired List.
It Is Held That One Wrong Is Made Right
by Another Wrong Interpreting
the Queens English.

under the circumstances the distinction of
being the only one on that list with that
rank, yet having in the outset no right what
ever to be on that list.
One set on the retired list is composed OF
commissioned officers, "who shall have
served as such in the National Guard OF
this State for the continuous period OF
eight years." but all on the list only
are subject to detail for duty by
orders from the Communicated Chief -
when detailed for active duty other than
upon Boards of Officers, court-martial and
courts of inquiry they shall only be entitled
TO the rank which properly belongs to the
Office the duties OF which they are detailed
to perform" yet con all occasions of cere-
mOny shall take rank next to officers of like
rank upon the active list" Officers on the
retired list continue therefore officers of the
guard.
In the desperate effort to have the name
in question restored to the list ON the plea of
legal technicali.y, a startling proposition
was also advanced and in all seriousness
argued, to the effect that any officer is eligible
to be placed On that retired list who may
have ever. from the time Of the admission of
the State into the Union, served an aggre-
gate of eight years on the installment plan.
whether in The California State Militia -
or Its successor, the n. 6. c. In fact the
law admits OF 10 such construction. and to
the credit of Brigadier- General Il. II. Orion,
Adjutant-Gener raj. and also to Attorney
General G. A. johnson, who apparently
discerned 1.-THE Niger in the fence" they
have Studiously avoided to give official recog-
milton to any such perverse construction OF
law. which has never been questioned
until this case, and then for reasons.
oRToN's SPECIAL ORDER.
Nl.so l<,., F.,- IN
the retired list Is in the following:
GENERAL HEADQUARTERS, STATE OF J
CALIFORNIA, ADJUTANT-GE ERALS OFFICE,
sAcRAMENTo, November 10. 1890
Special Orders, M. At.
In compliance with special Instructions from
the Comlndnder-in-C Chief, IL Is hereby ordered
that Special ORDERS No. 90, issued from these
headquarters, October 3, 1887, be and The same
Is hereby resciuded and rendered null and void
and The name Of " abr TurnOull is restored 10
The retli ed list OF the National Guard OF this
Stale, with his rank of Maj0f.Gene al, as deSg-
mated in Special Orders No. %, retiring said
officer. aud dated April 8, 1887.
In addition to SAID specific Instructions OF the
COMMANDMENT CheI canceng said Order NO 90.
and restoring Majoi-Genera Iurubuirs name TO
ths retn ed list OF tie National Guard, this action
is also based upon an exhaustive opinion by Al
tofrey Law q. Frank Smith, now on hle in
this office, aud cuncurrcd in By General w. Ii.
l.. Barnes and Attorncy-Geuerai George A.
Johnson to the effect that the reliie OF An
officer OF the National Guard by Commander
in-Cbief cannot aferward be reviewed or ie-
veked by any successor, nor does the power
exist anywhere Except i'll a military courD 10 de-
rilve such officer OF the privileges OF his retire.
ment. By order oil the Commander In Cblef.
[OifciaLl K. Il. ORToN AdjuIant- General.
General Orton's reason for keeping this
special order the profound secret that he
did Is not apparent. 1t was the same Sc
recy which permitted the original biunder
in placing the name on the list, without a
shadow OF right, during the Cosby admins
tration of the Adjutant-GeneraP office.
Walter Turnbull fortunately was retired
"by the late Governor Bartlett with the
rank of Major-General, but, unfortunately,
during his absence from the State ana With
cut the intervention of any court. either
military or civil, Governor Waterman un-
dertook 10 revoke his retirement, and issued
All arbitrary order to his Acknowledgement
(R. Ii. Orton directing him to erase the
name frcm The roster Of retired officers, and
the Acknowledgement did So"
In an opinion given Walter Turnbull, at
his request, by G. Frank Smith and con-
cured in by w. Ii. L. Barnes. whom Adj
jutant-General Orton styles General in
The special orders, though he has no rank
years-in the n. G. c.. it is ella med, and
rightfully, that General Orion's order, IF
not blunder, was the mere usurpatiOn of a
power that had no existence-it vas void
order, u nulliiy, and had no force or value,
except in 80 far as the Acknowledgement
make the ordered erasure or revocation as
he called il. But this eraSure was void
act, because based upon void ORDER"
BROKEN RECORD OF SERVICE.
To intellig-ntly understand the cOntro-
versy, which has evoked not little discus
sion and adverse criticism, 1t Is absolutely
necessary to know Walter Turnbull's record
of service. Ii is as follows:
Enlisted IL Company B, First Infantry, De-
cenber %. 1868; appointed corporal, 1860;
sergeant. 1867; exemption certificate granted.
August O. ls71-a service as an enlisted man OF
about years. Z months and IL days, after
which he stepped out OF the National Guard aud
remained OUT Of II for about Ten months amt
hall. But this service does not affect his pl cs
on tne retired list.
Commissioned First Lieutenant and Quarter.
master FIJI st Infantry, June &c, 1872; Adjutant,
March IS, 1873; resigned. December 81, 1874
Il service OF 2 years. months aud days. fol
lowed BY another long aud apparently farewell
leave-taking from the n. q. C., which continued
Tor Il period of q years, 3 months ana % days.
Commissioned Lieutenant Colonel aud Division
Inspector (Major-GeDeral ". Ii. l.. Barnes
stain, April %, 1880; resigned. August 9, 1880;
aforementioned First Infantry, August 2.
1880; Najoi-General, February l, 1888; re-
signed for the second and last time, December
50. 1864 service of years. 8 mouths and
days with his name first placed on the retired
list IN April, 1887, 3 months and days alter
final resignation, so that the total service OF %
years and days IN three INSTRUMENTS, one as
an enlisted man and TWO as a commissioned ON
Ger, has TWO Interruptions amounting In time 10
years, months aud Z days, ieayin. an &c. ual
total service OF 16 years, months and 20 days,
aud as commissioned officer OF 10 years,
months and IL days, with yawning gap VI D
years, months ana 22 days, as shown before.
Having in some incomprehensiDie manner,
in April, 1887, been placed on the retired
list with this demonstrated time-riddled
record of service and the name erased one
year five months and twenty EIGHT days at
ter, the restoration is ordered after four
years seven months and five days upon a
legal opinion rendered by TWO lawyers anu
in which three points are urged:
1. Whether under subdivision 3. Section 973
Of the Political Code. general officers OF The n &.
G. can be retired from active service and placed
upon the retired list?
2. Whether service as such officer for eight
consecutive years is indispensably necessary TO
such retirement?
8. Whether the retirement OF an officer by one
aside by a succeeding Chief Of his
own volition?
QUESTION OF PROCEDURE
The first proposition is answered in the
affirmative. to which no one can find fault,
as no one will or can deny the right of any
commissioned officer to go on the retired
list after services for the continuous period
of eight years; and as the opinion with
oracular wisdom declares, general officers
are as certainly commissioned officers as are
captains or coloDels."
''The retiring officer of the two classes
must make application to his brigade COM
mander" in either case, though the law is
silent. as to whom the continuous eight
years service shall apply, and the Com
mander-in-Ch cannot issue orders re,ir-
ing one until officially notified by the
Brigade Commander atteSted by the Adju-
tant-Gsneral, so that the rational cnnstruc-
ton is that the application is left "to take
its usual course OF transmission through the
usual channels" In accordance with this
"a Brigader would apply to the Com
mander-in- Chief through his Major-General,
and the Major-General, having no interute
diary, must apply direct to the Commander
in-Chef, for it would be absurd to claim
that the statute intends that the Major
General must notify his superior through
one OF his inferior officers" The point is
really nothing more than one of procedure,
and as such would not seem even serious
enough TO warrant the space given it in the