New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1890-10-24
NATIONAL GUARD AFFAIRS.
TROUBLE ABOUT REORGANIZATION
DIFFICULTIES WHICH THE ADJUTANT GENERAL
MIST MEET-A JUDGES DECISION.

DIFFICULTIES WHICH THE ADJUTANT GENERAL
MUST META JUDGES DECISION.
II half the threats Of Injunctlons. mandamuses and
other civil court wrs are carried into
effect the Adjutanten will not have such plain
sailing expected In carrying Into erect MS plan
Of re0rganizng the 22d Regiment. The cOnstth
tionalty of his action 1t Is said will be tested In the
court OF last resort in this State 1t Is TO be hoped
that 1t will be- II for other reason than to have
judicial determination Of the law as 1t now stands
According to the Regulations the power Is explicitly
given to the Comrnanderin Chief to dlsband any Or
ganizatOn when In his discretion such an act wouo DO
for tne good OF the service. The letter OF the law Is
not questioned but the trouble is that the CONSTITUTION
says
Article * Section 5, "The commissioned officers OF
the militia shall Dc commissioned by the Governor ana
commissioned officer Shall be removed from ONCE
unless by the Senate the recommendation OF the
Governor, stating the grounds on which such re-
moval Is recommended, or by the decision OF cohrt
martial pursuant to law. The present officers OF the
militia shall hold their commissions subject to removal
Is before provided"
Again, section @: "In case the mode Of election and
appointment of militia officers hereby directed shall
not be found conducive to the improvement Of the
militia the Legislature may abolish the same, and pro-
vide by law for their appointment and removal. II two
thirds of the members present in each house shall
concur therein
It Is contended that no such law Is contemplated
In Section has been passed and that consequently
the Regulation giving the Commandern-Chef the
power to abolish regiment inrInges upon the Con
stitution by providing for removal from Office of com
mssioned officer otherwise than according to the pro
visions OF the Constitution. Those who make this
contention to forget important consideration
and that Is that placing officer the Supernumeary
list Is not removing him from Office, nor Is 1t taking
his commission away from him. II is simply. strictly
speaking. removing him temporarily from command
This power has been exercised over and over again
and the that there few decisions on the
subject In the civil courts Is that the power ha, seldom
been questioned. Fortunately, however. the con-
testants are not entirely in the dark with respect to
Judicial action on this question. The only decision
which can be found in the reports is away back
In 1852 which is decision by Judge Cerkc, of the
Supreme Court.
The question raised there exactly the same aS
the one in the present case, but the circumstances
which led up to 1t somewhat different. The Gov
ernor In his capacity Commandcr-in- Chief of tho
military forces Of the State issued order on March
rs, 1850, for the consolidation Of the companies com
posing the 10th Regiment of the Fourth Brigade Of
the First Division OF the State militia with the COM
panles Of tho 10th Regiment of the brigade and
division. In carrying that order into effect Lieu
tenants Colonel Henry a. Weeks, of the 18th Regiment
list, and he brought suit against John Even. then
brgadergeneral Of the Fourth Brigade TO restrain him
from carving the order into effect upon the ground
that II violated the Constitution in removing from
Office several commissioned officers otherwise than ac
corng to the method provided for in the Constitution
This came before the Supreme Court and was tried
before Judge Clcrhe. in May, 1859 at Special Term.
The part Of the Judges opinion which deals with the
present question follows
"Section 5 Of the Constitution provides that no
commissioned officer shall be removed from Office I'M
less by the senate recommendation Of the Governor
stating the ground, etc. by the decision of court
martial. pursuant to law BY the consolidation OF the
regiment IN question: the reator Is not deprived OF Of
fee To be sure the reator will become a super
numerary Northumberland but that only deprvcs him
Of present command II does not deprive him OF Office
and this Is all that is prohibited by the Constitution
Having arrived at the conclusion that the
Commander in Chief possesses tie power of Consolidating
these regiments and that the exercises OF IL neither
destroys mpairS the constitutional rights OF the
reatOr it is not necessary to consider the other points
presented on the argument. Being convinced of the
power and that its exercises produces breach OF the
Constitution it Is not for this court to inquire
whether the exercise of 1T on this occasion
Is expedient desirable. OF this The Commander
in-Chief is the most suitable judge. II the new
arrangement disapponts or ofend> the rclator. con
signing him to inactivity, separating him from his
worthy associates and companions in arms, l may
regret while / cannot prevent IT, must give the
Commander Chief the credit to believe that by iSS
ing the order complained Of he was actated by senSe
1T public duty and by well-founded belief that the
efficiency of the Fourth Brigade of the First Division
and the welfare of the service generally demanded the
measure
Nothing could be more uDeqnvocal than tho Ian
guaSe here used. 1t will be observed also that the
Consultation then in exactly the same condition
that II IL to-day with reference to removal OF comnl'
stoned officers. Probably will contend that the
court, punish public officer for abuse OF power
but likewise the abuse must bc clearly proved IL Is
an easy matter to sit back and crtcise an officer for
his official acts. General Porter has been harSly
criticised for not ordering court martial to settle the
difficulties In the I'D Regiment IL Is contended that
by that method he would have learned who was at
ault and then he could have dealt with them accord
Ingly This Is sound, sensible view Of the and
under ordinary circumstances would without doubt
have been the proper course to pursue The discipline
In this organization, however, had become 50 notor
0usly bad and by reason Of internal troubles the Hg
nen was so thoroughly ncapacitated for duty that 1t
ia stu a question whether not General Porter has
'nursued the wlsest 1t has also been charged
That politics had great deal 10 do with General Por
ters action II there is any truth in that allegation
the Adjutant Generals action cannot be too heartily
Condemned. Meanwhile the public generally. and the
members the National Guard in particular VIII await
with interest the outcome Of the test case which IT Is
nroposed TO make in the civil courts.
The "a Battery Is preparing for the annual shoot
and picnic at CrcedmO0r on Thanksgiving Day, ana
pleasant time Is expected.