The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1891-08-12

under such circumstances and for such causes,
and in such manner rs may be provided by law.
The legislature could not legally pass q law
empowering any one but the governor 10 sscall
forth" the militia The calling forth of the
militia requires the exercise Of great discretion,
and the constitution says that such discre-
ton must be exercised by the governor He
cannot refuse to exercise the power with which
he Is clothed By the constitution. nor can he
delegate the exercise of that power to any one.
Colonel Haines admits that he SCALED forth"
the militia into active service, but that the
governor either authorized him 30 to do or
approved of his action after 1t was done Any
captain or lieutenant OF militia had as much
power to call forth the militia as had Colonel
Haines. The governor could have as legally
delegated that power TO O Lieutenant as he could
TO a general or colonel, and II the governor had
empowered Colonel Haines to "call forth" the
militia, such delegation OF power would be in
palpable violation of the constitution and ut
terly void
This being 90. 1t necessarily follows that the
militia were not legally called forth, and that
the state Is not legally liable to pay them, for
the state can only be bound by q lawful exercise
OF authority by its officers.
Section 81 OF the militia law, relied on by
Colonel Haines, which provides that the COM
mander-in-chief of the militia may order into the
service of the state any OF the militia OF the state
being in palpable violation of section 2, article
~, OF the constitution, 10 imperative and void,
and therefore does not do away with sub
division II, OF section / of the act approved
February D, 1890, relative 70 the duties OF the
governor as contendsd by Colonel Haines. Stat
1891, p. GIT.
If my position 10 correct, It would seem to be
perfect answer to the article OF Colonel Haines
in the Press Times. DO one desires to cast the
least slur upon the militia or its officers. They
were called into active service-legally, as they
supposed-and did their duty, and ought to be
fully compensated for their services, but that In
not the question we are considering The ques-
ton Is this: "Were the militia legally called
into the service of the stateg' II so, the state
must pay them. II not, then the state is not
legally responsible, whatever may be the aspect
of the case viewed from an equitable stand
point
II the sheriffs authority is defed, and he can
not with the deputies allowed him by law main
tain the peace, he may call the posse comitatus,
and he may designate any citizens, and any
number of citizens, of the county TO act and
can call upon any of the military companies in
his county TO act as such posse When he finds
the opposition too powerful for him to cope
with, he is not warranted in calling upon any
militia officer, as such, to aid him.
His duty 10 TO report the facts to the governor,
and if the governor in his discretion thinks it a
proper case he will issue his proclamation call
ing forth such company or companies, regiment
or regiments, as he deems proper, and designate
the proper officers to command them. When
this is done, the militia thus scaled forth" are
in the service of the state, and must be paid by
the state, and this Is the only way the militia
can be legally SCALED forth" to aid the civil
power in maintaining the peace.
GEORGE W. TYLER