The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1891-08-11
AN OPEN LETTER TO ATTORNEY
GENERAL JONES.

SEATTLE, Aug. 10, 1890.
Attorney General Jones-Sir: have not seen
the opinion filed by you, at Olympia. relative to
the militia lately called out, and therefore write
subject to correction, but If you are reported
correctly In the papers, think you are in error
in several important particulars. As 1t seems
to be important to the governor well as to the
people, 10 the layman as well as the lawyer, to
know when, and under what circumstances,
and by whom, the militia of this state may be
called out, and who is to pay them when called
into active service; and as deem your opinion,
as reported. does not give that information, is
my sole apology for addressing you.
You state in your opinion, as reported, that
the commander-in-chief of the state militia
(that is, the goyernor), may call them into the
service OF the state. In this think you are in
error 1t is true that the legislature have so said
in section 81 of the act organizing the militia of
the state statutes $4,000, page 5o2 but this is In
direct violation of article \, section 2, of the
constitution, which provides:
'The governor shall have power to call forth
the militia TO execute the laws of the state, to
suppress instructions and repel invasions"
The governor occupies towards the militia a
dual relation. AS governor, he can "call them
FORTH, that is, call them into the service OF the
state, ard then, "as commandments" he
can himself direct them what to do, or empower
some subordinate officer to command them. He
can no more, as communicative chief, "call them
when called forth. When legally scaled forth"
they are in the service of the state, and must be
paid by the state.
1t is quite important that we should clearly
understand this distinction, that the governor.
only governor, can call forth the militia;
and when SCALED forth" they are under his
commandment as governor, but as commander
in-chief.
No power in the state but the governor az
such, can ''call forth" the militia so as to make
the state responsible for their services, and ths
governor can no more delegate that power to
another than he could delegate the power TO an
point United States senator in case OF va
cancy.
l therefore agree with you that the militia
have never been legally SCALED FORTH" and that
the state cannot be made legally responsible for
their services. cannot agree with you In your
second and third conclusions, as follows:
"Second-That while assisting the sheriff TO
suppress such disorders, they (ths militia) con-
stituted part of the sheriffs posse"
"Third-That expenses incurred thereby must
be met in the same manner and from the same
funds that expenses OF any other part of the
sherifTs posse so engaged are met"
As to your second" proposition you must re.
member that the sheriff alone can call the posse
cosaiiGtas 10 aid him in executing the laws, and
therefore that deputy sheriff has no such
power; that the sheriff can and must select his
own posse; that the militia were SCALED out"
By subordinate military officer ostensibly in
the service OF the state, not By the sheriff nor at
mis- request and when called out did not re-
port 70 him nor act under his orders, nor did he
discharge them How you can come 70 the con-
clusion therefore, that the militia were a part of
HE posse am az loss to comprehend
The posse eouaitdtus is called for by the sheriff
IN sudden emergency, and when the emer-
gency ceases TIE posse no longer acts. They are
not the shsriff's Deputies, aud so far Is know,
are entitled 70 &C pay. They aid the sheriff to
enforce the law a. citizens, nos rs soldiers
or officers, and without compensation, Just
as they would aid q nan to save his
SooGs IL case Of Gre, ou-y in the