Bismarck weekly tribune. [volume] (Bismarck, Dakota [N.D.]) 1884-1943, 1891-05-15
IN FAVOR OF BENTLEY.
opinion of the Acknowledgement on the
Bentley-DeVoy Contest,

Opinion of the Attorney eueral on the
Bentley-Devoy Contest.
The encouragement has rendered the
following opinion in the Bentley-DeVoy
Acknowledgement contest case:
May Z, 1891.
Hon A. H. Burke, Governor:
DEAR SIR: By your favor of April 9th,
you ask my opinion as to who is adjutant-
general of this state. and whether or not
you 20 have authority to remove your staff
officers without a court marital. AS l un-
derstand it. VIM. Dewey was appointed
and commissioned adiutant-general by
Governor Miller. His commission reads,
lat the pleasure of the governor"
About the LIST of April last you appointed
and commissioned VIM. A. Bentley as ad-
l~ntant-general, and subsequently notified
VIM. Dewey to that effect and demanded
the records, etc, of his Office, which he re-
fused to deliver to you.
The law under which Mr.. Dewey was
appointed, being the old territorial law,
provides that the adjutant, general shall
Old his office at the pleasure of the gov
ernor, and his commission so reads; hence,
when the governor sees fit to remove him,
he can do SO without a court.martial, and
as you have seen tit to exercise that right,
MIR. Dewey is no longer adjutant- general,
but VIM. A. Bentley is the legal adjutant-
general.
This, in my opinion, disposes of the case,
but it is claimed by Mr.. DeVoy, as l under
that no commissioned officer can be re-
moved except by cOurt-martial, hence he
cannot be removed except by decision of a
cOurt-martlal. l cannot agree with him in
this view. as upon examination, | find that
me constitution provides that all militia
officers snail be elected or appointed as
provided by the legislature. The legisla-
this; hence, the territorial law was in
force and he was appointed under that
law, which provides. as stated, that he
should hold his office at the pleasure of the
governor.
Under the laws and constitution of this
state. you are cOmmander-in-chief of the
naval and military organizations, and as
such have the right and authority to ap-
point as many aids Or staff officers as you
deem necessary. The line officers are
elected by the militia.
in my opinion, under the constitution,
the proper construction to be given to the
section referred to, requiring a court mar
tlal for the removal of militia officers, and
the intention of the trainers OF said court
was that the staff officers of the governor
might be removed by him whenever he
deemed best, butGhe line or elective Off
GERS could only be removed by court mar
tlal. The military laws of the regular
army and common sense support this
view.
The staff officers of a general of the ar
my can be removed by him at will, and
they then return to their former position
in the army.
1t would be absurd to say or hold that a
general of the army would be legally com
PEELED to keep OF his staff officers who
were Objectionable to him. If this is true,
then the same law applies to the governor
or the state, who is commander-in-chief of
the militia, for the laws Of this state and
the territorial laws provide that the rules
M regulations of the U. 5. army prevail
relative to the militia unless otherwise
changed by statute, which has not been
done in this case.
The adjutant general is chief of the gov
errors staff, hence under this view, if cor
rect, he can be removed at the will of the
governor without a court martial.
10 give any other construction to the
law would be to hold that once a staff
officer, always a staff officer. and while the
staff officers might be satisfactory to the
governor who appointed them, they might
be very distastetul to his successors, but
still do nothing which would subject them
TO removal by court martial.
The intention OF the law is that the CON-
mander and his staff shall work in har-
mony for the general good Of the state, and
this could not be done if discord prevailed
between the chief and his staff.
1t is therefore my opinion that both un-
der the territorial and state law, the staff
him at his pleasure and no court martial is
necessary. Respectfully submitted,
C.. A. nj. SPENCER,
Attorney General.