The Dickinson press., 1891-05-09
IN FAVOR OF BENTLEY
Opinion Of the Acknowledgement on Il
Bentley-Deyov Contest.

Opinion OF the Acknowledgement on the
Bentley-Devoy Contest.
The attorney-general has rendered the
following opinion In the Bentley.Devoy
Acknowledgement contest case:
May z, 1891.
Hon A. III. Burke, Governor:
DEAR SIR: BY our favor of April 9th,
you ask my opinion as to who is adjutant-
general of this state, and whether or not
you have authority to remove our staff
officers without a cOurt-martial. As l un-
derstand it. VIM. Dewey was appointed
and commissioned adjutant-general by
Governor Miller. His commission reads,
About the ist Of April last You appointed
and commissioned VIM. A. Bentley as ad-
iutant-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
hold 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,
but VIM. A. Bentley is the legal adjutant-
general.
This, in my opinion, disposes OF the case,
but il is claimed by Mr.. Dewey, as Iunder..
stand, that as the constitution provides
that no commissioned officer can be re-
cannot be removed except by decision of a
court-martial. l cannot agree with him in
this view. as upon examination, 1 find that
the constitution provides that all militia
officers shall be elected or appointed as
provided by the legislature. The legisla-
ture of 1890 made no provision relative to
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
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.
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, but the line or elective Off
GERS could only be removed by court mar
tial. The military laws of the regular
army dllu CONlluOu ScuSo support IulS
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 on his staff officers who
We're Objectionable to him. If this is true,
then the same law applies to the governor
OF the state, who is commander-in-chief of
the militia, for the laws of this state and
the territorial laws provide that the rules
and regulate ions of the U. s. 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
ernor's staff, hence under this view, if cor
rect, lie can be removed at the will of the
governor without a court martial.
To give any other construction to the
officer, always a staff officer, and while the
staff officers might be satisfactory to the
governor who appointed them, they might
be very distasteful 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 isltherefore my opinion that both un-
der the territorial and state law, the staff
officers of the governor a be removed by
him at his pleasure and no court martial is
necessary. Respectfully submitted,
c. A. M. SPENCER,
Attorney General.