The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1891-08-09
SHERIFF'S POSSE.
King County Must Pay Militia
for Recent Service.
ATTORNEY GENERALS OPINION.
xhs Troops He Says, Were Not in the
Service OF the state. but Were
Under Local Authorities.


Hon. r. @. o'Brien, olympia-Dear Sir: am
IN receipt Of your communication containing
resolution OF the military board, submitting for
my official opinion the question whether the ex-
penses incurred by tie militia engaged In the
suppression OF certain riots at Gilman and at
other points in that county must be paid by the
state or by the county OF King. The history OF
this incident so far 1t IL necessary for the de-
termination OF this question, appears fully from
the communications which passed between his
excellency, the governor, and Colonel J. G.
Haines, commanding the First regiment, Ma
tional Guard. These dispatches are as follows:
SEATTLE, June "a, 1891
Governor e. p. Ferry, Olympia Hotel: / am in
formed that riot has occurred at Gilman and
the destruction OF mine property 10 threatened
now By armed men. The sheriff Is at Walla
Walla. His deputy here declines TO act for
want OF authority. The owners of the mine
have appealed TO me for protection. have re-
fused until properly ordered If the sheriff re-
quests me TO send troops TO use as posse can
do IL without orders from your See section $50
OF the code. and Ella VS.. smith, Gray, III.
am informed the situation Ia critical and that
seton 10 taken. COLONEL J. G. NAMES.
OLYMPIA, June IS, 1891.
Colonel j. @. Hdfn>s, Commanding First Regt-
In section SEQ OF the code OF Washington calls for
an armed force 10 suppress riot, or to enforce
the execution of the laws at Gilman, in King
county, you will Immediately repair to that
place with one or more companies OF the n q.
W., as you may deem advisable, and render such
aid to the civil authorities may be necessary.
ELISHA +. FERgY, Governor.
SEATTLE, Wash, June 81 1891.
Elisha r. Ferry: i have received q request
from deputy sheriff TO send company OF the
National Guard to Franklin Immediately, he
expecting a riot at any moment. Several per-
sons have been shot. have ordered a company
there and will accompany them. ! have no
specified orders from You except for Gilman. IL
my action Ii not approved, wire me at Franklin.
J. G. HAIsEs.
OLYMPIA, July 2, 1891.
Colonel ). @. Hdines, Franklin: The civil au-
thorities should disarm all unauthorized armed
bodies at Franklin, Gilman and elsewhere In
King county where there is danger OF riot or
breach of the peace. You will render all neees-
sary assistance 10 the civil authorities in this
direction. After disarmament the sheriff and
his deputies will probably be able 70 preserve
the peace, and the presence OF the military will
no longer be required. request for voluntary
disarmament by all parties should be made be-
lore executive measures are taken.
ELISHA Y. FERRY Governor.
GILMAN, July 2, 1891.
Hon Elisha p Ferry: Does your order of today
relative to dsarming armed bodies allow me
70 use, III necessary for its enforcement without
breach OF the peace, any companies Of this regi-
ment other than those now in the field?
J. C. HAINEs.
OLYMFgA, July 2, 1891.
Colonel J. O. Hdines. franklin: You use
all of the First regiment for the purposes indi-
Gated In my dispatch of this morning, if neces-
sary. ELISHA +. FERRY, Governor.
The governor of the state is commander-in-
chief of the militia of the state (sectIon s,
article of the constitution and his powers and
duties relating 20 ordering out the military force
for the suppression OF disorder are found In the
twelfth subdivision of section /, page 62S, laws
OF 1S59-90, which Ia as follows:
He may control or suppress riots or unlawful
strikes or any unlawful assembly of ten or more
parsons, when By such riot unlawful strike or
70 commit felony or incite others TO commit
such crime, or any person or persons are in i'm
minent danger Of losing either life or property.
But before taking any such action the gov
;rnor shall first notify and request the local
aethorities to suppress such riot, unlawful
fuse, neglect or are unable TO do so, he shall
issue his proclamation commanding such per-
sons 20 disperse and refrain from taking part in
or encouraging or melting such riot unlawful
strike or unlawful assembly, and II thereafter
such imminent danger still continues, the gov
ernor shall proceed to suppress the same by
sailing into action ell the force necessary to ac-
complish that purpose.
The provisions Of the law, so far as provision
is made, for payment OF the expenses of the
National Guard of wsshA (gton by the state or
out OF the funds OF the state, are found In Sec
tons 26. 81 and AZ of the act approved March a,
1890, providing for the organization of the state
militia. (See laws OF lSs9-90, page 502l. These
sections provide as follows:
Sec. e. The military forces of this state, when
In actual service OF the state in time of war, in
surrection, invasion or imminent danger there
OF, shall, during their time of service, be en-
titled TO the same pay, rations and allowance for
clothing as are at the time of the said service
allowed by Law in the army OF the United states.
When ordered into the service of the state in
case OF forcible obstruction to the execution of
the laws, or reasonable apprehension thereof or
10 prevent breaches or disturbances of the peace
or 70 protect the property of the state or It's cit
Gems, except in case OF war or invasion,
and when in attendance at the snnuai
muster or camp of instruction, or at
the stated parades under this act, the
National Guard of Washington shall
receive the following compensation per diem:
Each commissioned officer, 81: each non-com-
mlssioned officer, musician and private, 81 50:
and, In addition thereto, except at such stated
parades, each officer and enlisted man shall be
entitled TO one ration per day, and every officer
aud enlisted man OF cavalry and every mounted
officer OF infantry shall be entitled TO forage OF
one horse.
sec. 81. The commsnderin-chief shall have
power, in case OF Invasion, Instruction or
breaches OF the peace. or imminent danger
thereof. to order into the service OF the stste
any OF the companies. battalions, regiments or
brigades OF the National Guard or O. the militia
force OF the state, that he may deem proper and
under the command OF such officers as he shall
designate
Sec Il. The revenue raised unds- ,hs nro.
visions OF this act shall be paid into the state
treasury and be converted into q special mill
tary iund, from which special fund only shall
be paid any oil the expenses authorized hy this
act, and so much thereof as may be necessary is
hereby appropriated to carry out the provisions
W LIS ~ "P"n NoucnsFs approved as herein
prescribed.
II win be observed by an examination Of the
twelfth subdivision Of section l, page 62s that
the governor is not authorized to order out the
militia for the suppression OF disorder as a
military force on behalf OF the state until he
has first notified and requested the al authori
ties TO suppress the riot, etc, aud second in
case they are unable to do so, he shall issue mis-
proclamation commanding persons unlawfully
assembled TO dispense. Neither of these pre-
requisites had been complied with in the present
case, and am of the opinion that a point had
not been reached at which the governor would
be authorized, as commander-in-chief of ths
militia OF the state, to order 1t out in the service
:" hs state as military orgsni-
zanon. II cannot lie presumed that
the governor intended 20 do so in
violation OF the plain provisions OF the law.
on TIE contrary, the language of the DISPATCHES
addressed 70 the colonel commanding that nor.
Won oil the militia engaged in suppression of the
dasorder N King county clearly indicates thar
he did not intend either TO order the militia ont
as military organization in the service Of the
state, or authorize any of the subordinate
ofacers 70 do. The FIRST dispatch sent by him
IN reply TO the communication of Colonel
names clearly indicates that he did not at that
tine consider that any part of the militia capfd
be called into service except in pursuance Of The
provisions Of section s5o Of the code That acc.
ton provides as follows:
If three or more persons shall be unlavr,,,rv
rietousiy or tumulsogsly assembled, any 3nst5cs
OF the peace, sheriff, deputy sheriff corIs,ahla
OF hiArsha1 OF city, or mayor or alderman
taeseoi, shAh so among the persons 81 assem-
bed. az as near % them IS possible. Aat, shnu
command them in the name OF the Territory ~
Washington 20 Immediately disperse n 49,
persons 80 assembled do not lmmeil-