Los Angeles herald., 1892-02-02
THE COLONELS' WAR.
COLONEL RUSSELL KNOCKS OUT
COLONEL SCHREIBER.
Judge Clark Overrules the Commander.
in-Chief-An Old National Guard Fight
Up Again.

Judge Clark of the superior court yes
terday rendered an opinion bearing on
points of military law that will no doubt
be of more than ordinary interest to
members OF the National guard. 1t was
rendered in the case of Col. w. III. ii.
Russell against Colonel Schreiber, and
grows out OF the court-martial proceed
ings in the Seventh Regiment troubles.
In his opinion Judge Clark sets forth
that the cause is laid on writ OF quo
warranto and the action was brought by
direction of the attorney general to try
the title of w. H. H. Russell to the Of
| fee of colonel OF the Seventh Regiment
Of the First brigade. The relator, w.
| H. H. Russell, was duly elected and
commissioned colonel of the above regl-
ment fol four years on May 5, 1888. On
February 7, 1891, at an election held
pursuant to special order of the brig
ade commander, the defendant, VIM. |.
Schreiber was elected colonel of the
regiment and commission issued. The
defendant OF course was elected on the
theory that vacancy existed in said
Office, and whether or not such vacan-
cy existed was the question involved in
the suit.
A court-martial was convened in
April, 1890, and Colonel Russell was
found guilty of certain charges and sem
fenced to be discharged from the service
of the National guard. The code per-
mits that any person so sentenced can
appeal to the commander-in-chief to
~Io ,f VI n
tial. No such an appeal was made, and
in July, 1890, general order was issued
from headquarters disappearing the
findings and ordering that Russell be
released from arrest.
The decision of the court-martial
states that according to the evidence
adduced great carelessness was shown
by Colonel Russell in the discharge of
his duty and in his negligence in at
tendance to the financial affairs of the
regiment, as we'll as want of respect for
his superior officers. A petition from
officers and enlisted men was sent to
headquarters asking that his sentence
be carried into effect. Russell had also
the privilege of making application to
be placed on the retired list, but did not
avail himself of this method Of "lettine
himself down."
In August special order was issued
transferring Company g of the Seventh
regiment to the Ninth regiment. Thi
/. transfer reduced the Seventh regimen
, to a battalion, and as battalion is en-
: titled to no officer higher than lieu
tenant-colonel, the position of the colo
I mel of the transmogrified Seventh wa
. declared vacant. No new commission
! were issued.
On September l, 1890, an order cam
down from militia headquarters trans
: ferring Company G back from the Mint
regiment to the Seventh battalion
:. again putting it on regimental footing
: and ordering an election for colonel.
: Judge Clark opens his batteries by
: shot from three-inch steel rified gul
: by saying, Instead of taking th
8 straight path the commander-il-ch
8 went pirouotting around through tn
Q wood instead of approving the proceed
: ings of the court martial and dismiss
e ing Russell from the service, he sough
! to accomplish this end by indirect means
d The theory evidently was that thu
special order destroyed the regiments
organization of the Seventh regiment
p and ipso facto abolished the Office o
n colonel. am not inclined to the opin
ion that such results would necessaril,
follow, or that commissioned officer
= can SO be removed from office"
K There is no evidence to show that tn
n findings OF the commander-in-c chief wer
!, favorably approved by the board of 10
cation or organization, although the.
Q had by mail signifed their approval o
l. the special order in point issued by tn
commander-in chief. The judge thel
:, says:
o This is not case that would justif
q the imposition OF any fine. The ques
tion whether field officers of the Nation
al guard can be removed from Office il
s the manner here attempted is ques
"a ton of interest and one upon which
:. decision of the supreme court would b.
of value. Findings can be so draw
9 that the question can be expeditiousl
J presented to that tribunal by an appea
upon the judgment roll. Let finding
and judgment be entered in accordanc