The morning news. [volume] (Savannah, Ga.) 1887-1900, 1894-02-10
Gov. NORTHERN ALL RIGHT.
The Calling Out Of the Troops Within
The Limits Of the Law.


Opinion That the Controller General
Should sivn the Governors Warrant
For the Money to Foot the Bill-Prize
Fighting Against the Laws of the
State.
Atlanta, Co., Feb. 9.-Attorney Cen
eral Terrtll to-day rendered his official
opinion advising Controller General
Wright TO approve the executive war
rants drawn to meet the expenses of call
ing out the militia to prevent the Corbett
and Mitchell prize fight. In the opinion,
which is voluminous with citations of law
and authority for the governors action,
Attorney General Terrill says:
ITO intelligeutly answer your inquiry,
l must assume that the question which
raises the doubt in your mind refers to
the authority of the governor to order the
troops into service to prevent the Corbett-
Mitchell prize fight, ana his consequent
authority to draw from the state treasury
funds sufficient to meet the expense of
transporting the troops when so ordered
out. And assuming this to be the mean
ing of your question, herewith submit
an official opinion on the legal questions
as I understand them to be involved
in your inquiry. Several weeks since In
reply to a request from the governor, |
investigated the question as to whether
prize fighting was crime in this state,
and gave him an official opinion to the
effect that it was crime A review of
this question, and re-examination of the
authorities since the receipt of your re-
quest, confirms me in the opinion which
gave the governor.
AS DEFINED BY THE CODE.
"Our code defines an assault to be an
attempt to commit violent injury upon
the person of another, and a battery as
the unlawful beating Of another Neither
malice nor anger is an essential element
of the offense of assault and battery. A
careful reading and consideration of these
authorities, / think, will convince the
most doubtful that parties who engage in
prize fighting in this state, with or with
out gloves, are guilty Of the Otfense of as
sault and battery. Men usually fight
from passion to avenge an insult or pro-
lection of self or property. The latter
motive is recognized as a moral, as well
as legal right and duty. In all of
these cases there is a motive, which the
law recognizes, even If does not excuse,
and it punishes or justities according to
the injury intended or inflicted, the ma
ture of the cause, which excited
the passion, the character of the
insult or the necessity of self-protection.
A prize fight is fight for a prize; it is
nevertheless a fight, fight which brings
blood and manning and pain and physical
injury. IL may be without malice. 1t Is
not without violence; it may be opened
with handshake, it is ended with a
knock-down for prize. This is for the
belt and purse, or rather the purse and
the belt.
CAN ORDER OUT TROOPS.
"Under this statute the governor may,
in his discretion, order out the troops
whenever he has been informed by the
proper officers that he has reason to ap-
prehend the outbreak Of any riot, rout,
tumult, insurrection, mob or com bination
to oppose tne enforcement'of the laws by
force, or violence, etc, which cannot be
effectually prevented by the ordinary
posse comitatus and peace officers.
1t will be seen from the word
ing of the statute that it is not neces-
sary 20 wait until the actual outbreak
has occurred, nor until the civil officers
have tested their strength, but it is suf-
ficient when the Officer has reason to ap-
prehend an outbreak. This threatened
outbreak may be riot, rout or tumult
1t certainly Is not necessary TO consider
seriously this question further. All the
violence which could be inflicted
on the body of another above the belt by
an arm and body previously trained to
acquire force and strength, is con-
templated, desired and attempted with
the assistance of seconds, bottle holders,
time keepers and referee in the presence
of a multitude, many Of whom have
doubtless money staked on the result of
the contest and some Of whom. at least,
do not observe the quiet and decorum Of
church assemblage.
THE GOVERNORS POWER SUPREME.
"As to whether the circumstances in
the opinion of any other person or official
were sufficient TO justify it, the governor
being clothed with the discretion to order
out the military, his judgment in so do
ing is conclusive, and in the language of
Chief Justice Marshall, he is responsible
alone TO his country and his conscience
When an application is made to
the governor for troops his discretion In
the matter is as Anal and conclusive as in
an application for pardon. To meet legal
claims against the state. for which no ap-
preparation has been specially made, IA
contingent fund is always provided for In
!
the treasurer Is authorized 10 pay out
upon warrants issued by the governor and
cOuntersigned by the controller general.
All other funds In the treasury can be
drawn out only by direct appropriation.
This contingent fund is intended 10 be
used in payment of legal claims against
the state which the legislature could not
foresee. To move troops, when ordered
out by the governor, 1t would be abso-
lutely necessary to furnish transporta-
tion. in order to make their services eff
fective, and a claim for transportation of
these troops. under such circumstances,
just and legal claim against the state.
"1n conclusion will say that the gov
ernor being authorized by law 70 order
out the troops and it having been advis-
able In his Judgment 10 do 80 and the ex-
ercise Of that Judgment being final and
railroad transportation being necessary
10 make the services Of the troops effec-
tive and the cost Of such transportation
being legal claim against the state, and
there being a fund appropriated by law
for the payment Of legal claims against
the state for which no appropriation Is
specially made, IL Is clearly my opinion
that you should countersign the warrant"