The San Francisco call., 1895-05-19
NATIONAL GUARD LAWS,
Ignorance of Them Causes
Several Very Peculiar
BlunderS.
DICKINSON STILL IN OFFICE
AS He Is the rigadier-General the
Election of Colonel Bush
Is Illegal.

Inc new military law OF InlS State seems
to be worse than Chinese puzzle to nearly
every member of the National Guard from
Commander-in-Chief Budd down to the
latest recruit in the awkward squad. The
Governors Interpretation of the law has
brought about two complications. The
first, according to the opinion of some
of the local warriors, is that Brigadier-
General John H. Dickinson is still the
commanding officer of the Second Brigade
and that he could, if he chose, hold Office
until the next Legislature meets. The
appointment of Colonel Warfeld is, ac-
cording to this theory, of no value
In case General Dickinson chooses to
hold his Office. The second complication
arose from the Governor S action in calling
the election in the First Regiment. Ac-
cording to the old law an election for
colonel must be called by the brigadier-
general upon application of the proper
person. As General Dickinson contends
that he still holds his Office the election
for colonel will probably be contested.
Colonel Sullivan thinks he could have the
result set aside if he chose, but it is not
probable he will do SO. He is understood to
desire to let the whole matter drop. Gen.
eral Dickinson likewise will not attempt to
Colonel Warfield that he is ready to de-
.- liver up the books, etc., of the Office. Still,
under the law, Warfield, it is held, should
first be confirmed by the Senate before
taking his seat. The law on this case is
not generally understood.
4 lawyer, who has made study of the
militia laws yesterday said:
Section 2003 of the Political Code. in force
prior to the amendment made in 1892, pro-
vides that the National Guard shall be or
ganiZed into six brigades, each commanded
by brigadier-general, and enumerates the
counties which constitute each brigade
By the amendment of 1895 the National
Guard is organized into, three brigades,
each commanded by brigadier-g general,
the limits of each brigade to be fixed by
the communicative Brigadier-gen-
erals and their staff officers deprived of
their Office by reason of the reorganization
hereby provided for are hereby placed on
the retired list with their rank
This section Is not self-operative. Be-
fore there could be three brigades the COM
mander-in-chief must define the limits of
each, and until he did so the former or
ganiZation would continue, for govern
ment never ceases, neither do the offices
and the machinery to enforce that govern
ment.
GAS understood at the present time the
State mas been divided into three brigades.
i
in each OF the districts of the State form
ing one OF the three brigades a brigadier-
general of that brigade, duly appointed
and confirmed by the Senate, and holding
his Office. In the formation of these three
brigades the territory of the State was di-
vlded In such manner that the territory
heretofore constituting other brigades was
consolidated into the three, and therefore
three brigadler-generals were deprived of
their office by reason of the reorganiza-
tlon,' etc. (section 2003), but the brigadier-
generals of the First, Second and Third
brigade were not deprived of their office,
PROVIDED that they complied with the law
political Code, section 1879, which pro-
yldes that 'brigadier generals are ap-
pointed, and must be confirmed by the
Senate; they must be residents of the To-
callties within the brigades for which they
are appointed; they hold their Office until
their successors are appointed and quail
fed
SIT has been suggested that when the
amendments of 1895 took effect the briga.
diers ceased to exist. This is entirely
answered by the proposition that until the
Governor divided the National Guard into
three brigades, as required by the amend
ment, the law was imperative, as the sec.
ton Political Code, section 2003-as
amended in 1895, was not self-operative
When the Governor divided the Guard
into three brigades only those brigadier.
generals and their staffs who were abro-
gated or absorbed went upon the retired
list.
"The power of the Governor to appoint
brlgadiers subsequent to the ad diournment
OF the Legislature of 1895 was and is only
to I'LL vacancies, and vacancies arising only
under section 996 of the Political Code, and
IN none of the ten subdivisions of this
section is it to be found that expiration of
term creates vacancy.
In the case of The People VS.. Bissell 49
California Reports, page All, the law is
Perior Court. In his decision Judge Wal
lace said:
-" 'Bissell held the Office of Inspector OF
Ges Meters under the act of 1853 and his
term OF Office under that statute being four
years, would have expired on the 18th dav
OF November, 1875 Though the act of 1863
was repealed the Office he held was. never
theless, continued by the Political Code.
Ii We assume that he was not continued in
Office under section of the Political Code
as amended March, 1874, because the office
was one filled by appointment, he is, never
theless, authorized by section 879 of the
same code to continue to discharge the
duties of the Office until his successor has
qualified. Parkinson is not his successor.
because his appointment has not received
the consent of the Senate as required bv
section 36S of the Political Code.
$50 long as Bissell, therefore, continues
to discharge the duties of the Office pursu-
ant to the requirements of section 879 Of
the Code, even though his term of office
has expired, there is no vacancy in the
office, in the absolute sense, nor in any
sense which would authorize the Governor
TO I'LL it without the consent of the Senate
hrst had Such a vacancy could only be
caused by the resignation or death of the
ineum bent, or some other event by which
the duties of the Office were nolonger dis
charged at all, in which case, and in order
to prevent failure of the public service,
the Governor might appoint during the
recess of the Senate.
1.-The judgment of the court below is re-
Tersed, and the cause remanded, with di-
Tecrions to render judgment for the de-
lendant pursuant to the specific prayer oi
the answer
The case of Bissell was reaffirmed in the
case cas-! OF the People VS.. Edwards, the local
FIRE commissioner (93 California Reports,
: in February, 1892"
DANERTS DARK DAY.