The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1902-05-03
SMITH WINS
Court Says Cavalry and
Artillery Captains Are
Not Field Officers.
EFFECT OF DECISION
Governor Now Will Not Sign
the Haines Brigadier-
General Act.
EFFECT OF DECISION
Special TO 1.-THE Jersey city News .


Especial TO 1.-THE Jersey City News.''l
TRENTON, May 8, l902.-Colorel Robert
G. Smith, of the Fourth Regiment Jersey
City. won at least a partial victory yes
terday by a decision OF the Court of Err
rors and Appeals that captains of troops
of cavalry and batteries of artillery are
not entitled to vote in the election of a
Brigadier-G General.
The court was unanimous in its deci-
sion, which was rendered in the proceed
ings instituted by Colonel Smith to pre-
vent Captain Walter B. Adams Battery
A. field artillery of Orange, and Captain
R. Wayne Parker, first troop cavalry of
Newark from participating in the elec-
tion of a commanding officer of the first
brigade.
Both officers were included in the call
for the election issued by General Wanser
as division commander, the call being
based upon the act of 1900. reorganizing
the National Guard, in which it is speci-
fically provided that troop and battery
commanders shall have voice in the
election of Brisadiers.
Colonel Smith and Colonel Edward A.
Campbell, of the First Regiment New
ark, were both candidates for the posit-
ion formerly held by General Wanser and
it was generally assumed that the votes
of the two Essex County officers men
toned would go to Colonel Campbell and
thereby insure his election.
Before the election was held Colonel
Smith carried the case to the Supreme
Court claiming that under the constitu-
tion only field officers were entitled to a
voice in the election.
The case was not argued before the
Supreme Court. but pro forma judgment
in favor of Colonel Smith was entered in
order that the decision of the higher
court might be obtained with delay
Meanwhile the election was enjoined.
In the argument of the case before the
Court Of Errors, counsel for General
wanser and Colonel Campbell withdrew a
contention made at preliminary hearing
that troop and battery commanders were
not field officers. but insisted that the
term militia" as used in the constitution
was not applicable to the National Guard
in the accepted sense, but included all
men between the prescribed ages capable
of doing military service, and more COM
monty known as the reserve militia.
Counsel for Colonel Smith eontended
that the National Guard was simply the
armed or organized militia of the State
and that the constitutional provision re-
lative to the election of brigadiers had
reference to this. It was argued in this
connection that if the constitution did not
refer to this portion Of the militia 1t
could have no significance. and that if
the National Guard was not the ORGAN
lied militia there could be no authority
for arming it under the Federal statutes.
This is understood to have been the
view accepted by the Court whose deci-
sion was announced by the Chancellor,
who will prepare the opinion. The full
scope of the opinion and the ground
taken by the court cannot, however be
stated definitely until the fling of the
opinion 1t will nevertheless declare un-
constitutional the act of 1900 in so far as
it provides for the participation of troop
and battery commanders in the election.
One effect of the decision will be that
Governor Murphy will not sign the bill
introduced by Senator Haines and de-
signed to prevent any further such mix
ups as exist in the First Brigade. The
Governor has beeen awaiting the decision
OF the Court of Errors before finally dis
posing OIL the Dill. Which QlluST yESteI-
days decision would undoubtedly be un-
constitutional inasmuch as it provides
that captains Of troops and batteries
shall vote for brigadier generals. Another
provision of the bill was to enable the
Governor to appoint a brigadier general
temporarily in the event of failure to
elect for any cause whatsoever
There is some speculation in military
circles as to the outcome of the election.
The order Of the court restraining the
election pending a decision provided that
the election might be adjourned from
time to time. but this injunction will be
dissolved by the decision. If the election
10 held at once it is the general belief
that it will result in the choice Of Colonel
Smith, but should it be deferred the new
Fifth Regiment Of Paterson may be mus
tered in and its ohicers secure a voice in
election.
Should this happen it is not unlikely
that the Newark and Paterson regiments
might effect a combination which would
lessen Colonel's Smiths chances of ulti-
noate Snccess