The Montgomery advertiser., 1903-01-31
COUR RTS CANNOT 'CONIROL
 GOVERNOR, SAYS JUDGE SAYRE

1 Company vs. Moore is binding on the courts of this State. Relator's proposi- ton is that the Governor in doing the act mentioned, was acting Ministerially. "By the Constitution, the Governor is made the andcf-in-Chief of the mili- tary fcrcte of the State. The statutes do not purport to further denne or limit his authority. Now, am not able at this time to defne. by reference to history, military law, or usage, the functions and powers of ommander-in-chief. but I turn instlnctively away from the. propo- s.tion that they are ministerial only. Ministerial duties are dofined and impos- cd by law, and in order to be controlled by the courts they must be of such a nature that they might as well have been imposed upon somebody else. Tn Gases of Peril. "The mere ministerial officer judges neither the practicability. nor the pro- priety. nor the wisdom of what he does. Hawkins vs. Governor, 8 Alabama. Dec. note. D. s62 Was there ever such com! mander-in- n-chfef in the world? And can 1t be said that the Governor of Alabama could not in crisis of disorder or peril to theN State relieve from command of it's troops disobedient. incompetent, or mutinous officer? 1 think q Governor with such disability would cut a sorry figure as commander n-chief. And If the Gov ernor has such authority. the time and manner of it's exercise cannot become
 matters for the detirmination by the courts.
 "I do not propose in this case to in- quire into the propriety of the Governors . conduct.
 The relator contends that he was elected to his office and cannot therefore, l be removed by the Governor. This propo- sition is answered by the consideration that relator has not been removed. He has been relieved from command only The order relieving him deprived him of no property, subjected him to no penalty, { affected no right cogpixable in a civil tribunal.
 'Deprivation of command does not de- prive of ofice and is not civil injury, People ex rel Leo vs. Hill, 12S N. Y. 5os: People ex rel. Smith, 51 App. Div. \. Y. Sup. Ch. 4s4: State OK rel Bend vs. liar rison. S4 Minn. 62s.
 Relator further contends that courts martial are provided by the statutes for the trial of military offenses and this ought to he held to exclude the power or the Governor. There is no warrant for this In the words of the statute Its presence there would seriously cripple the military arm of the State. But aside from that, the Governor has neither tried nor convicted the relator of any offense. He has only relieved him of his com mand.
 There Is one other very good reason why the mandamus ought not to be granted. At one time the Governor gave to the relator the relief he now asks the nodrt to grant. That relief the reiator refused unless 1t should be coupled with an order for court of inquiry or a plain and public statement" by the Gov ernor that relator had done nothing worthy of censure. It Is plain enough for any comprehension that 1t would he an unjustihable. not to say foolish, assump- ton of power for the court to decree that the Governor should apologixe--for that
 is what relator's demand amounts to- or that he should order court of in quiry. And yet the course adopted by relator has given the controversy be- tween him and the Govarnor such color
 that for the court to decree now what
 the relator once refused. except upon conditions would look very much, like an adjudication by the court that the con dttions were properly insisted upon. But mandafnus ts plain and direct remedy. collateral purposes cannot be subserved by 1t. The relator's plight is of his own making.
 For these reasons think the relatnr ie not entitled to the writ of mandamus, and will enter a Judgment sustaining the demurrer to his petition and quashins the rule to show cause.