The Montgomery advertiser., 1903-01-31
Demurrers In the Higdon Case are Sustained.
 
counssl for Suspended OoloAsl o4 Third 1nfGntry Appssis from [ the Montgomery City Court
 to Supreme Court.

tO OupIvme V0utt.
 In eustaining demurrers and denying the petition of E. L. Hisdon of Birming- ham. suspended Colonel of the src In- fahtry, Alabama National Guard. for . writ of mandamus against Governor Jelks. Judge A. D. Eayre of tho City Court of Montgomery yesterday. held that the courts of Alabama have no control over the Governor as commander-in.chief of the National Guard.
 Jesse F, stailinss. attorney for Colonel Higdon, save notice of an appeal to the Supreme Court.
 The opinion of Judge sayre. denying the writ, was rendered on demurrers to an alternative writ of mAndamus. requiring the Governor to show cause why he should not be compelled to restore Col onel HigdOn to the command Of the 3rd Regiment. The Governors answer was heard Thursday by Judge Sayre and was taken under consideration until 10 o'clock yesterday whom the opinion was handed down.
 , The answer of the Governor was a gen. eral motion to quash the writ and dis miss the rule of alternative mandl mus, In support of which motion twenty de- murrers, aimed chiefly at the authority of the court, were submitted.
 The demurrers were sustained in toto by Judge sayre.
 Opinion of Judge eayre.
 The opinion of Judge Sayre is as fol- lows
 T am of opinion that the demurrer ought to be sustained, and desire ii state. with all possible brevity. the reasons which induce this conclusion.
 induce this conclusion.
 ''The relator. Elijah L.. Higdon. was and Is Colonel of the srd Infantry Regi- ment. of the Alabama National Guard. On January 29. 1eo2, by command of the Governor, reiator and the other field and stan ofi1cers of his regiment were retired from present duty with such regiment On May g. isoe, by command of the Governor, all field and stan officers of the srd Aiabama Regiment were di- rected to resume duty with the regiment. At the same tine relator was directed to assume command of 3rd Infantry Regi- ment' May %, l902. relator wrote to the Governor asidng that hs be given an opportunity In the manner provided by law to defend himself Of any charge of reproach' and be confronted with the charge and his accusers; or that the Gov ernor should plainly and publicly do him the justice to state that he had done and invited nothing worthy of tChis) your cen sure and stated that until one of these things was done, he did not desire to resume command of his regiment. and reeuested that tho order restoring him to command be revoked and annulled.
 Again Relieved from Duty.
 'tJune 17, 1so2. relator was again reliev- Ax.kw a ay1Af fR< <,f the 3rd Infantry. In . letter of June 3o 19oe. relator denies the legality and pro- priety of the Governor's course, and de- mands a court of inquiry. to ascertain whether he had done anything to merit suspension from the exercise of his du- ties, obligations and rights as Colonel of the srd Regiment.
 ''on July ', 1902. the Governor wrote to relator stating that 1t had not been his purpose to express or imply . reflection upon the honor or reputation Of any of the relieved parties and that his &C., tion had been taken in the interest of the military service of this State and declining to convene q court of inquiry because there was nothing to inquire into
 July 1s. reiator requested to be re- stored to his command. July 2s the Gov ernor wrote: I shall not take up the 3rd Regiment matter for the present.
 "Juiy 31. reiator again demanded to be restored to his command. August z the Governor again declined to take up the matter. December 13. reiator again de- manded to be restored to his command. and upon receiving no assurance that he would be, flied this petition.
 As to the Demurrers.
 '"The defendant demure. and the ques- ton is upon his demurrer.
 When, on the application for a pre- liminary writ, my attention was first called to the facts of this case and the relief sought. 1t occurred to me that the case of Tennessee and Coosa Railroad Company vs. Moore. decided by Chief Justice walker in 1s6o, and reported in 36 Alabama, 371, was sufficient authority for the action then taken. In that case the Supreme Court. following Chief Jus ticc Marshall in Marbury vs. Madison, 1, Crouch, 170, declared:
 Tt is not by the ofSice of the person to whom the writ is directed. but the nature of the thing to be done that the propriety or impropriety of issuing mandamus is to be determined.
 "But I now find that the power of a court to cocrce the action of the Chief Executive. in any sort of case, was considered to be questionable.
 Tn the case of Chisholm vs. McGehee. 4l Alabama. 1s7 notwithstanding the de- cision in Tennessee and Coosa Railroad vs. Moore, and in the State ex rel Plack, 64 Alabama. l51. Judge Brickell lntimated similar doubts. There Is q conflict of decision in the various States. Mir. Merrill, in his work on Mandamus, says that the weight of authority is evi- dently in favor of the proposition that the Governor of State may never be controlled by the writ of mandamus And it is pointed out in Section s2 of Merrill on that as a consequence of the fin Marbury vs. Madison. and Kendall vs. United States. t2 Rep. 524, no one has ever sought to obtain a manda- mus against the President of the United States.
 Governor Need Not Obey.
 Nothing is more certain than that no court could ever enforce it's decree against a Governor who chooses not to obey So. without putting the Governor above the law. or assuming that he will disobey the mandate of any court. it yet remains that any decree against him in this cause would be a mere brutum full men.
 Tt is said 1t would be advisory. but am not aware that any advisory powers are given by statute to this court and