New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1912-11-21
TO TEST D|X'S POWERS.
Attorney General Asked TO
Bring Suit to Restore Organ.
MILITARY LAWS AT ISSUE
Counsel for Retired General
Disputes Governors Author
ity to Order Change.

Albany. Nov. 2o.--A supplemental peu-
ton was fled with Attorney General Car
mody to-day by counsel for Major Gen
eral John r. ORyan, OF New York, re-
questing that an action be begun on be-
half of the state to test the legality OF
the recent order of Governor Dix reur-
ing General Organ from active duty.
The petition sets forth various reasons
why such an action should be main
tanned.
Ex-supreme Court Justice GildersleeVe'
Of counsel for General Organ, says:
From a careful study OF the provisions
OF the constitution and our statutes II
seems clear that the Legislature, Dy iIs
various ensctments. INTENDED that tlt
major general should be an integral par
OF the militia division constituting the ma
tional guard of the state and perlna-
nent officer therein. subject TO Suspension
from active service or removal ohly as
provided by Sections 49, 50 and loZ OF the
military law.
The wisdom OF this legislation Is ap-
parent when we observe that II places
the major general outside the DOMAIN OF
politics and leaves him secure IN ms OF
fee as long as he Is eligible ana Iaitn l,aa
TO his duties Should il be held that His
ExcelleEcy the Governor may dlsoanu
and restore at will. in its entirety the
militia division as an organization, ITO
efficiency will be seriously jeopardized.
Justice Gildersleeve contends that the
power to organize the militia OF the state
is legislative and not executive; that the
Governor was without authority 70 create
the Office OF chief OF STAFF, 10 which Ad-
iutant General Verbeck was appointed
that such power is vested only In the
Legislature: that the Governors order
assuming TO disband the divisional or
ganlzation OF the national guard was IL
legal and OF no effect; that the Governor
did not have the power 10 retire General
Organ, and that such action cannot be
supported as disciplinary measure. lie
continues:
The questions presented by the petition
are Of interest TO all the people or the
State OF New York, and especially 10 the
members of the national guard. ~
present there is apparently sharp dii-
ference of opinion between officers hlgh
in authority In the national guard as
10 whether the power of organization UNI
der the constitution and the military law
the Legislature.
II is submitted that the Attorney Gen.
eral Of the state, In the discharge OF
his varied and important duties, has never
had an opportunity of rendering TO the
people OF the state more valuable serv-
Ice than will be accomplished by bring
ing about. through friendly action,
judicial construction or the constitution
and the military law az relating to the
national guard So long az doubt eN-
lists and a difference OF opinion remains
as 10 the Copstitutionality and legality OF
such action as is shown by the petition
10 have been taken, so long the efficiency
Of the national guard will be unfavorably
affected thereby. Since there can be no
disputed question OF fact, II Is respect
fully suggested that a statement OF facts
should be agreed upon and a decision OF
the courts obtained at an early day.
Attorney General Carmody will decide
al an early date whether he will grant
the application.