53 Kan. 201 | Kan. | 1893
The opinion of the court was delivered by
The question for our determinatiou in this case is, whether the governor of the state, as commander in chief of the national guard, comprising the active militia of the state, has the power to disband or muster out a company of the guard before the expiration of the term of its enlistment, except for insubordination, breach of discipline, insuffiiency of service, or other like cause. The constitution ordains that
“The governor shall be commander in chief, and shall have power to call out the militia to execute the laws, to suppress insurrection, and to repel invasion; that the officers of the militia shall be elected or appointed, and commissioned in such manner as may be provided by law; that the legislature shall provide for organizing, equipping and disciplining the militia in such manner as it shall deem expedient not incompatible with the laws of the United States.” (Sections 2, 3, and 4, article 8, of the constitution.)
Chapter 142, Laws of 1885; provides “for the organization, government and compensation of the militia of the state.” (Gen. Stat. of 1889, ¶¶ 3762-3798.) Section 5 declares that “In time of peace, the national guard shall consist of not more that 30 companies of infantry, two companies of cavalry, and one battery of light artillery.” Section 3 provides that “ The governor of the state shall be the commander in chief of the militia, with power to appoint certain military officers;” and § 7 provides that the major general, four brigadier generals, and the adjutant general, appointed by the governor, shall be a military board; and § 8, in prescribing the duties of this board, constitutes it an advisory body to the commander in chief on all the military interests of the state. The board is given authority to prepare and promulgate the necessary provisions, rules and regulations for “the organization, government and compensation of the national guard;” such provisions, rules and regulations to have force when approved
Various other questions were discussed upon the hearing of this case; among others, the alleged unconstitutionality of the provisions of chapter 142, upon the ground that said chapter did not provide for organizing, keeping or disciplining all of the militia, but limited its operation, in times of peace, to 33 companies only. As the conclusion we have reached permits the disbandment of any company of the national guard by the governor, as commander in chief of the militia, and affirms the judgment, it is unnecessary to pass upon the other questions presented. If the statute, with the interpretation given to it by this court, is unwise or dangerous in any of its provisions, the legislature, which will convene in a few months, may, within the terms of the constitution, modify, amend or repeal it or any part thereof, as seems best to it, as the representative of all the people. As a general rule, the constitutionality of a whole statute ought not be passed upon,