*1 People Newlon permit repudiate decree to town to that would has availed benefit it which it has consented and of whose part itself, merely has burden- been because the decree to it and its inhabitants. some is, therefore, court the district The reversed and decree to dismiss the action. instructed Sheafor Mr. and Mr. Justice Chief Justice Allen concur. 11,192.
No. Boatright People, ex v. Newlon. rel. 15, 1925. Decided June try office quo the title to the Action in warranto general. Judgment for defendant. Affirmed. Legislative regulation Law.
1. Militia —Officers—Constitutional officers of National Guard does not contravene the tenure of IV, Constitution, 5, providing article section of the military shall be commander-in-chief forces of state. ’21, Regulations Law. S. L. Section c. 2. —Constitutional V, concerning militia, not conflict with section article does Constitution, regulations, military the state in- because specified being act, depend upon stead'of made to regulations. army federal provisions 3. Constitutional Law—Construction. Particular general. govern Constitution Adjutant plenary power, has General. Militia — provisions fixing prohibit are no constitutional which there adjutant general. qualifications and tenure construing statutes, 5. Statutes —Construction—Rules. In general construction; ordinary words should receive words of April, ’25] v. meaning, ordinary given where lan- their
use must be guage given plain, effect. it must *2 adjutant general Adjutant an is 6. Militia — General—Office. ’21, L. S. c. used in section officer as that term is provisions reaches the officeuntil he holds act under age years. 64of Policy. Adjutant Because 7. General —Term Office—Public of long period of has fixed the term office of time for a public years at does not establish two of relating subsequent policy to which must be read into statutes subject. that Legislation. Legislative powers constitution- 8. Constitutional Law— ally constitutionally vested withdrawn. can . Adjutant An order remov 9 executive General —Removal. Militia — adjutant general” ing position does not one from the of “civil “adjutant general.” his affect status City County Error District Court of Judge. Moore, Denver, H. Hon. Julian General, Boatright, Attorney L. Mr. S. Mr. William Naugle, Assistant, Roach, Deputy, Mr. for E. Charles plaintiff in error. Henry Dixon, Hersey, Mr. N. Walter Mr.
Mr. J. for defendant error. J. Dixon Thomas Kelley, W. amicus curiae. Mr. J. banc.
En opinion delivered Burke court. Mr. Justice duly appointed, qualified error was the Defendant acting adjutant of Colorado. The Governor him. Defendant to remove declined to surrender assumed quo brought action in and this warranto was the office Judgment was try thereto. title defendant and brings error. plaintiff general” appointed
Newlon was “colonel and Shoup 28, 1922, Governor order December and the appointment act recited made under the that was general”, He was “as relieved civil position another dur- directed to assume that duties ing vacancy, by ley, Janu- order of Mor dated ary 13, day took office. Newlon said Governor claims his tenure under continues the statute until sixty-four years age. assignments error, gen- sufficient, so while give understanding plaintiff’s
eral as to us no definite contentions, sepa- distinctly and his brief does not rately gather both, however, state them. We (1) Assuming are: officers”, included in the “all as used in the Act of term *3 1921, then said Act is invalid of because violation sec- 5, IV, V, tion 17, article and section article the Con- of (2) officers”, stitution. The words “all as used 1921, general, act of do not include the whose by act, tenure is therefore fixed and whose term expires appointing therefore that of the Governor (3) public state, him. policy gathered The repeated legislative fixing adjutant general’s acts term years, at two interpreting should be invoked the act of 1921, plaintiff’s and so invoked demonstrates that conten- 2No. is correct. governor “The shall be commander-in-chief the mili of * * *." tary IV, state, forces of the Sec. 5 art. Colo rado Constitution. organization, equipment discipline
“The of the militia practicable, nearly shall conform as as government for the of the armies of United States.” 2, XVII, Sec. art. Colorado Constitution. governor appoint general,
“The shall all field and staff company officers them. and commission Each elect shall officers, gover- its own be who shall commissioned * * nor; 3, XVII, art. Sec. Colorado Constitu- tion. * * Sec. bill, except by passed law
“No shall 17, V, Constitution. Colorado art. 1915, 1909, fixed 1897, each of
The acts years. two at office of the term of the office” and as “his position The refer to first four office.” language of “whose term last uses the 1. That “Section 1921 reads: part A act of organ- of Commander-in-Chief shall be service of the into the called except ized militia when Adjutant appoint Gen- States, and he shall United Staff; Provided, That eral Chief who shall be or line of- Adjutant a field served as shall have General Army or National Guard ficer in the United States Major. attained the rank general, Adjutant and all field
Section 2. General appointed the Governor. and staff officers shall be Adjutant appointed shall be as and all officers General Regulations. provided for in National Guard including Pay, officer, Inspection, officers No staff appointed Departments and Medical since the Subsistence day May, shall continue to serve an of- 25th present ficer this State under his of the National previous military commission he shall have had ex- unless previous perience to the date said commission. appointed previ- shall
All hereafter have had officers military experience positions hold their ous shall sixty-four years, have reached shall unless prior resignation, to that time reason of retired dis- *4 ability, or be determined a for cause to court martial efficiency board, legally purpose, or convened for that and among officers shall be ap- that vacancies said filled pointment from or members of the officers National Guard of Colorado. State organized designated 4. The militia
Section shall be the National Guard’. Colorado ‘Colorado National the Staff the shall consist of Commander-in- Guard departments corps organiza- Chief, and and staff and such Department prescribed for the shall the War tions as be * * *. National Guard. pro- of conflict between Section 56. In case Army Regulations, Depart- of this Act visions and War Regulations, force ment or National now in Orders Guard promulgated by Department, or hereafter War such Regulations Department Orders or War and National conflicting Regulations paramount shall provisions Chap. hereof shall be of no force effect.” or p, 625, L. 1921. duty
In addition thereto the act makes pass upon petitions to receive and required organizations, appoint enlistment of listing an en- service; officer to receive them into furnish notify appointment; contracts; enlistment officers of their countersign oaths; receive and file their and seal their resignations discharges commissions; receive and issue approval necessary employ ; of the Governor military departments; office force for all others, act with four including military Governor, as the to board military regulations; prescribe pay all receive the of an Army grade”; officer “of the States United of like “issue against charges for the arrest of warrants offenders whom preferred”; many things, do have been lating other all re- military department. legislative regu- It is difficult to understand how the tenure officersof lation of the National Guard can IV, contravene section Certainly article of the Constitution. power duty it does not interfere with to be commander-in-chief. As such out, directs, militia, and disbands calls all however statutory military under which he must obey create or abolish. He but cannot “commands” guard law creates which the and commits to his care. is no more less command effective That because of his discharge inability an than because discharge inability corporal. his While in office prove obey orders and efficient. all must Otherwise *5 April, ’25] v. Newlon emergency re- suspended in an temporarily
may hearing, the whim chargés not as by moved mili- dictate, may the law but as commander-in-chief President of regulations prescribe. Even the tary hearing, charges may not, without such States United armies. He is in the federal officer the humblest remove is reason thereof nor no less commander-in-chief of the National any less commander-in-chief reason. for the same 56, provisions supra, and similar It is said that section 17, V, of 1921, article conflict with section the act of military regulations, the state the Constitution because enacted, being duly made specified in are a bill instead r'egulations army are thus depend upon the federal beyond con- to variable state enacted reference rules way mandate section in no other could the trol. But legislature. XVII, That article be carried out particular said sec- of the Constitution is whereas section Y, general, and law is well settled article govern general. particular provisions The act of constitutional. legislature plenary power, The has and there no fixing prohibitions prevent constitutional which adjutant general. qualifications and tenure of the is, question “Did the Act of 1921 fix then such tenure?” (2) section of the act of 1921 fixed the Whether general depends upon tenure of the the intent gathered, possible, if to be act para section itself. Said is divided into three distinct graphs. The words to be construed are found at be ginning paragraph the third and are: “All officers * * * positions shall hold their shall have sixty-four years.” reached the what? Officers of course, act, by The National Guard of because the its body, only. title and deals the National Guard applied first rules to be are that words should re Cyc. construction, (36 1118) ; ceive a that words given ordinary meaning of common use must be their *6 People (36 Cyc. 1114); language plain it that where the is must given (36 Cyc. 1107). quoted effect The words above general, they use, language are of common and is plain. Standing meaning would alone no doubt their person ordinary intelligence occur to a and education legal diligently unless skilled in technicalities search- ing a flaw. adjutant general
But is said the is not an officer designated person perform but a to certain duties. All subject beginning the statutes on the from the refer to position office, as an and the tenure of the incumbent “adjutant” as “term of office.” defines as “an Webster officer,” general” “adjutant officer,” principal as “the staff aggregation and “staff” as “the of staff officers.” One discharging officers, chief of a duties of staff having military title, tenure, reason thereof a distinctive compensation, likely quite an officer other than chieftancy. the officer to he was when called that But suppose contrary. let us for a moment This defend- certainly discharging ant is most colonel a the duties of position assigned duly by proper to which he has been authority, position “Adjutant and that is called General.” unqualifiedly questioned If provision so within the (this Colonel) of the Act. “All officers” “shall hold their positions (the adjutant position general) until shall sixty-four years.” This, have reached the be it noted, “position” is the first time the word occurs in the act. principal basis of the contention that “all officers” adjutant general does include is that if it did general phrase adjutant general, “the all field and officers”, paragraph staff in the first of section would general have read “the and all other officers,” phrase field and staff and the “the general officers,” immediately following, and all would have officers”; read “the and all other and that having previously adjutant general apart mentioned the thereby “all officers” he was excluded when “all of- paragraph ficers” were the third mentioned in of the sec- v. Newlon holding involve a construction would tion. Such present mem- qualifications (i. e. legislative as care years sixty-four Guard), (i. e. bership tenure discharge mar- security court (i. age), and e. officers, efficiency board), to minor exercised as tial or chief; federal not exercised was scrupulously tenure as to the so followed officers, in other and as to other contrary consti- were, by implication and particulars, All direction, departed his tenure. from as to tutional *7 ignoring known rule the well this arises from confusion any requires ref- that if the “last antecedent” which of necessary interpret prior language “all of- is to erence to go paragraph preceding ficers” that the reference will to only language would “staff This and there the is officer.” language reading disputed “all officers the result in staff they the positions reached hold their have shall Worrick, years.” Cyc. Cushing sixty-four 1123. of 36 Gray (Mass.) 382. 9 meaning
(3) escape plain of from the act Next an sought interpretation is resort a fancied rule to policy. public It is that from furnished said because beginning has fixed term recognized years at two that term must be public subsequent policy and as the state read into fallacy argument assump- in statutes. The lies fixing repeated years pre- tion that the term at two acts legislative suppose power fix conviction of lack of any any other term or a conviction that other term would be public assumption If detrimental service. were founded, Igislative repeated well and identical action would legislative legislative discretion, prove powers absence of succeeding assemblies, atrophied, unused would become following path, an a beaten would be able to create superior unwritten Constitution to our written one and impose upon bonds their successors more inflexible than Legislative powers and Persians. the laws of the Medes v. constitutionally constitutionally with- vested can e., thing, repeated prove i. drawn. one These acts but they con- these had successive assemblies believed adjutant gen- authority term stitutional to fix the public policy eral as deemed advisable. The rule plaintiff requires which the statute differs invokes language meaning predecessors apparent its from correctly must, may ascertaining object we its that we it, interpret look for the defects in the former law remedy Cyc. provided by It one. the new were, perfectly supposed polit- apparent that the defects establishment, military ical lack of har- control of the insecurity mony regulations, between federal and state officers; military pro- of the tenure of and the remedies were, merit, efficiency vided the substitution of and service control, harmonizing political for of state and federal officers, regulations, security military tenure of XVII, conformity all in to the command of section art. of our Constitution. judgment
But the correct another reason. Gover- Morley nor did not remove defendant or office position, upon any such, devolve another the duties position which held. defendant The office or mentioned *8 adjutant general” order is “civil Governor’s position. there no such or If office this were a mere point clearly purely misnomer the would be technical. It appears, however, exactly order meant what said, upon theory and was based there was such position adjutant general”, an office or as separate “civil apart position “adjutant gen- the office or eral”, and that it was the intention of the Governor to adjutant deal former. term gen- with the “civil eral” cannot found our Constitution or statute. It solely regulations is derived from the National (military Department bureau) War the United States, regulations sections 146 and 147. Such can not, course, make or unmake state officers. The term purely as used one distinguish there of convenience to v. adjutant general, complied with the a state who has not regulations recognized officially federal and not been Department, former the War from one who has. The general” adjutant is there denominated a “civil and the military adjutant general. latter a But defendant here complied had and had with the federal been recognized, Colorado, there was not in at the time of so removal, officer, position, the order of office such or general” as “civil fed- even in the sense of the regulations. eral giving advisability
We do not discuss the the Governor arbitrary control of the tenure of the depriving it, or the him wisdom as this court has no concern therewith. given judgment
For all the reasons is affirmed. having Campbell, argu- Mr. Justice heard the oral ment, participate. does not
Mr. Chief Justice Allen and Mr. Adams Justice dissent. dissenting.
Mr. Chief Allen, This is an ac- Justice office, brought usurpation tion for the of an under section 1921, by people upon 321 of the Code of the rela- General, Attorney tion of to test the title of de- general. fendant below to the office of There judgment defendant, brings was a and the relator upon here writ cause of error. appointed adjutant general
The defendant was in 1922 duly quali- then in office. The defendant office, lawfully exercising was still fied for 13, 1925, January governor or about same on when the removed, attempted remove, office, him from the summarily. January 16, action This was commenced appointment by chap-
The defendant’s was authorized *9 ter Session Laws of 1921. The first two sections of that act as follows: Commander- shall be 1. That
“Section into except called organized when militia in-Chief of appoint States, he shall the United the service Provided, Staff; Chief of shall Adjutant who be General field aas Adjutant have served shall General That Army or National Guard officer in the United or line States Major. the rank of and attained general field Adjutant and all 2. The General “Section by appointed be Governor. and staff officers shall appointed as Adjutant shall and all officers General Regulations. provided for in National Guard Pay, Inspection, officer, including officers “No staff Departments, appointed since and Medical Subsistence day of- May, as an 25th continue to serve shall present his ficer of the National of this State under Guard military previous have had commission unless shall experience previous to of said commission. the date appointed previ-
“All officers hereafter shall have had military experience positions ous hold their un- and shall they age sixty-four years, til have reached the shall resignation, prior unless retired to that time reason of disability, or for cause determined court mar- to be board, efficiency legally purpose, tial or convened for that among and that officers vacancies said shall be filled appointment or members from officers of the National State Colorado.”
The defendant inasmuch as he is contends still age sixty-four years, under the he is entitled to re- in, hold, main the office under that clause in section provides quoted, which above “all officers hereafter ** * appointed positions shall hold their * * sixty-four years, shall reached have *.” question to be determined is whether section 2 is governs, case; applicable, words, this other whether is one of the “officers” to, referred contemplated, quoted. last clause above clause, If we this were consider disassociated parts Act, from its context and other the conclu- *10 People 527 v. Newlon “of- adjutant general the the is one of would be that sion posi- to, and, therefore, entitled hold his ficers” referred to sixty-four the he “shall have reached years.” to be phrases of a statute are But words used, sense, but with not in abstract understood as regard context, in that best due sense which Cyc. parts of the 36 harmonizes all other statute. 1131. early part quoted, the
In the of section hereinbefore gen- legislature expression: the twice uses “The If eral all officers.” it had intended that the general “officers”, apt is included in the word most expression would have been: “The legislature evidently
all other officers.” Since the used the word in 2 in- “officers” twice section in a sense not cluding adjutant general, presumed it is to be time, section, when it used the word the next in the same used it in the same sense. phrase “Where the same word or is used different in statute, parts of presumed a it will be in be used throughout.” Cyc. same sense 36 used the term “officers” in a sense not
including Adjutant legislating General because it was chiefly with Guard, reference to the National and the office of is not an office in the National Guard. concluding
It is part seen from the of section here- quoted, among inbefore that vacancies said “officers” by appointment shall be filled from officers or members too, National legisla- This Guard. shows that did not ture intend the comprehend word “officers” to adjutant general, being merely because an officer or mem- ber qualify National Guard would him for the adjutant general. provided office of It is in section 1 of act he shall be one who “shall have served as a field or Army line officer the United States or National Major.” rank attained pur- “For the determining pose meaning, although not the valid- may considerations statute, had to
ity, recourse of a legis- policy policy, public the established and to legislation.” course of lature disclosed Cyc. 1111. militia, concerning force all
From the statutes prior the act of the enactment of state in this *11 always legislature has policy appears of the it that the adjutant general practically make term of the the been him, governor appointing the with that of coterminous governor adjutant appoint an could have or that each so general policy Public result like- his would of own choice. wise. court, 430, Ingalls, the 21 Ariz. 189 Pac.
In State adjutant general, “From speaking of of said: the office duty office, the intimate asso- the nature and of the the with the commander-in-chief of ciation officer state, every and considera- National Guard of the reason necessity emphasize would Gov- seem having power for ernor at time to choose such of- ability person fidelity he have fice a in whose could and, confidence; deprived implicit before he should right, power explicit that a intention clear appear.” made to to do so should be below, It is stated in the brief defendant defendant here, 1921, being the act of in error that our National Act, in was enacted obedience to the found mandate Guard Constitution, provid- in 17 of our section article state ** * ing “organization that of the militia shall conform, regulations nearly practicable, as to the government the armies of the United States.” We dispute do not that statement. But it avails defendant nothing, statute, regulation federal because no and no Department, affects the the War tenure of the office of the Arizona, of a state. The state of like others, provision, has a similar or identical constitutional Military Code, yet its revised when its in provided “shall it hold office dur- v. Newlón Ariz., ing pleasure L. the will and of the Governor.” S. 1921, p. 318. Regulations
Section 293 of the National issued Guard government, Department War national 1922, provides officers of “the commissions of * * * they National reach vacated when age years.” of 64 This does not refer to the office regu- adjutant general of a state. sections of the Other plain, disputed. lations make this and this situation is not agree with counsel for We defendant in error that Assembly regu- General intend to did conform to federal Act, provided lations and to the National Defense when (meaning 2 of act section of 1921 that “all officers * * * Guard) all officers of the National shall hold positions their shall have reached sixty-four years.” legislature was, clause, in this deal- ing only with officers of the National Guard and not the general, just as the federal refer to such officers and “of state” *12 terminating when fix the tenure office as at age years. 64 The do not fix tenure whatever for the office of state, of a but in 146 section leave this to the “laws of the state.” indicated,
For reasons above 2 section act 1921, while it the tenure fixes of officers of the National Guard, not fix does the tenure adjutant of the office of general; words, in other the term “all officers” as used adjutant general. in said section excludes the The trial holding contrary. in court erred to the expressly repeals act The of 1921 former statutes which adjutant general. fixed the tenure of the office of No fixed, being term is situation, now and the officer pleasure appointing at power. holds Cyc. 29 73; Cyc. and cases cited in note 29 In sec- Throop Officers, on Public says: author by appointment, an office is filled “Where and a definite by a term of office is not fixed constitutional' statutory or provision, pleasure at the the office held of the appoint- v. Newlon work, it
ing same power.” And section 354 of in cases, may make appointing power, in such said the charges. without removal governor to remove the defendant authorized
The was cause, general, with- or adjutant without his office efficiency board. martial of a court out the intervention judgment for defendant. render It therefore error to was reversed, re- the cause judgment should be plaintiff judgment to enter with directions manded complaint. according prayer of the relator’s dissenting. disagree I Mr. Adams Justice majority for these reasons: view of the court upon hypothesis. opinion a false
1. The is based purport did not remove executive order the Governor opinion, respondent, but as stated in the of the state of Colo- be “relieved as civil very matters. These are two different Orders rado.” removing commands, relieving without from their officers service, army are life and from the common them day every in the of almost occurrence United States matters Although thought judicial army, interference. without by of his be relieved command commander-in-chief, he still his commission as retains general’s department of the Na- colonel until he shall have reached the tional of Colorado sixty-four years. The distinction between removal from the service relief from a command is Executive mili- marked. tary authorities, courts, individuals, have like even nothing powers rights certain inherent and there is against question. I statute one should think *13 strange it if there were. “Militia,” by Major prepared
Under an article Gen- Dick, eral Charles of the Ohio National Guard and United Lambert, Ohio, Major George Senator from States C. Guard, 489, 501, Cyc. Minnesota National in 27 is said: v. organized
“The command of the militia in the several upon governor states devolves officers commis- by governor may sioned him. The the exercise in discretion vested in him relieve an officer from command.” Citing 115, 60; People v. Jelks, v. State 138 Ala. 35 So. Roe, App. 494, Suppl. Div. 64 N. Y. 642. Jelks, supra,
In v. State the act of the it was held governor relieving of a state in an officer of the National command, Guard of his did not a removal of constitute (1878) the officer from his office within U. S. Rev. Stat. Comp. (1901),
sec. p. providing U. S. Stats. military that no officer in the or naval shall in time service peace service, except be dismissed from in on and pursuance of a sentence of a court martial. People Roe,
In supra, it was held that where an order commanding relieving guard, officer national regiment command, an officer approved of a from his governor, application and his for a reinstatement governor, commanding is denied officer had authority, no approval without the sanction and governor, to restore that relieved officer to his command.
The court complains said: “The officer who is still an before, officer as and the fact that his command is taken away military is the superior, result of a order of his appeal must seek Deprivation his redress in an to him. injury.” of command is not a civil ignores The decision of court contrary this and is following page 628, words in section Laws 1921: “* * * Provided, That the commission of each officer Colorado,
of the National Guard of shall continue and re- subject main in force and be same limitations as to tenure of office as the commissions of officers in the * * Army: United States *.” provision following
The above is in a section parts quoted majority opinion of the statute of the court. together, The statute should be construed separately parts, any inconsistency if there is pro- the two visions, prevail. the latter should *14 com- the chief staff. army the United States
mission of the chief of staff years of office as such as to his tenure four is limited to Code, staff, Barnes Federal relieved. chief of unless sooner 1478, 40 U. S. Stats. 46. sec. right question of the Even if the issue, I do not were in
to remove through the medium of agree can done be that agree efficiency I board. martial or a court many provisions other find Justice also Chief state, as the United Constitutions of States army regulations Congress do that as acts of well opinion support court. appear suggested My objections as outlined were not above argument of counsel on either oral or in briefs court, I includ- think that the members this side. ing myself, had the benefit should have views concerning these and other matters counsel on both sides appear to me to vital in the correct determination be great public importance. question of such of a think, incorrectly deciding, By deciding, ques- I a order, not raised not de- the executive ciding mentioning raised, question I or even so the sole may opinion seriously open fear as whole regarded being to its as obiter dicta. reasons, respectfully
For I the above dissent.