Chapin v. Ferry

• Decision Date: 18 December 1891
• Citation: 28 P. 754,3 Wash. 386
• Parties: CHAPIN v. FERRY, GOVERNOR, ET AL.
• Court: Washington Supreme Court

28 P. 754

3 Wash. 386

CHAPIN v. FERRY, GOVERNOR, ET AL.

Supreme Court of Washington

December 18, 1891

Application for writ of mandate by Herman Chapin, paymaster of the first regiment Washington National Guard, against Elisha P. Ferry governor, Thomas M. Reed, auditor, and R. G. O'Brien adjutant general. Granted.

J C. Haines and J. M. Ashton, for petitioner.

STILES J.

The respondents constitute the board of military auditors under the militia law of 1890, (section 23.) The petitioner is the paymaster of the first regiment National Guard of Washington, and as such prays that a writ of mandamus be issued directing the military board of auditors to audit the claims of certain officers and enlisted men of his regiment for pay, while in the service of the state, as he contends they were, under the following circumstances:

The first regiment, of which J. C. Haines was colonel, was constituted at the times mentioned in the affidavit of nine companies, designated as Companies B, C, D, E, F, G, H, I, and K, of which Companies C and G were stationed at Tacoma, in Pierce county; Companies B, D, and E at Seattle, King county; and Company I at Port Townsend, Jefferson county; all of the members of these companies being residents of the counties in which they were stationed, and a majority of them being voters in these counties. On the 24th day of June, 1891, there was a large body of armed men riotously assembled at Gilman, in King county, and threatening to destroy the buildings and machinery connected with the operation of a large and valuable coal mine there. The sheriff of the county being absent, the manager of the mine applied to the deputy-sheriff for a sufficient force to protect it from injury and destruction, but the deputy declined to act in the absence of the sheriff. The manager requested the colonel of the regiment to order out troops from his regiment for that purpose. This he refused to do. The manager then inquired whether, if the sheriff should call upon him for the troops to act as a posse comitatus, he would furnish them. The colonel declined to act without orders from the governor, but at the request of the manager of the mine sent to the governor the following telegram: "Seattle, June 24, 1891. Governor E. P. Ferry, Olympia Hotel: I am informed that a riot has occurred at Gilman, and the destruction of mine property is threatened now by armed men. The sheriff is at Walla Walla. His deputy here declines to act for want of authority. The owners of the mine have appealed to me for protection. I have refused until properly ordered. If the sheriff requests me to send troops to use as a posse, can I do it without orders from you? See Section 860 of the Code, and Ela v. Smith, 5 Gray, 121. I am informed the situation is critical, and that loss of life and property are likely, unless prompt action is taken. COLONEL J. C. HAINES,"-and received in reply the following: "Olympia, June 25, 1891. Colonel J. C. Haines, commanding first regiment N. G. W., Seattle: If any officer mentioned in section 860 of the Code of Washington calls for an armed force to suppress a riot, or to enforce the execution of the laws at Gilman, in King county, you will immediately repair to that place with one or more companies of the N. G. W., as you may deem advisable, and render such aid to the civil authorities as may be necessary. ELISHA P. FERRY, Governor." On the evening of Sunday, the 27th day of June, a riot occurred at the town of Franklin, in King county, which resulted in a battle between two contending factions, numbering in all about 800 men, and in which 2 men were killed, and several wounded. The deputy at that point was unable to quell the riot, or disperse the mob, and the conflict ceased only on account of the approach of darkness. The factions withdrew a short distance from each other, evidently intending to resume the battle with the coming of daylight on the following day. The deputy-sheriff telegraphed Col. Haines, at Seattle, requesting him to order immediately to Franklin one or more companies of his regiment, to assist the civil authorities in preserving the peace. This telegram was received by the colonel at about half-past 10 in the evening of that day. The members of his command were scattered throughout the city, but were collected and sent to Franklin, which is 34 miles away, before daybreak. Prompt action seemed necessary, and the colonel immediately sent to the governor the following telegram: "Seattle, Wash., June 27, 1891. Elisha P. Ferry: I have received a request from a deputy-sheriff to send a company of the National Guard to Franklin immediately, he expecting a riot at any moment. Several persons have been shot. I have ordered a company there, and will accompany them. I have no specified orders from you except for Gilman. If my action is not approved, wire me at Franklin. J. C. HAINES." Companies B and D were ordered out, and, as soon as a sufficient number of these companies were assembled to constitute one company available for duty, the colonel proceeded with them at once to Franklin, arriving there at daybreak. To the telegram of June 27th no answer was sent by the governor. The arrival and presence of the troops at Franklin prevented any further outbreak at that point, and these companies remained in service until relieved from duty on the 15th day of July.

On the 29th day of June the threatened riot at Gilman occurred, and the sheriff, after endeavoring in vain to quell it, requested the colonel to send two companies of his regiment to that place for the purpose of assisting the civil authorities in preserving the peace, and preventing the destruction of life and property. This he immediately did, sending Companies D and E of his regiment there. They arrived at Gilman on the morning of the 30th of June, and reported to the sheriff's deputy, and remained on duty until the 16th day of July, preventing by their presence any further riotous demonstrations. At the towns of Franklin,

Newcastle Black Diamond, and Gilman, in King county, there are large and valuable coal mines, the operation of which constitutes one of the principal industries of the state; and at those places unlawfully armed bodies of men, organized in the form of military companies, paraded and drilled with arms in their possession, and threatened the property pertaining to the mines, and the lives of those who labored in them, being a constant menace to the public peace, and causing great terror and alarm among the peaceable citizens of those towns. In this state of affairs the governor, on the 2d of July, 1891, addressed to Col. Haines the following telegram: "Olympia, July 2, 1891. Col. J. C. Haines, Franklin: The civil authorities should disarm all unauthorized armed bodies at Franklin, Gilman, and elsewhere in King county, where there is danger of a riot or breach of the peace. You will render all necessary assistance to the civil authorities in this direction. After disarmament, the sheriff and deputies will probably be able to preserve the peace, and the presence of the military will no longer be required. A request for voluntary disarmament by all the parties should be made before active measures are taken. ELISHA P. FERRY, Governor." Col. Haines, not deeming the force at his disposal sufficient to carry out the governor's suggestions, in reply sent to him the following telegram: "Gilman, July 2, 1891. Hon. Elisha P. Ferry: Does your order of today, relative to disarming armed bodies, allow me to use, if necessary for its enforcement without breach of the peace, any companies of this regiment other than those now in the field? J. C. HAINES,"-to which he received from the governor the following answer: "Olympia, July 2, 1891. Colonel J. C. Haines, Franklin: You can use all of the first regiment for the purposes indicated in my dispatch of this morning, if necessary. ELISHA P. FERRY, Governor." The sheriff of the county, for the purpose of carrying out the governor's suggestion in his first telegram of July 2d, requested Col. Haines to send a company to Newcastle, one to Black Diamond, and one to Franklin; there being but one company at the latter place,-Company D having been transferred to Gilman. On the 29th day of July Col. Haines accordingly ordered Company C to Black Diamond, Company G to Newcastle, and Company I to Franklin. The first two companies were, at the time the order was issued, at their post in Pierce county, and proceeded by virtue of the order to the stations assigned to them. Company I, of Port Townsend, however, happened to be at Seattle for the purpose of attending a drill, and, receiving the order there, proceeded to the station assigned to it. These companies remained in service until relieved from duty by the colonel commanding; Company G being relieved on the 15th day of July, Company I on the 14th day of July, and Company C on the 18th day of July. The various companies were in service in the field about three weeks, during which time the adjutant general, being by virtue of his office quarter-master general of the state, and having under his charge uniforms, arms, ammunition, tents, blankets, and all the ordinance and quarter-master's stores of the state, supplied the same, from time to time, to the troops upon requisitions from their officers, for use in this service, no objection being made at any time by any officer of the state to the troops continuing in such service, or to their using the property of the state in performing it. Proper pay-rolls were made out and presented to the board of military auditors for the pay of these troops while in this service by the paymaster, but audit of the rolls was refused on the ground that the persons in whose behalf said claims were presented were not, while...