Lewis v. Lewelling

• Decision Date: 07 April 1894
• Parties: LEWIS et al. v. LEWELLING et al.
• Court: Kansas Supreme Court

36 P. 351

53 Kan. 201

LEWIS et al. v. LEWELLING et al.

Supreme Court of Kansas

April 7, 1894

Syllabus

1. Under the constitution of the state, and chapter 142, Sess Laws 1885, providing “for the organization, government and compensation of the militia of the state,” the governor, as commander in chief of the militia, has the power to disband and muster out, at any time, any company of the National Guard, comprising the active militia of the state. Such power has always been exercised by the governors of the state since the adoption of said chapter 142.

2. Enlistment in the National Guard—the active militia—is not to be construed, upon the part of the state, as a contract; but the state, through the governor, as commander in chief, may put an end to the term of enlistment before it has regularly expired.

3. The provision in section 4, c. 142, Sess. Laws 1885, authorizing officers to be commissioned for a term of five years, is violative of section 2, art. 15, of the constitution forbidding the legislature to create any office, the tenure of which is longer than four years. Military officers are within the provisions of the constitution.

4. Where the statute fixes a term of office at such a length of time that it is unconstitutional, the tenure thereof is not declared by law, and the office is held only during the pleasure of the appointing power.

Error to district court, Marion county; Lucien Earle, Judge.

Petition by Frederick Lewis and others against L. D. Lewelling, as commander in chief of the Kansas National Guard, and others, for injunction. From an order sustaining the demurrer, plaintiffs bring error. Affirmed.

The plaintiffs filed their petition on July 15, 1893, against L D. Lewelling, as commander in chief of the Kansas National Guard, H. H. Artz, as adjutant general of the state, and S. A. Maginnis, as acting colonel of the second regiment of the Kansas National Guard, alleging that they (the plaintiffs) were the officers and privates of Company G of the second regiment, duly commissioned and enlisted as such; that their term of service, as provided by the terms and conditions of their enlistment, and by the laws of Kansas, is for the period of five years; that the term of their enlistment had not expired in the case of any one of them; that Company G was duly organized in pursuance of the laws of the state, and the rules and regulations of the military board thereof, on or about October 1, 1885, and that the company had, during all said time, kept its membership of noncommissioned officers and privates up to a number in excess of 40, and not in excess of the number of 60; that the company had been provided with arms, uniforms, and other military equipments, as provided by law, and had at all times since its organization conformed to the military laws of the state, and all the rules and regulations of the military board, concerning meetings, drilling, instruction, practice in the manual of arms, and annual muster, and fully complied with all other lawful rules, regulations, and orders promulgated by the military authorities of said state; that neither the company nor any of its members had been guilty of any neglect of duty, breach of discipline, disobedience of orders, or violation of law, nor of any conduct which would authorize their discharge or dismissal from the military service of the state before the expiration of their term of enlistment; that, nowithstanding the premises, L. D. Lewelling, as commander in chief of the National Guard, without any lawful authority, and in excess of his power as such officer, had issued an order directing that all the officers and enlisted men of the company be mustered out of the military service of the state, and discharged therefrom, on July 15, 1893, at 4 o’clock p. m., and that the company then surrender to a mustering officer all its arms, equipments, and other military property of the state in its possession, and the said H. H. Artz, as adjutant general of the state, was proceeding to, and would, unless restrained by the court, carry out the order at the time, and that he had for that purpose detailed S. A. Maginnis as a mustering officer to meet the company at its armory at Marion, in this state, on the said day and hour, to muster it out, and discharge each of the plaintiffs from the military service of the state, all of which orders and acts are and will be illegal, and without the authority of any law whatever, and in violation of the rights and privileges of the company, and each of its members, and for which threatened wrongs and injuries the plaintiffs are wholly remediless at law, and without the means of protection from the threatened injuries and wrongs, except by and through the orders, injunctions, and processes of the court. The petition closed with a prayer for an order restraining the defendants, and each of them, from mustering out the company. To this a demurrer was filed by all the defendants, as follows: “And now comes said defendants, and severally demur to the petition filed against them herein, for the reasons that it appears on the face of said petition—First, that this court has no jurisdiction of the persons of these defendants, nor of the person of either of them, nor of the subject of the action; second, that the plaintiffs have no legal capacity to sue; third, that there is a defect of parties plaintiff and defendant; fourth, that several causes of action are improperly joined; fifth, that the petition does not state facts sufficient to constitute a cause of action.” On September 29, 1893, the demurrer was submitted to the court, after argument, and sustained. The plaintiffs excepted, and bring the case here...