plied to some one of the objects named in the act concerning the militia. And when you discover, by a reading of the voucher, that the money is to be misapplied to some purpose not mentioned in the act, it is your duty to reject the voucher and refuse payment. There is no authority possessed by the military board or the Adjutant General to apply this fund to any object not mentioned in the act regarding the militia.

It is therefore necessary to refer to the act concerning militia, found in 3 Mills (Revised Supplement), and also to the article concerning military poll tax, contained in 2 M. A. S., in order to ascertain what objects and purposes the military fund is appropriated to cover.

In short, when a claim is presented, it is the duty of the Auditor to find out by virtue of what law it is payable. This is precisely the reason for the creation of the office of Auditor of State.

My conclusion is that all vouchers must be signed by the Adjutant General and approved by the Governor as commanderin-chief.

As to those bills which must be allowed by the military board, I would suggest that you require the voucher to show on its face that it has been submitted to the military board and allowed. This you can require to be done by some proper means.

As to those debts which are created by the military board, such as leases for armories, the purchase of fuel, lights and stationery, the employment of a clerical force, etc., mentioned in section 3067, volume 3, Mills (Revised Supplement), I think you can proptect yourself by relying on the integrity and honor of the officials. When your attention is called to a failure to submit these matters to the military board before creating the debt, then it becomes your duty to inquire into the truth of the complaint, and, if sustained, to reject the vouchers.

It is unfortunate that the method of allowing the bills in the Adjutant General's office is not uniform, and the Legislature should pass an act providing for a uniform system of allowing claims.

Respectfully submitted,

N. C. MILLER,
Attorney General.

1

NATIONAL GUARD.

The Governor may issue license for organization of military company for drilling and marching in parades, which may be revoked by the Governor at any time. Section 2119 Mills (Rev.), 116, U. S., 252.

December 4, 1905.

HON. JESSE F. McDONALD,

Governor of Colorado,

State Capitol.

Dear Sir-In reply to your written request of the 29th ult., for an opinion from this office as to whether you can legally grant permission for the formation of a military company or club, not to be in anywise connected with the National Guard of Colorado, but to be organized for the purpose of drilling and marching in parades, and for this purpose to be allowed to possess and carry arms, I beg to say that such power is vested in you by section 2119 of 3 Mills' (Revised) Statutes, which provides:

"It shall not be lawful for any body of men whatsoever, other than the regularly organized National Guard or the troops of the United States, to associate themselves together as a military company or organization, or to parade in public with arms, in any part of the State, without the license of the Governor therefor, which may, at any time, be revoked; nor shall it be lawful for any city or town to raise or appropriate any moneys toward arming, equipping, uniforming, or in any way supporting or sustaining, or providing drill rooms or armories for such bodies of men; Provided, however, That this section shall not apply to the posts of the Grand Army of the Republic."

A statute similar to this one was passed upon by the Supreme Court of the United States in Presser vs. State of Illinois, 116 U. S., 252, and there held to be constitutional in all particulars; so that, in accordance with the provisions of this section, you have the authority to issue a license for the organization of such a military company or club, the existence of which may be termi nated by the revocation of such license at any time, by yourself or any future Governor of this State.

Respectfully submitted,

N. C. MILLER,

Attorney General,

By I. B. MELVILLE, Assistant Attorney General.

NATIONAL GUARD.

Brigadier General of National Guard in Colorado can be removed only for cause. This implies a trial before a court-martial, in accordance with the Articles of War.

The Articles of War are in force in Colorado where statutory laws have not been enacted governing the same subject.

General discussion of power of removal of appointive officers in

Colorado.

June 27, 1905.

HON. JESSE F. McDONALD,

Governor of Colorado.

Dear Sir-In compliance with your request I have the honor to submit an opinion concerning the office of Brigadier General of the National Guard of Colorado. The opinion relates to the tenure of office of the Brigadier General.

On the 9th of January, 1905, Governor James H. Peabody issued an order removing and discharging General Chase, the Brigadier General, from the service. This order was made without any notice or hearing and without the action of a court martial, and purports to have been made for cause. At the same time, the Governor made an order appointing Colonel Edward Verdeckberg, vice John Chase, discharged. A controversy has arisen as to which of these gentlemen is entitled to the office of Brigadier General.

A proper determination of this controversy involves a consideration of the following questions, viz.:

General Chase having been legally appointed Brigadier General on the 1st day of January, 1901, was the order of removal and discharge a valid order?

LEGISLATION.

Under the statute of 1877 the Governor, by and with the consent of the Senate, was authorized to appoint "one or more Brigadier Generals for each division." Laws of 1877, chapter 65, section 3, page 616.

The act of 1879 also made the same provision, but repealed chapter 65 of the Laws of 1877. By the act of 1879 it was also provided:

"Field officers of battalions and regiments shall be elected by ballot, by the commissioned officers of such organizations, to serve for a term of three years, unless sooner discharged; and line officers shall be elected, in like manner, by members of their

respective companies, troops and batteries, to serve for a like 'term."

Laws of 1879, pages 118-119.

In 1883 the act of 1879 was amended, and authorized the Governor, "when required for active service in time of war, to appoint one or more Brigadier Generals, as necessity may demand, in the brigade or division organization." Said act was further amended as follows:

"In time of peace, and until the increased military strength of the State shall demand a reorganization, there shall be elected by a vote of the commissioned officers of the State, one Brigadier General (competent soldier), who shall command the first brigade, and hold office for the term of three (3) years, or until his successor may be elected and qualified, unless sooner removed for misconduct, or in case of the vacation of his office by resignation duly accepted."

Session Laws of 1883, page 241.

Gen. Statutes of Colorado, chapter 73, page 698.

On the 2nd day of April, 1889, chapter 73 of the General Statutes was repealed. See Session Laws of 1889, pages 383,

409.

Section 1, article III of the act of 1889 provides:

"In time of peace the Colorado National Guard shall constitute one brigade under the command of a Brigadier General." Section 2 of said act provides:

"The Brigadier General shall be chosen from the field and line officers of the National Guard, and shall be elected by a vote of all such officers of the organized military force who have been duly commissioned, and he shall command the first brigade." Session Laws of 1889, page 367.

Section 11 of said act provides:

"Field officers of battalions and regiments shall be elected by ballot, by the commissioned line officers of such organization; and line officers shall be elected in like manner by the members of their respective companies and batteries. All commissioned officers hereafter elected shall hold their commissions for three years from the date of election."

Session Laws of 1889, page 390.

* * *

In 1893 an amendment to the act of 1889 was enacted, as follows:

"In time of peace the National Guard of Colorado shall constitute one brigade under the command of a Brigadier General,

and until the increased military strength of the State shall demand a reorganization, it shall be organized into regiments, battalions, troops and batteries, as herein provided."

Said act was also amended so as to provide:

"The organization, equipment and discipline of the National Guard of Colorado shall conform as nearly as practicable to the regulations for the government of the armies of the United States. The Governor shall appoint all general and field officers and officers of the general staff and shall commission them."

It was further provided that line officers shall be elected by ballot by their respective companies and batteries, and that all commissioned officers hereafter elected shall hold their commission for three years from date of election.

Session Laws 1893, pages 341-344.

"The Governor shall appoint all general, field and staff officers, and commission them. Each company shall elect its own officers, who shall be commissioned by the Governor; but if any company shall fail to elect such officers within the time prescribed by law, they may be appointed by the Governor."

Article XVII, section 3, Colorado Constitution.

"The organization, equipment and discipline of the militia shall conform, as nearly as practicable, to the regulations for the government of the armies of the United States."

Article XVII, section 2, Constitution of Colorado.

The foregoing is a brief review of the constitutional and legislative provisions applicable hereto, up to the year 1897.

By an act approved April 13, 1897, the Legislature made a complete revision of the laws governing the militia, and expressly repealed all laws and parts of laws in conflict there. with. Even if there had been no express repeal, the act of 1897 was intended as a substitute for all previous laws concerning the militia or National Guard. It is a familiar rule that when a new act is adopted covering the whole subject to which it relates, it will, by implication, repeal all prior statutes on that subject.

Cooley's Constitutional Limitations, page 217, Note 1, and cases cited.

Our own Supreme Court has said:

"A subsequent statute revising the whole subject matter of a former statute, and evidently intended as a substitute for