Moreover, we do not believe that it was possible for the Governor to remove General Chase except for cause, but it is our opinion, based upon the Articles of War and the opinions cited, that a trial must be had by court-martial and that the preferment of charges against a military officer always carries with it the right to such a hearing. The adoption of the regu lations, Articles of War and customs in the service of the United States Army guarantees this right to every commissioned officer of the National Guard of Colorado. It is argued that it would be impossible to get rid of an officer of the National Guard under such conditions. We see no difficulty growing out of this question, either in the case of the National Guard of Colorado or in case of the United States Army. An officer who is unfit for duty can always be relieved from his command. An officer who is unfit for service may be retired, but, under the Articles of War, such retirement carries with it the right to an investigation by a retiring board. We further point out that the right of any person to an office in Colorado is not a vested right, and may be changed, extinguished or altered at the pleasure of the Legislature, unless otherwise secured by the Constitution. Taylor vs. Beckham, 178 U. S., 548. Blake vs. U. S., 103 U. S., 227. Ex parte Hennan, 13 Peters, 259. We have read all the authorities submitted to us, but none of these authorities sustain the right of the executive to remove a commissioned officer in the army, in time of peace, without sentence of court-martial. The law is summarized in the following extract from Street vs. United States, 24 Court of Claims Report, pages 230, 248: "The purpose of the act 17th July, 1866, was not to attach a life tenure or element of vested right to the office, but to save officers in time of peace' from the ignominy of a hasty and dishonorable dismissal. The practical results of the statute, in connection with the other provisions of law bearing upon the subject, are these: that in time of war the President may dismiss an officer from the service at any mement and for any cause; that in time of peace he may dismiss him for cause with the cooperation of a court-martial, or remove him without cause with the consent of the Senate." We have gone into this matter at great length, and we are unable to reach any other conclusion than that the order made by the Governor on January 9th, 1905, is void, and therefore, did not remove General Chase from the office of Brigadier General; that the appointment of Colonel Verdeckberg to the position of Brigadier General was illegal and void, because the law provides for only one Brigadier General. Respectfully submitted, N. C. MILLER, Attorney General. and W. R. RAMSEY, Assistant Attorney General. NATURALIZATION. The County Courts of this State, under the new naturalization law enacted by Congress, June 29, 1906, do not have jurisdiction to naturalize aliens. August 16, 1906. HON. JESSE F. McDONALD, Governor of Colorado, State Capitol, Denver. Dear Sir-I beg to acknowledge receipt of your communication of August 15, enclosing a letter from the Hon. F. W. Sargent, Commissioner General of the Department of Commerce and Labor, a copy of the new naturalization law and a copy of the circular letter transmitted by you to all the judges of this State concerning said law, and in compliance with your request for an opinion from this office as to the jurisdiction of County Courts under said law, I have the honor to call your attention to section 3 of said law, which was approved June 29, 1906. Said section provides that exclusive jurisdiction is conferred upon certain United States Courts mentioned therein, and also "all courts of record in any state or territory now existing, or which may hereafter be created, having a seal, a clerk and jurisdiction in actions at law or equity, or law and equity, in which the amount in controversy is unlimited." The County Courts of this State are limited as to jurisdiction by a constitutional provision. See article VI, section 23, Colorado Constitution. As our County Courts are thus limited as to jurisdiction, I am of the opinion that the new law which goes into effect ninety days from the date of its passage, does not confer naturalization jurisdiction upon such courts, and that, under the provisions of said law, our County Courts will not have the power to naturalize aliens. Respectfully yours, N. C. MILLER, Attorney General. By W. R. RAMSEY, Assistant Attorney General. NOTARIES PUBLIC. A single woman holding commission as notary public, upon marriage, forfeits such commission. December 29, 1905. HON. JAMES COWIE, Secretary of State, Denver. Dear Sir-In reply to your request for an opinion as to whether a single woman, who has been duly appointed a notary public in this State, can continue, after marriage, to act in such capacity under the original appointment, I beg to say that while the marriage in itself would be no bar to such continuance of authority, still, on account of the requirements of our statutes for authenticity, the acknowledgments of notaries and for recording their commissions, there would be no way of properly showing that the woman so married—which marriage legally changes her surname to that of her husband-is the same person to whom the notarial commission was issued; and, as she can no longer legally use her former name, all acknowledgments taken and official acts performed by her would lack that authenticity to which those requiring such services are entitled, and for this reason, if no others existed, public policy demands that her commission should be forfeited. Respectfully submitted, N. C. MILLER, By I. B. MELVILLE, NOTARY PUBLIC-ELIGIBILITY. A notary public must be a qualified elector, and a resident of the county for which he is appointed. July 22, 1905. HON. JAMES COWIE, Secretary of State, Denver, Colo. Dear Sir-In answer to your inquiry as to the law relating to the appointment of notaries public, I would say that the statute provides that the Governor shall appoint and commission in each county, as occasion may require, one or more notaries public, who shall hold their office for four years, unless sooner removed. 1 M. A. S., section 3277. In some states a notary public is held to be a state officer, and is authorized to act as such throughout the state, but in this State it is held by the Supreme Court that, although a notary public holds his office by the appointment of the Governor, he can exercise the functions thereof only in the county for which he is appointed, and that in this sense he is a county officer. See, In the Matter of House Bill 166, 9 Colo., €28. Hill vs. Bacon, 43 Ill., 477. It is necessary that a person shall be a qualified elector in order to be eligible to appointment as a notary public, and that he must be a resident of the county for which he is appointed. Our Constitution provides that: "No person shall be eligible to any county office unless he shall be a qualified elector." Colorado Constitution, section 10, article XIV. The term "qualified elector," as employed in the foregoing constitutional provision, is used in its broadest sense, meaning a person qualified to vote generally. Respectfully yours, N. C. MILLER, Attorney General. By W. R. RAMSEY, Assistant Attorney General. NUISANCE-POLLUTION OF WATER IN BUCKSKIN CREEK REMEDY. To pollute water in a stream so as to render the same offensive or unwholesome to the town, county, village or neighborhood thereabouts is a nuisance, punishable by fine, and may be removed or abated by proper proceedings in District Court. April 5, 1906. DR. HUGH L. TAYLOR, Secretary State Board of Medical Examiners, Denver, Colo. Dear Sir I am in receipt of your communication, dated April 2, 1906, enclosing certain correspondence from Frank B. Young, State water inspector, in relation to William Frasier, of Alma, Colo., in which it is claimed that Mr. Frasier is polluting the water in a stream called "Buckskin," and is thereby creating a nuisance. The matter is submitted to this office for advice and instructions as to the proper course to pursue. In compliance with your request, I desire to say that this matter should be brought to the attention of the district attorney of the Eighth Judicial District. His name is Augustus Pease, and he is located at Canon City. Your attention is also called to section 1357, 1 M. A. S., page 943, which provides : "If any person shall obstruct or injure or cause or procure to be obstructed or injured, any public road or highway, or common street or alley of any town or village, or any public bridge or causeway, or public river or stream declared navigable by law, or shall continue such obstruction so as to render the same inconvenient or dangerous to pass, or shall erect or establish any offensive trade or manufacture or business, or continue the same after it has been erected or established, or shall in any wise pollute or obstruct any water course, lake, pond, marsh or common sewer, or continue such obstruction or pollution, so as to render the same offensive or unwholesome to the county, town, village or neighborhood thereabouts; every person so offending shall, upon conviction thereof, be fined not exceeding three hundred dollars; and every such nuisance may, by order of the District Court before whom the conviction may take place, be removed and abated by the sheriff of the proper county, and any inquest and judgment thereon had under the provisions of any law authorizing a writ of ad quod damnum shall be no bar to a prosecution under this section." |