Opinion
(February Term, 1896.)
STATE MILITIA — CALL BY GOVERNOR TO AID IN EXECUTION OF THE LAW — PAYMENT OF EXPENSES INCURRED.
1. The expenses incurred by the State Guard when ordered out by the Governor to aid a sheriff of a county in executing a writ of possession must, in the absence of special provision by law, be paid by the State and not by the county where the writ was served.
2. Section 3245 of The Code, enacted when there was a military organization in every county, provides that the commanding officer of the county may call out the militia on the certificate of three justices of the peace that outlaws are depredating the county, or that it is necessary to guard the jail, and that the county shall bear the expense; and section 3246, substituting the Governor for the "commanding officer" and authorizing him to order out the militia under the preceding section, and providing that the expense shall be paid by the county, do not apply to cases where the Governor, acting under the discretionary power conferred on him by section 3, Article XII of the Constitution, orders the militia to aid a sheriff in serving legal process on information furnished by such officer (and not by the certificate of three justices of the peace) that the civil authorities in such county are inadequate to enforce the process.
ACTION by W. H. Worth, State Treasurer, against the commissioners of CRAVEN, to recover money paid by the State for the benefit of the county, heard on complaint and demurrer, before Boykin, J., at Fall Term, 1895, of CRAVEN.
His Honor sustained the demurrer, and the plaintiff appealed. (119)
Attorney-General and Shepherd Busbee for plaintiff.
M. DeW. Stevenson, C. R. Thomas and W. W. Clark for appellee.
CLARK, J., dissents, arguendo, in which MONTGOMERY, J., concurs.
In April, 1893, a writ of possession was issued from the Superior Court of CRAVEN in favor of J. A. Bryan and wife against Washington Spivey and others, and placed in the hands of the sheriff of the county. The defendants resisted the execution of this writ, and the sheriff was unable to execute the same. He called for the posse comitatus, but this failed, not a sufficient number coming to his aid to enable him to execute said process. Failing to get sufficient assistance in this way, he called upon the Governor of the State for assistance. "And it thus appearing to the satisfaction of the Chief Executive that the power of the civil authorities was `exhausted,' he ordered out and sent seven companies of the First Regiment of the State Guard to said county of Craven to aid the sheriff in the enforcement of the process above mentioned. Said companies, together with the proper officers, were engaged in said duty for several days, and the cost of their transportation, maintenance and other necessary expenses amounted to the sum of $6,131.78."
This sum was paid by S. McD. Tate, Treasurer of the State, upon the warrant of the Governor, we suppose. And plaintiff alleges that this $6,131.78 was expended by the State for the benefit of Craven County, and brings this action to recover of Craven County this amount, with interest thereon, so expended, as plaintiff alleges, for the defendants' benefit.
(120) It has been suggested during the investigation of this case that a decision for the plaintiff might have a wholesome effect in preventing the use of the "home guard." at enormous expense, to suppress riots among negroes and to enforce the execution of civil process, as in this case, where this service should be done by the local authorities; that there would not be many requisitions upon the commander in chief for "seven companies" of the State Guard to aid the sheriff in executing a writ of possession, at the cost to the county of $6,131.78. And this, we think, might be the effect of such decision. But this is a matter for the Legislature and not for us. It is our duty to decide it upon the law as we find it.
Article XII, section 2, of the Constitution, provides: "That the General Assembly shall provide for the organizing, arming, equipping and discipline of the militia, and for paying the same when called into active service."
Article XII, section 3, provides: "The Governor shall be commander in chief, and shall have power to call out the militia to execute the law, suppress riots or insurrections and to repel invasions."
This, it seems, in the absence of legislation, gives the Governor, as commander in chief, the "power" to call out the militia. And the State Guard being made a part of the militia, he had the power to call them out. The Code, sec. 2357. This constitutional power may be regulated by legislation providing what shall amount to sufficient evidence of the existence of the causes mentioned in the Constitution to authorize the Governor to exercise this constitutional "power." And the Legislature may provide, if it think proper to do so, how and by whom they shall be paid. But the Constitution provides that when they are called out they must be paid. And in the absence of any special provision, we must hold that they are to be paid (121) by the State — the "power" that calls them out. This proposition we do not understand to be denied by the plaintiff. But it is contended that the Legislature has provided that this expense shall be borne by the defendant, and the plaintiff relies on sections 3245 and 3246 of The Code for this position.
Section 3245 provides for the arrest of outlaws who are depredating in any particular county, and, where it may be necessary to guard the jail of any particular county, that three justices of the peace may certify the same to the commanding officer of the county, and upon this request such officer shall act, and the county shall bear the expenses of such militia.
Section 3246 provides that the Governor shall call out the militia under the preceding section (3245), and they shall be paid by the county for whose benefit they were called out.
Section 3245 was section 83 of chapter 70 of The Revised Code, and was enacted when there was a military organization and a commanding officer in every county in the State. But under the present plan of organization this is not the case, and section 3246 was enacted in 1869, substituting the Governor for the commanding officer of the county, that there might be some military officer who had the militia at his command and to whom the application might be made. And guarding the jail and catching outlaws not being enumerated in the Constitution as causes for which the Governor may call out the militia, we hold that, before he is authorized to do so for these causes, he must have the same authority that the commanding officer of the county must have had — a written certificate of three justices of the peace as to the facts and the necessity for calling out the militia. In a case of this kind the county would be liable for the expenses of such (122) military force. This liability is put upon the ground that the county has accepted through its authorized agency, and that the demand is made for the benefit of the county. But that is not the case here. No one authorized to speak for the county has made this demand; and if it had been made by three justices of the peace it was not for either of the causes mentioned in section 3245 and would not have bound the county. To make the county liable, the county must first act through its authorized agents, and then in the cases specified in the statute. Manuel v. Comrs., 98 N.C. 9.
The Governors did not undertake to act in this case upon any such authority as that provided in section 3245, but under his constitutional "power," upon such information as he had in the exercise of discretion as commander in chief of the militia of the State. And in the exercise of this discretion, unrestricted by legislation, we hold that he had a right to obtain his information from such sources as he thought reliable — from the sheriff or anyone else — just as a judge would have the right to do in exercising a judicial discretion.
It was contended by the plaintiff that the sheriff had attempted to call out the posse comitatus of Craven County, which they spoke of as the militia of the county; that they had refused to respond, and, as the militia of the county would not act, that the defendant should be held liable. And while we do not see the force of this argument, if true, we cannot concede that the posse comitatus and the militia are the same. The militia, when called out, retains its own officers and organization — is commanded by and acts under its own officers. When the posse comitatus is called out by the sheriff he is its head and commander, and it acts under his authority. Besides, its constituency is not the same. The militia is composed of men of military age, whereas the posse comitatus is composed of all able-bodied (123) persons of sound mind and of sufficient ability to assist the sheriff, and may be younger or older than the military age. Abbott's Law Dict. and Rapalje's Law Dict.
But this cuts no figure in the case, whether they are called posse comitatus or militia. It does not affect the action of the Governor nor the liability of the defendant.
It must therefore be held that the Governor, acting under his constitutional power, called out this military force, and they must be paid (section 3248 of The Code); that, being called out under the law of the State, the State must pay them, in the absence of any special provision for them to be paid by the defendant. There is no error and the judgment is
Affirmed.