As an individual I cannot help being glad that my colleagues have taken the view of the law which they have, for there is no doubt that, considering the matter from a moral standpoint alone, the Governor acted on the dictates of humanity in calling out the National Guard under the circumstances of this case, and, had the legislature been in session at the time, it would doubtless have made prompt provision for payment of the costs thereof.
As a judge, however, I must declare the law as I believe it exists, regardless of my personal opinion as to what it should be, and I regret to state that I cannot concur with the majority of the court, either as to their result or reasoning.
Section 2224, Revised Code of 1928, as amended in 1929, quoted in the majority opinion, is the authority under which the Governor attempted to act. This gives him, by its terms, a discretionary right in determining when the necessity arises requiring that the guard be called into service, and does not expressly limit the kind of service to be performed, but it seems to me that there is the implied limitation, which is assumed to go with every similar power, that the service must be one which the guard was created to perform, and not one which is sanctioned only by the moral law and which applies to *Page 28 all alike. The National Guard is the organized militia of the state of Arizona, and the function of such a body has at all times and in all places been considered military only in its nature, and limited to the defense of the state against a public enemy, and to the preservation of internal order within its limits. Anything which reasonably subserves either of these two purposes is a function of the guard. Nothing else is. So far as this court has been advised, or has been able to ascertain, there is no case in the history of the United States where there has been an attempt to use the National Guard for any purpose, except on the avowed, although perhaps sometimes tenuous, theory that the preservation of public order by force was necessary.
Under the reasoning of the majority opinion, the Governor can use the guard for scavenger service, the mending of the public highways, or the construction of public buildings, if he thinks it necessary. Of course no one imagines he would actually do so, but according to that opinion the power exists.
I think that under the law the action of the auditor in refusing to issue her warrants for the expenses of the guard was correct, and that the proper course for petitioner, and those similarly situated, is a request to the legislature for an appropriation to pay the expenses of performing what was a moral, though not a legal duty, a request which I am sure the legislature would promptly comply with. *Page 29