(concurring specially). I concur in the conclusion that the writ should be denied, but am unable to assent to the reasons given by my associates for so holding, and will briefly state my views.
I am firmly convinced tha-t sections 2 and 3, c. 136, p. 244, Laws 1905, are unconstitutional and void because not expressed in the title of the act. The title of the act is as follows: “An act providing that all appointments to the various departments of the National Guard of the state of North Dakota shall be made from officers of the field or line.” By its restrictive language the subject-matter embraced in sections 2 and 3 cannot, under the most liberal construction, be said to be expressed in such -title. Section 2 of the act prescribes a maximum -period of two years for which appointments may be made, and section 3 provides for placing the *115officers mentioned in section 1 upon the retired list at the end of their term of duty. These subjects are entirely foreign to the purpose of the act as expressed in the title, which is merely to restrict appointments to these various departments so that no one may be appointed except an officer of the field or line; in other words, it deals and purports to deal only with the question as to who may fill the various departments, and, as I construe the various decisions of this and other courts cited by my Brother Ellsworth, they come far short of sustaining his views.
The sections aforesaid being unconstitutional, there is no law prescribing the term, of Adjutant General; but it by no means follows from this that his term is for life. On the contrary, it is clear to my mind, that his term of service is merely during the pleasure of the appointing power. There is good reason why this should be so, for the Adjutant General is a staff officer; he is a member of the official family of the Commander in Chief, and is referred to frequently as, and is by law in some states, Chief of Staff. He is, in a sense, the military secretary to the Commander in Chief. Under section 1-719," Rev. Codes 1905, the Governor, as Commander in Chief, is given “full power to appoint the Adjutant General” and other departmental officers, and I think this fairly implies that he may do so at any time or at pleasure. If it was the intention that he should be empowered to make such appointments only when, by reason of removal through court-martial or by death a vacancy is created, different language would have been employed. It was no doubt the legislative understanding that appointments to these various departments were left entirely with the Governor as Commander in Chief. In other words, that he should have an absolutely free hand to remove and appoint at will any of such officers, as, in his judgment, the good of the militia demanded. This is in full accord with the general and well-established rule that the appointing power in the absence of express statute to the contrary fixing the term, may appoint and reappoint at will.
It is-contended, however, by relator’s counsel, in effect, that this general rule can have no application because of the provisions of section 192 of our state Constitution that “no commissioned officer shall be removed from office except by sentence of court-martial, pursuant to law.” In my opinion, the fallacy of this argument consists in the unwarranted assumption that the persons appointed to these various departments become by virtue of such appointments “commissioned officers” within the meaning of such *116constitutional provisions, and hence can be removed or retired only by court-martial. It is clear that such could not have been the intention of the framers of the Constitution. To attribute to them such purpose is to attribute to them a purpose to depart from the almost universally recognized custom, usage, and regulations pertaining to the militia in this country. By statute in Alabama, Arizona, California, Colorado, Connecticut, Georgia, Idaho, Illinois, Iowa, Kansas, Kentucky, Massachusetts, Montana, Missouri, Nebraska, Nevada, New York, North Carolina, Oregon, Utah and West Virginia, the Adjutant General is appointed by the Governor as Commander in Chief, and is a member of his staff, and holds his office during the pleasure of the Commander in Chief. In many of said states he is Chief of Staff. In some of them it is expressly provided that he cannot hold his office longer than the term of the Governor as Commander in Chief, or until his successor is appointed and qualified. In Arkansas the office of Adjutant General was abolished by act of March 11, 1879, and the duties formerly belonging to such office are given to the Governor’s private secretary. In Florida he is Chief of Staff, and his term is four years, but he may be removed for certain causes. In Indiana he is a staff officer, and by statute it is provided that “no commissioned officer, except staff officer, shall be dismissed from the service except by the sentence of a legally constituted court-martial.” In Michigan he is made a staff officer, and is appointed by the Governor, by and with the advice and- consent of the Senate, for the period of two years, or until his successor is appointed and qualified. In Minnesota he is a member of the Governor’s staff, and his term is not prescribed. In New Jersey he is appointed by the Governor, with the advice and consent of the Senate — no term fixed. In Rhode Island he is made 'Chief of Staff, and elected for a term of five years. In South Carolina he is a member of the Governor’s staff, but elected by the people for the same term as other state officers are elected. In Texas he is a member of the Governor’s staff, and is appointed by him as Commander in Chief, by and with the advice and consent of the Senate, if in session, for a term of two years. In Vermont he is elected by the General Assembly. In Washington he is elected by the field and line officers for a term of four years, and in Wisconsin he is made the chief of the Governor’s staff, and no term is prescribed.
*117It will be seen that, if the contention of relator, that his term continues for life or until removed by court-martial be sound, a most radical departure is made in North Dakota from the statutory regulations in the other states and territories. I cannot believe that the Constitution and laws of this state are susceptible of any such construction as that contended for by relator’s counsel. Section 192, supra, has reference clearly to those officers of the militia only who belong to the field or line, or, in other words, who are known as field or line officers, and to whom commissions have been issued conferring a certain rank upon them, as, for instance, brigadier general, colonel, lieutenant colonel, major, or captain. These ranks are their offices to which they have been commissioned, and from which they cannot be removed except by court-martial. The Adjutant General, as such, is not a commissioned officer within the meaning of those words as used in the Constitution. He is merely a staff officer. It is true he must me selected, appointed, or detailed from the officers of the field or line, i. e., from the commissioned officers. It is true that the person who is detailed or appointed as Adjutant General is, while in such department, clothed with the rank of brigadier general, but this does not mean that the Adjutant General, as such, is a commissioned officer. Can it be possible that the framers of the Constitution intended that staff officers should have a life tenure ? In other words, that each Govern- or cannot, as Commander in Chief, select his own staff officers? Most clearly not. Staff officers are appointed or detailed for duty by the commanding officer, and it is, to my mind, perfectly apparent that, when there is a change in the commanding officer, the new commanding officer may select and detail his staff officers. Section 1747, Rev. Codes 1905, provides: “Commanding officers of regiments or battalions shall detail their staff officers from the officers or enlisted men of their command, and appoint the non-commissioned officers of the organization by warrants. Staff officers so detailed (not commissioned) will be dropped from the company rolls and the vacancy filled by promotion or appointment.” A commissioned officer who has been appointed or detailed to one of these departments may be removed dr retired therefrom at the pleasure of the Commander in Chief, the same as such an officer may be removed or retired from his command; and such removal or retirement is not a removal from office within the meaning of section 192 of the Constitution aforesaid. He retains his rank on *118which he is retired, and this is the office to which he is commissioned, and from which he cannot be removed except by court-martial.
As said by the New Jersey court in Grove v. Mott, 46 N. J. Law, 328, 50 Am. Rep. 424: “The argument that the section of the act under which Major General Mott placed the officers of the disbanded company on the retired list is in conflict with the Constitution of the state is fallacious. It is contended that it violates article 7, § 1; par. 6, which forbids the removal' from office of commissioned officers of the militia, except through sentence of a court-martial. The ¡answer is that the officers of the disbanded company have not been removed from office. The framers of the national guard act knew the difference between taking away an officer’s commission and placing him on the retired list. By placing Capt. Grove ¡and the other officers of the company on the retired list, the division commander kept within constitutional requirement, and did not only what the Constitution permitted and the law authorized, but pursued a course sanctioned by long military usage.” At another place in the opinion it is said: “The officers placed on the retired list still hold their commissions, and may be assigned to military duty by their superior officer. They are still carried on the register, hold the rank upon which they were retired, and are entitled to wear the uniform of said rank. In fact, none of their personal rights or property interests have been invaded.” In this connection see section 1797, Rev. Codes 1905.
In People v. Ewen, 17 How. Prac. (N. Y.) 375, the same doctrine is announced. The court there held that an order disbanding or consolidating corps does not deprive an officer belonging to a disbanded company of his commission, nor take from him any privilege contrary to the Constitution. We quote: “Section 5 provides that ‘no commissioned officer shall be removed ¡from office unless by * * * the decision of a court-martial pursuant to law.’ By the consolidation of the regiments in question the relator is not deprived of office. * * * To be sure, the relator will become a supernumerary lieutenant-colonel, but that only deprives him of present command; it does not deprive him of office; and this is all that is prohibited by the Constitution.” To the same effect, see People v. Hill, 126 N. Y. 497, 27 N.E. 789; State v. Jelks, 138 Ala. 115, 35 South, 60, and 1 Winthrop Military Law, p. 607.
*119To make my views dearly understood, section 192 should receive the same construction as though it read, “No line or field officer of the grade of brigadier-general, colonel, lieutenant-colonel, major, captain, etc. (being the commissioned officers), shall be deprived of the title or grade to which he has been commissioned, except by court-martial, pursuant to law.”
If the foregoing views are sound, and I think they are, then the Governor, as Commander in Chief, had a legal right to remove the relator at will and appoint another person in his place. This was done, and hence relator has no legal claim to the office, and the writ should be denied.