(dissenting). I am unable to agree with the conclusion reached by my associates that the writ should not be issued in this case. I agree with Judge Fisk that sections 2 and 3 of chapter 136, page 244, Laws of 1905, are unconstitutional as not in compliance with the provisions of section 61 of the Constitution. The title of that act does not relate in a general way to appointments to offices, and it expresses only from what source particular appointments are to be made. The title does not express anything in regard to the tenure of the appointments, nor is the tenure of such appointments germane to the restricted subject expressed in the title. No one could infer from the reading of this title that the tenure of the appointments mentioned therein was limited in the body of the act, nor that it provides for the promotion or retirement of officers of the militia or National Guard.
The ground upon which I am forced to disagree with my associates is that section 192 of the Constitution is not given effect by them, nor do they suggest any sound reason for sustaining their conclusion that it has no application. ¡My opinion is that section 19'2 applies to all commissioned officers of the militia or national guard of this state, and that the relator is a commissioned officer thereof, and holds that office during good behavior, or until removed by court-martial, or until he resigns, or the Legislature, by a valid act, limits the term of his incumbency of office. If it is against the principles of republican governments to tolerate life tenures in office, civil or military, the Legislature is the proper body to remedy or change what has been an accepted construction of the law and Constitution as to the tenure of the office, to wit, that it is to be held during good behavior. In other words, this office is held under the same tenure that all commissioned officers of the militia *120of a strictly military character are held. I have no quarrel with the doctrine announced in some of. the concurring opinions of my associates that appointees to offices not having a fixed tenure are removable at the pleasure of the Governor or 'Commander in Chief. But I do most emphatically disagree with the doctrine that such is the case as to officers included within section 192 of the Constitution, which says that: “The commissioned officers of the militia shall be commissioned by the Governor, and no commissioned officer shall be removed from office except by sentence of court-martial, pursuant to law.” I agree with the principles laid down in the cases cited in the concurring opinions (Grove v. Mott, 46 N. J. Law, 328, 50 Am. Rep. 424; People v. Hill, 186 N. Y. 497, 27 N. E. 789; People v. Ewen, 17 How. Prac. [N. Y.] 375), and other cases of similar import. But in my opinion they have no pertinency here, and some of them are expressly based on local statutes. These cases simply hold that no removals were made of the officers complaining, but that they were removed from command merely. In other words, they became supernumeraries as defined by the New York statute, and had no command thereafter. People v. Scrugham, 25 Barb. 216. If it could be shown in this case that the relator has not been removed from the office of Adjutant General of this state, I would concur in denying the use of the writ of quo warranto. But I clio not think it is any answer to the contention that he has not been removed to say that he still holds some other military office or title. The fallacy in the contention that he has not been removed lies in attempting to maintain that the Adjutant General is not a commissioned officer. The statute, both state and federal, provides for the appointment of an Adjutant General. The state and federal statutes provide what his duties shall be in reference to the state militia or national guard. Wie thus have an appointee whose appointment is made obligatory by state and federal law, and his duties are laid down unequivocally by state and federal law. These duties pertain almost exclusively to the state militia and national guard. The state law which provides for the organization of the state militia makes him a component part of the state militia, and provides for his salary and duties. The Governor of the state must appoint some one to that office, 'and the 'Constitution provides that all officers of the militia shall be commissioned by the Governor, and the relator was commissioned by the Governor of the state. Under these circumstances, I do not understand how it can be sue*121cessfully maintained that he is not a commissioned officer of the militia within the meaning of section 192. An office is generally defined as a pubic charge >or employment through which the incumbent discharges a part of the functions of government for the benefit of the public. I fail to find any statute or practice or custom in this state authorizing or providing that the Adjutant General shall be a staff officer of the Governor or his military secretary. As I understand it, the personal staff officers of the Governor in this state >are not deemed to be members or parts of the militia, and are not included within section 1718, which provides what the National Guard of the state shall be composed of. Under the regulations or laws governing the regular army, it is asserted and undoubtedly true that adjutants of regiments or adjutants general of brigades are, or may be, staff officers of the commanding officers, being detailed from the various officers of the regiment or brigade by orders and not commissioned as such. But it does not seem to me that this fact has anything to do with the question under consideration in this case as to the commissioning and tenure of office of the Adjutant General. The contention is made that section 1774, Rev. Codes 1905, is conclusive upon the question as to whether the Adjutant General is a commissioned officer or is merely a detailed staff officer of the Governor. I-do not understand that said section does anything more than to provide the compensation for the officers and enlisted men when called out as a regiment or brigade for active service. This section does not mention an Adjutant General, as his compensation is fixed by section 1737 of the Code. I think the words “staff officers” as used in section 1774 refer entirely to the staff officers of the commanding officers of the regiment or brigade. The words “staff officer” as used in that section have the same meaning and refer to the same officers as the officers referred to under section 1747 of the same Code, and in neither section do they refer to the Governor’s staff. As a matter of fact, the duties of the Adjutant General in this state are almost exclusively independent of the Governor, except that the Governor is the superior officer as Commander in Chief. I do not find any reasonable basis for the contention that the relator has not been removed from the office of Adjutant General, but has simply been relieved from the duties. The basis of the contention that he has not been removed is that the office and duties of Adjutant General are simply incidental to some other office, and that he is detailed from such other office *122to perform the duties of Adjutant General. This means that the relator performed the duties of Adjutant General by virtue of being brigadier general or some other commissioned officer. I do not so understand the statute relating to the appointment and duties of Adjutant General. The relator was not appointed to the military office of brigadier general, nor has he ever held that office so far as the record shows. The office to which he was appointed or commissioned is that of Adjutant General, and that commission or appointment carried with it, as a matter of law, the rank of brigadier general. He had no right and could not perform any duties by virtue of the rank of brigadier general thus conferred upon him. To say that he has not been removed from this office when another commission has been made to it, and the new appointee is performing the duties of the office is an assertion not warranted by the facts, it seems to me. The office which the relator held in the militia prior to his commission to that of Adjutant General has now been filled by another, and the relator cannot be returned to that office. When an officer is detailed to perform the duties of another office he retains his old office and title, and when the detail is at an end he returns to his former office. The cases cited to the effect that the office remains in the incumbent although the command is taken away from him are not in point, and they seem to have been based on local statutes. It will not be denied by me that the Commander in Chief may, under certain circumstances, detail some other officer from the militia to perform the duties of Adjutant General. It is sufficient for the purposes of this case to say that the appointment of the relator was not such a detail, but was an unconditional appointment under a commission. Prior to the enactment of chapter 136, p. 244-, of the Laws of 1905, there was no provision of law in this state requiring Adjutants General to' be appointed from the National Guard. In the case of such an appointment, can it be contended that the Adjutant General could be removed summarily without court-martial by the Governor? If so, what position or office or title in the militia would he retain thereafter, on the theory that his appointment was simply a detail? It is contended that under section 1719, Rev. Codes 1905, providing that the Governor •has “full power to appoint the Adjutant General,” the power is conferred upon the Governor to remove an Adjutant General at his will. If it conferred that power upon the Governor, it is not expressed in that section. To say that *123this section confers the power of removal is adding materially to its provisions. The power of removal should not be implied, but should be directly authorized, and it is not contended that any statute in this state expressly authorizes removals in such case as the one now under consideration. It is worthy of notice that section 192 of the Constitution has always been deemed to include the office of Adjutant General in this state, and this office has always been held under the same tenure as the strictly military offices of the regiment, from -that of colonel to second lieutenant. No appointments to the office have been made except to fill vacancies. It has been conceded with .practical unanimity that the tenure of the office has been during good behavior until the enactment of chapter 136, p. 244, of the Laws of 1906. I- think the fact of such construction of the provisions of the law and Constitution since the' organization of the militia in this state is entitled to weight as showing that the tenure is not limited in the absence of statute. If the Adjutant General holds during the pleasure of the Governor, why was it deemed necessary to pass chapter 136, p. 244, of the Laws of 1905? I think more weight should be attached to the construction given by the Legislature of 1906 and by the state militia officers and Governors since the organization of the militia to the constitutional and statutory provisions in regard to the office of Adjutant General and the tenure thereof than to the fact that the laws and Constitutions of some other states limit the tenure of that office. The question as to what the tenure of that office is, is to be determined by this court .as a question of law, and not as a question of policy. Whether it is a good or a bad policy to limit the tenure of the office of Adjutant General is a question for the Legislature of this state, and what the people or Legislatures of other states consider to be sound policy is not a matter for this court, and should have no bearing as to what construction is to be given to these constitutional and statutory provisions. Tenure of office during good behavior seems to be the accepted policy'in this state, and everywhere, so far as I know, as to the commissioned officers of the militia. I think that there is no danger of injury to the National Guard through the tenurq of office during good behavior of the Adjutant General, subject to court-martial for violation of duty, than through uncurbed power vested in a Governor or Commander in Chief. It seems to be conceded by all parties that the Legislature has full constitutional authority to enact a law *124limiting the tenure of Adjutant General’s office. Such authority is granted by section 191 of the Constitution, which is as follows: “All militia officers shall be appointed or elected in such manner as the Legislative Assembly shall provide;” and there is no basis for the contention that the enactment of such a law would be repugnant to section 192. That section relates only to the powers of the Governor. Section 191 is an express authorization for the Legislature to provide for the appointment or election of all militia officers, and this language is broad enough to authorize a law relating to removals by the appointmexrt of successors to all officers of the militia, where the tenure is not fixed. It is by virtue of section 189 of the Constitution that section 1731, Rev. Codes 1905, relating to disbandment and consolidation of companies, was enacted. People v. Hill, supra. There is no similar section pertaining to the removal of Adjutants General. Hence section 192 of the Constitution is controlling against the .power of the Governor to peremptorily remove him. In section 1719, Rev. Codes 1905, the same language is used in reference to the appointment of Adjutants General as is used in reference to the appointment of brigadier generals, and section 1720 of the Code provides that all commissions shall be issued by the Governor, and that no commissioned officer shall be removed except by sentence of court-martial. It will' not be contended that a brigadier general could be summarily removed by the Governor. If he could not remove a brigadier general, why should a different rule apply to an Adjutant General, who is an officer of the militia by state and federal law, and appointed and commissioned by the Governor the same as a Brigadier Genreal would have to be? It is claimed that Blake v. U. S., 103 U. S. 462, 26 L. Ed. 462, is decisive of the question that an Adjutant General may be removed without court-martial where the tenure of his office is not fixed by law, but I do not so understand that decision. The section of the United States statute similar to our section 192 of the Constitution was under consideration, and, it was held by that court, in view of the statutes which were repealed at the same time that the section under consideration was enacted, and in view of the political conditions and reasons that induced the enactment of that statute, it referred to removals by the President alone, and not to removals by the President with the consent and concurrence of the Senate. The language of the section construed in that case was held susceptible of two constructions, and *125for reasons given in the opinion the court held that the intention of Congress was to prevent removals by the President alone. It is not an authority on the question whether the appointing power can remove an officer of the militia of this state not holding under a fixed tenure in violation of section 192 of the Constitution. In that case, the intention of Congress was gathered from past history and .prevailing conditions. In this case the language of the statute and Constitution is not equivocal, and can be construed without resort to historical events, and when past history is considered it shows that the construction contended for by the respondent has been repudiated.
(120 N. W. 47.)For these reasons I am of the opinion that the writ of quo warranto should be issued, and I therefore respectfully dissent from all the conclusions reached by my Brethren.