duly summoned by the judge advocate, to preserve order in and about the court room, during their session, and to punish contempts, as the judges of the districts courts have under the laws of this state.

The provision of Const., sec. 237, ante, guarantees to a person prosecuted for an offense before a court-martial organized

under the laws of this state, the right to defend with counsel. State ex rel. Huffaker v. Crosby, 24 Nev. 115, 123 (77 A. S. 786, 50 P. 127).

4050. Removal or absence from state, when deemed resignation.

SEC. 47. Any commissioned officer of a brigade or division, who shall remove his residence from the limits of his brigade or division, will be deemed to have resigned his commission, and any major-general or brigadiergeneral who shall absent himself from the state for more than three months, without the permission of the commander-in-chief shall be deemed to have resigned his office.

4051. Pay of militia in active service.

SEC. 48. Whenever any of the militia of this state shall be called into active service for the space of more than one week, they shall receive the same pay and allowance as United States troops serving in Nevada. Any general or field officer being called into active service, such call shall be deemed to include all the officers of their respective staff. In case a division, or part of a division, is called into active service, the commander-in-chief shall be authorized to put upon active service one of his aides-de-camp, and in case more than one division shall be called into active service, one more aide for each additional division which shall be so called into active service. 4052. Return of arms-Resistance-Misdemeanor.

SEC. 49. When the commander-in-chief shall order the return to the state of any arms, equipments, military stores, or other military property, belonging to the state, such arms and military property shall be immediately delivered to the officer authorized in such order to receive it, he receipting for the same, and describing their condition in such receipts; and if the property mentioned in such order shall not be promptly delivered as directed, the officer named in such order is hereby authorized to take immediate possession of the same in the name of the State of Nevada; and any person resisting such officer in the performance of his duty, shall be deemed guilty of a misdemeanor, punishable by imprisonment for not more than six months in the county jail, and shall be subject to a fine not exceeding five hundred dollars, to be recovered by an action brought by the district or prosecuting attorney, in the name of the State of Nevada, and be paid into the treasury as a part of the military fund.

4053. Board of military auditors.

SEC. 50. The commander-in-chief, adjutant-general, and the controller of state shall constitute a state board of military auditors. The commanderin-chief shall be president, and the adjutant-general shall be secretary of said board.

The bills of county assessors for making the militia roll must be passed upon by the

4054. Idem-Seal.

state board of military auditors and paid out of the militia fund of the state. State ex rel. Hobart v. Ryland, 14 Nev. 46-50.

SEC. 51. The board of military auditors shall have a seal, an impression of which shall be deposited by the secretary of the board in the office of the state treasurer, and be attached to all orders drawn upon the general or military fund.

See State ex rel. Hobart v. Ryland, under sec. 50 of this act.

4055. Idem-How money to be drawn.

SEC. 52. No money shall be paid out of the general or military fund of this state, by the state treasurer, upon the order of the board of military auditors, except as provided in the foregoing section of this act; said order shall specify on its face the objects for which such money is paid, and to whom, and the amount duly entered in a book to be kept by the secretary of said board of military auditors.

A claim against the state for expense of providing an armory, if not shown to be properly chargeable against the state, does not become a legal demand against it simply because the claim has been regularly audited

and approved by the board of military auditors. State ex rel. Pyne v. La Grave, 22 Nev. 417 (41 P. 115).

See State ex rel. Hobart v. Ryland, under sec. 50 of this act.

4056. Secretary of state to keep blank commissions.

SEC. 54. The secretary of state shall, under the direction of the governor, prepare and keep in his charge all blank military commissions. He will issue, from time to time, to the adjutant-general, such blank commissions as he may require for use, charging him with the same.

4057. Divisions and brigades.

SEC. 56. The organized and enrolled militia of this state shall be divided into such number of divisions and brigades as the commander-in-chief shall determine. The governor, as commander-in-chief, shall publicly announce the number of divisions and brigades within sixty days after the passage of this act.

National guard to consist of but one battalion, sec. 4027.

4058. Civil officers in certain cases may control troops-Not to fire blank cartridges-When commanding officer may use own discretion. SEC. 57. Whenever any portion of the organized or enrolled militia shall have been called into active service to suppress an insurrection or rebellion, to disperse a mob, or to enforce the execution of the laws of this state, or of the United States, it shall be competent for the commander-in-chief, or the general acting in his place, as provided in section 39, to place such troops under the temporary direction of the mayor of any city, or the chairman of the board of county commissioners of any county, or of any sheriff of any county, or of any marshal of the United States, and if, in the opinion of such civil officer, it shall become necessary that the troops so called out shall fire or charge upon a mob or body of persons assembled to break or resist the laws, such civil officer shall give a written order to that effect to the superior officer present in the command, who will at once proceed to carry out the order, and shall direct the firing and attack to cease only when such mob or unlawful assembly shall have been dispersed, or when ordered to do so by the proper civil authority. No officer, who has been called out to sustain the civil authorities, shall under any pretense or in compliance with an order, fire blank cartridge upon a mob or unlawful assemblage, under penalty of being cashiered by sentence of a court-martial; provided, that nothing in this section shall be construed as prohibiting any such troops from firing or charging upon such mob or assembly without the orders of such civil officers in case they shall first be attacked or fired upon, or forcibly resisted in the discharge of their duty. When the commander-in-chief, or general acting in his place, shall call troops into active service for the purposes mentioned in this section, and shall not place them under the temporary direction of any civil officer, the commanding officer shall use his own discretion with respect to the propriety of attacking or firing upon any mob or unlawful assemblage.

See secs. 2835, 2839, 2840, 3982.

4059. Collection of fines imposed by court-martial-Military fund. SEC. 58. All fines legally imposed by a court-martial lawfully constituted after the proceedings and findings of said court in the premises have been approved as prescribed by this act, shall be and the same are hereby made collectible by law; and any person failing to pay the same shall be proceeded against by the district or prosecuting attorney, in the name of the State of Nevada, as for ordinary debts, in any court of competent jurisdiction of the county; and a copy of so much of the finding and approval as relates to the imposition and approval of such fine, certified by the officer authorized by law to approve the same, shall be received as evidence in the case; and if judgment be obtained, it shall be collected as in ordinary cases, and shall be paid into the county treasury as belonging to the military fund of the state, and to be, accounted for as such.

4060. Commander-in-chief to publish rules.

SEC. 59. The commander-in-chief may, from time to time, make out and publish rules, regulations, and orders for the government of the militia of this state, in accordance with the provisions and spirit of this act.

4061. Company may adopt name.

SEC. 60. Any volunteer company may, on its organization, or thereafter, adopt a distinctive name, but shall be known by a particular letter or number in the battalion or regiment to which it belongs.

4062. Must belong to one company-Removal-Discharge.

SEC. 61. No person shall be a member of two companies at the same time. and any member of a company who removes beyond the limits of the county, shall be considered as having been discharged from such company.

4063. Fines imposed on minors, who shall pay-Remission.

SEC. 62. In the cases of military taxes and fines, assessed and charged against a minor, the parent or guardian shall be held to pay. In case of minors who are orphans, the commander-in-chief shall have power to remit any military taxes or fines.

4064. Absence of officer-Next in command succeeds.

SEC. 63. In the absence of any appropriate commander, the next in rank in the command of troops, where not otherwise provided in this act, shall succeed to his authority.

4065. Authority of officers.

SEC. 64. Every senior, in his appropriate command, shall have authority to control the actions of his junior, in accordance with the principles of military subordination under the laws and usages that govern the United States army.

4066. Cashiered officers precluded from further commission.

SEC. 65. Any officer cashiered by sentence of a court-martial, shall be precluded thereby from holding any commission in the military service of the state, except the sentence be remitted by the commander-in-chief. 4067. Effect of dismissal from service.

SEC. 66. No noncommissioned officer, artificer, musician, or private. expelled from his company, or dismissed from service, for any disgraceful cause, shall be permitted to again enter any volunteer company, except the offense be pardoned by the commander-in-chief.

4068. Discharges, how granted.

SEC. 67. No officer, inferior in grade to a regimental or battalion commander, shall have power to grant discharges to noncommissioned officers,

artificers, musicians, or privates, in active service; but commanders of companies of the organized militia, when not in active service, may issue certificates of service and discharges. All discharges shall be in writing, and shall set forth fully the cause of discharge, and shall be signed by the officer granting the same.

4069. Resignation-Election-Commissions.

SEC. 68. Any officer resigning his commission, shall do so in writing, and transmit the same through his immediate commanding officer, who will make his endorsements thereon; and the resignation shall go into effect when accepted by the commander-in-chief, and not before. Vacancies of commissioned officers of organized companies and battalions (not in active service) caused by resignation, death, dismissals or removals, or by the expiration of the term fixed by the rules and regulations of such company or battalion, or by any other cause, shall be filled by election, in accordance with the provisions of this act. Such elections of company officers shall be presided over by an officer appointed for that purpose by the brigadier-general, and of field officers, by an officer appointed by the major-general; and such presiding officer shall report the result of such election to the officer appointing him, which report shall be transmitted to the commander-in-chief, who shall issue commissions in accordance therewith; provided, however, that when the same officer shall be elected no new commission shall be issued, but the officer so reelected shall continue to hold under his original commission.

4070. Commissions deemed vacated, when.

SEC. 69. The commission of any staff officer whose term of office depends upon the pleasure of the officer by whom he is appointed, shall, when such officer is not in active service, be considered as vacated upon the qualification of his successor, and shall be so noted upon the proper books, or rolls, kept in the office of the adjutant-general of the state.

4071. Commander-in-chief may disband any portion of the militia for

cause-Effect-Misdemeanor.

SEC. 70. The commander-in-chief is authorized at any time, by issuing his orders to that effect, to disband any portion of the organized volunteer forces, or of the enrolled militia mustered into service, which may evince a mutinous, disorderly, or disobedient spirit, and to deprive them of arms; a copy of which order shall be transmitted to the clerk of the district court or courts of the county or counties in which such force was raised; after which it shall be a misdemeanor in any person so disbanded, to appear with state arms in his possession, or as any portion of the organized volunteer militia, or of the enrolled militia, in active service, until again drafted or regularly mustered into service, under the penalty of not less than ten nor more than one hundred dollars for each offense; and such person shall be proceeded against by the district or prosecuting attorney in the name of the State of Nevada, before any competent court of the county where such person may happen to be; and all fines so recovered or collected shall be paid into the treasury as a part of the military funds.

In an application for writ of mandamus to compel the county auditor to issue to the County treasurer his certificate of the allowance by the board of county commissioners of an expense bill to a militia company, it was held that, as the company had not taken the oath as required by sec. 55 of this act (now repealed), it was not entitled to

armory rent and the writ was denied. State ex rel. O'Meara v. Ross, 20 Nev. 61, 62, 64 (14 P. 827).

The oath of allegiance was intended for the benefit of the state, and a failure to take it will not relieve the members of the company from their duty under the law. Idem.

4072. May adopt uniform subject to approval.

SEC. 71. Every company, battalion, or regiment of organized militia of

this state may adopt a uniform for itself, subject, however, to the approval of the commander-in-chief, on inspection and report by the proper officer. As amended, Stats. 1867, 105; 1871, 108.

4073. Tactics of United States army to control.

SEC. 73. The systems of instruction in tactics, prescribed for the different arms and corps in the United States army, shall be followed in the military instruction and practice of the militia of this state, and the use of any other system is forbidden.

4074. To furnish county clerk with list of members-False list-Penalty. SEC. 74. The commanding officer of every organized company shall, during the months of June and December of each year, furnish the county clerk of his county with a list of the names of the bona fide members of his company, who attend regularly to appropriate duty. He shall, also, at the end of each year's service of any member of his company, who has performed duty in accordance with the regulations and by-laws of such company, during the year, issue to such member a certificate to that effect; and if such commander of a company shall make a false list of the members of his company, who have done duty as aforesaid, or a false certificate of service, he shall, on conviction by a court-martial, be cashiered from service, and shall, moreover, be subject to a fine of not less than fifty nor over five hundred dollars, to be sued for and recovered in the name of the State of Nevada, by the district or prosecuting attorney of the county of his residence, in any court of competent jurisdiction, and be paid into the treasury as a part of the military fund of the state.

4075. Bands of music.

SEC. 76. When bands of music shall not have been organized for any regiment, battalion, or isolated company, in the manner provided in the regulations of the army of the United States, it shall be lawful for such regiment, battalion, or isolated company, through its commanding officer, to hire the services of any band of musicians, at their own expense, or if on duty for the state, at the state's expense; and the persons so employed shall, during the time of their engagement, be subject to the same laws and regulations that govern the military body with which they may serve.

4076. Drafting for service-Substitute accepted.

SEC. 77. When any person drafted for service shall offer, at or after the time of rendezvous, a suitable substitute, of the age of twenty-one years. and such substitute shall consent in writing to subject himself to all the duties, fines, forfeitures, and punishments to which his principal would have been subject had he personally served, he shall be accepted by the officer making such draft; and the same rule shall apply to substitutes offered by members of organized volunteer companies called into active service, the commanding officer of such company being the judge of the suitableness of the substitute offered; and the person whose substitute shall be so accepted shall be exempted from draft during the term of service of his substitute. 4077. Idem-Members of courts-martial exemption from liability.

SEC. 78. No action shall be maintained against any member of a courtmartial, or officer, or agent acting under his authority, on account of the imposition of a fine or the execution of a sentence on a person not liable to military duty, if such person shall have been duly summoned and shall have neglected to appear and show his exemption before the court.

4078. Courts of inquiry-Powers-Rules governing.

SEC. 79. Courts of inquiry may be ordered by the commander-in-chief, or by any major-general or brigadier-general; such courts of inquiry shall be