placed their telephone lines in good repair and had proceeded to and did collect all the rents and tolls that had accrued on the lines since the institution of that action, which amounted to something like the sum of one thousand dollars; and that it refused to turn this money over to them, or to apply it to the payment of their debt. The company admitted that it had collected $454.90, and on March 26, 1908, a judgment was rendered in favor of Hardwick and Fuller for this amount, and the cause was referred to the commissioner to ascertain and report the amount lost by reason of the company permitting its lines and telephones to remain out of repair; and the amount that should have been earned. At the June term, 1908, the commissioner reported that the amount that had been or should have been collected by the company was $968.65. Thereupon Hardwick and Fuller filed a supplemental petition, seeking to recover the full amount of their debt, and to enforce the lien against the lines as provided in the contract, which stipulated that:

"It is understood that the line built with all its equipment is to belong to first party (telephone company) absolutely, second party (Hardwick and Fuller) owning nothing in same; unless, however, they should fail upon demand, or within a reasonable time after demand, to deliver to said Hardwick and Fuller said receipts for said payment of rents and tolls as above named; in which event they may have a prior lien and may assert said lien in any court in Powell county upon that part of the telephone system built above the river towards Stanton."

Under the supplemental pleadings filed, and after receiving the report of the commissioner and hearing the evidence introduced, the court rendered a judgment against the company for the full amount of the debt, with interest thereon, to be credited by the amount paid. It was further adjudged that Hardwick and Fuller had by the terms of the contract a lien and it was ordered that the lien be enforced, and that the property upon which the lien existed be sold to satisfy the balance due on the debt.

The company complains of this judgment upon the ground that Hardwick and Fuller by the institution of their action waived the right to the receipts, and furthermore that by their failure to attempt to collect any of the rents or tolls they abandoned the clauses of the contract entitling them to relief, and that by their election.

to sue for a breach of the contract and their refusal to collect the receipts they had elected to waive their lien upon the property.

There is no merit in any of these contentions. The substance of the agreement between the parties was that the company should keep its lines in good order, and that out of the receipts Hardwick and Fuller should be repaid the amount advanced by them; and that, upon the failure of the company to keep its lines in good order, or to deliver to Hardwick and Fuller the receipts, they should have a lien upon the property. As the company committed a breach of its contract in failing to keep its lines in good order, and in failing to turn over the receipts to Hardwick and Fuller, they had the right to bring a suit for the full amount of their debt, and enforce their lien upon the property. This relief the court granted, and the judgment is affirmed.

1.

2.

3.

4.

Franks v. Smith.

(Decided February 14, 1911.)

Appeal from Caldwell Circuit Court.

Militia of the State-Power of Governor to Order Into Active Service. The Governor of the State has the authority to order into active service the militia of the State at any time or place that he deems their presence necessary. He need not wait before ordering them out to be requested so to do by the local civil authorities.

Militia-Power of the Governor to Direct Operations.-When the militia are ordered out, the Governor may direct and control their movements through military channels independent of the local civil authorities, or he may, if he chooses, direct the militia to report to any local civil officer and receive directions from him Decision of the Governor not reviewable.-There is no limitation upon the power of the Governor to order into active service the militia or to direct into what locality they shall go or operate. He is to be the judge of the necessity for military intervention, and the courts have no authority to interfere with his action. The fact that this power may be abused is not sufficient to deny the granting of it.

Duty of the Governor to Preserve Peace and Quiet and see That the Law is Executed.-The Governor is charged by the Constitution and law with the duty of preserving the peace and quiet of the State, and to protect the life and property of its citizens; and to accomplish this end may use all the military forces of the State.

5.

6.

Governor acts as a Civil Officer.-In ordering out and controlling the military, and not in his capacity as commander-in-chief of the army of the State.

Military Subordinate to Civil Authority. The military cannot in in any state of case take the initiative or assume to do anything independent of the civil authorities; and it must be at all times subordinate to the civil apthorities.

7. Liability of Soldier for Violation of Law.—A soldier, like a civilian, is liable to suit and prosecution in the civil and criminal courts of the State the same as any other citizen if he violates any of the laws of the State; and the fact that he does so in obedience to the orders of his superiors, will not furnish him any protection Soldiers Have Powers of Peace Officers.-A soldier in active service, whether acting under the orders of his superior officer or some civil officer of the State, has the same power as a policeman or sheriff to make arrests, disperse disorderly gatherings and preserve the public peace.

8.

9. A Soldier's Disobedience to Military Orders.-If a soldier is ordered by his superior officer to do an unlawful act, that is an act that a peace officer might not do, he must take the risk of refusing to obey the command or subject himself to suit or prosecution in the civil courts if he does.

10. Peace Officers-Powers Of.-The militia, acting as peace officers, have the right to arrest any person who has committed a felony, or is committing in their presence an act that constitutes a public offense, and the right to disperse, control and suppress riots or unlawful assemblies or bodies of men acting in concert for the purpose of, or that will have the effect of, intimidating, threatening, alarming, disturbing or injuring any person or molesting or destroying any property, with all the force and power necessary to accomplish these ends.

JAMES BREATHITT, Attorney General, JOHN F. LOCKETT, Assistant Attorney General, and JOHN GATES for the appellant.

R. W. LISANBY for the appellee.

OPINION OF THE COURT BY JUDGE CARROLL-Affirming.

The questions presented by this record relate to the power of the Governor to order into active service the militia of the State, and the civil rights and liabilities of militiamen while so engaged, as well as the subordination of the military to the civil authorities in the territory into which they are directed to go. These important questions come up in an action to recover damages for false arrest, brought by the appellee Smith, a

private citizen of Caldwell county, against the appellant Franks, McFarland, Cook, Kennedy and Gans, members of the State militia. During the trial, the action against Kennedy and Cook was dismissed without prejudice by the appellee, and the court peremptorily instructed the jury to return a verdict in favor of McFarland and Gans. After the action was thus disposed of as to these parties, it proceeded against the appellant Franks, and the jury assessed the damages against him in the sum of one thousand dollars. From a judgment upon this verdict Franks appeals, and from the order of the trial court directing a verdict in favor of McFarland and Gans the appellee Smith prepared but did not prosecute an appeal.

At the time and before the arrest complained of, Gans was captain of Company C, Third Infantry, Kentucky State Guards, and Franks was a sergeant, and Cook, McFarland and Kennedy were privates in the same company. In making the arrest of Smith, they were acting under the orders of superior officers in the military service, and independent of the civil authorities of Caldwell county. They did not report to or receive any directions from the sheriff or jailer of Caldwell county, or the mayor or marshal of the city of Paducah, or any other civil officer in the city of Princeton or the county of Caldwell, in which county they made the arrest complained of.

The separate answers of Franks, McFarland, Cook, Kennedy and Gans, which were substantially the same, admitted the arrest and detention of Smith by them, and in justification of their acts they set up that they were at the time regularly enlisted and duly qualified and acting members of Company C, Third Regiment Infantry, of the Kentucky State Guards, and members of a detachment of said regiment stationed at Princeton, in Caldwell county, Kentucky. That Captain Gans was under the command of E. B. Bassett, the duly appointed, qualified and acting major of said regiment, and Bassett as major had general command of the militia then in active service in Western Kentucky under orders from Augustus E. Willson, Governor of the Commonwealth and commander in chief of the militia of the State. That on the afternoon of the 26th of November, 1098, Captain Gans received information from Major Bassett that a movement or raid of armed men known as "night riders" was ex

pected to be made that night in the neighborhood of Hopson and Wallonia, in Caldwell county, and was ordered by him to detail a squad of men from his detachment into said neighborhood to prevent if possible any trouble resulting from such movement or raid. That pursuant to and in obedience to said orders, Gans detailed Franks, McFarland, Cook and Kennedy on such described duty, directing them that if during any unusual hour of the night they encountered men traveling the highways in numbers more than two, to halt them, receive their explanation for so traveling at such hours, and if deemed necessary to search them and if they were found carrying concealed weapons to arrest and bring them into camp at Princeton, to be thereafter turned over to the civil authorities of the county. That these orders were given by Gans, and obeyed by Franks, McFarland, Cook and Kennedy in the performance of their duty as members of the State militia, and in obedience to orders received from superior officers. That on November 27th, about midnight, Franks, McFarland, Cook and Kennedy, who were stationed on one of the public highways of Caldwell county, encountered the appellee Smith and five other men traveling on the highway, and after halting and searching them found in the buggy of Smith and one other of the party pistols, and in pursuance of their orders took them into camp at Princeton, permitting the other four travelers to go on their way. That they had no ill will or feeling against Smith, nor any real or fancied cause for having such feeling; nor did they mistreat or cause him to be mistreated except by arresting and delivering him to Captain Gans in pursuance to orders.

With respect to the evidence, it only seems necessary to say that Franks, Cook, Kennedy and McFarland, acting under the orders of their captain, arrested Smith some time after 10 o'clock at night as he was traveling on a public highway in company with five other persons in buggies, and that finding in the buggy in which he was riding a pistol owned by him, he was arrested and carried to Princeton, the headquarters of Captain Gans, and there kept in custody by Gans until the next morning when he was turned over to the civil authorities upon the unfounded charge of carrying concealed about or upon his person a deadly weapon, as this weapon was found not on his person but in the buggy. There is no evidence