that Smith had theretofore or was then about to commit a public offense of any kind. In company with his neighbors who had attended a lodge of which they were members, he was on his way home at the time of his arrest. There is some evidence that he was treated in an abusive and insulting manner by the soldiers who arrested him, and that he suffered on account of exposure to the cold of the night. But, for the purposes of this case we will not go into the question of any misconduct on the part of the arresting officers, preferring to treat the case as the facts justify us in doing as if Smith while peacebly and rightfully traveling on the public highway was arrested and detained without authority, unless warrant for his arrest and detention sufficient to justify the militiamen can be found in the orders that were given to them by their superior officer. We will also assume that the arrest and detention of Smith was made in strict obedience to orders received by Franks and his comrades from their superior officer, Captain Gans; and that Captain Gans received the orders that he gave to Franks and the privates from his superior officer, Major Bassett; that Major Bassett was acting in obedience to and under the authority of the Adjutant General of the State; and that the Adjutant General was acting under orders from the Governor of the State. In short, we will take it for granted that the militiamen were regularly ordered into active service by the Governor of the State, and that everything the officers and privates did was strictly in obedience to orders issued by their superior officers and received by them in accordance with the laws and regulations governing the State militia.

Treating the facts in this way, it is the contention of counsel for Franks that a soldier in active service is not amenable to the civil authorities for his reasonable acts performed in strict obedience to the orders of his superiors; and that in an action against him for false arrest or for false imprisonment or detention, he can depend upon his military orders for protection, and if they were reasonable and he did not exceed the authority conferred by them, they are a complete justification for his conduct. While counsel for the appellee Smith insists, first: That the Governor has no authority in law to order into active service the State militia, unless requested so to do by the civil authorities of the county, city or town into which they are directed to go and operate, and so every

thing they did was in violation of law. Second: That a soldier, although regularly called into active service and acting within the strict line of his military orders, has no power to make an arrest or to do any act that a private citizen might not do, and, therefore, he can make no defense that will justify his acts except such a defense as any private citizen might make if sued upon a similar cause of action.

Considered from the standpoint of counsel, two principal questions naturally suggest themselves, First: Has the Governor in the exercise of the authority conferred upon him by law and without being requested so to do by a civil officer of any city, town or county, the power to call out and order into active service the State militia, and direct their movements and operations without placing them under the orders or control of the civil authorities or any of them in the territory into which they are sent? Second: Are members of the State militia when acting in obedience to orders given to them by a superior officer liable in a civil action for making an arrest or doing any other reasonable act they are commanded by a superior officer to do?

Section 69, of the Constitution, declares:

"The supreme executive power of the Commonwealth shall be vested in a chief magistrate, who shall be styled the 'Governor of the Commonwealth of Kentucky.'"

Section 75 provides that:

"He shall be commander-in-chief of the army and navy of this Commonwealth, and of the militia thereof, except when they shall be called into the service of the United States; but he shall not command personally in the field, unless advised so to do by a resolution of the General Assembly."

And section 81 commands that:

"He shall take care that the laws be faithfully executed."

Section 2672, of the Kentucky Statutes, in the chapter relating to the State militia, reads:

"It shall be the duty of the Governor, whenever he may deem it necessary for the safety or welfare of the Commonwealth, or when any actual or threatened invasion, insurrection, domestic violence or other danger to the public interest makes it necessary to employ military force in aid of the civil power of the government for the enforcement of the law, or to preserve the peace and the

security of the rights and lives or property of the citizeus, to order into active service so much of the State Guard or military force of the Commonwealth as he may deem necessary. The State Guard can be ordered into active service only by the Governor."

Section 2673, reads:

"The military shall be at all times and in all cases. in strict subordination to the civil power."

And section 2674:

"When in active service the Governor may direct the commanding officer of the military force to report to any one of the following named officers of the district in which the said force is employed-Mayor of a city, sheriff, jailer or marshal."

We find from these sections of the Constitution and statute that the Governor is the chief civil officer of the Commonwealth and is charged with the duty of taking care that the laws of the State are faithfully executed. That he has authority to order the militia into active service whenever or wherever he may deem it necessary to secure the safety or welfare of the Commonwealth or to preserve the peace or lives or property of citizens of the State. That the militia can only be ordered into active service by him, but that it shall be at all times in strict subordination to the civil authorities. It will be observed that there is no limitation either in the Constitution or statute upon the power vested in the Governor to order into active service the militia of the State or to direct into what locality they shall go or operate. He is made the sole judge of the necessity that may seem to demand the aid and assistance of the military forces of the State in suppressing disorder and restoring obedience to the law. The presumption of course is that he will not exercise this high power unless it becomes necessary to maintain peace and quiet and protect the life or property of the citizen, after the local civil authorities have shown themselves unable to cope with or control the situation. But to his good judgment and sound discretion. the law has left the final decision as to whether the military arm of the State shall be ordered into active service. If he acts wisely and prudently, well and good. If he acts hastily or unwisely or imprudently, there is no power in the courts to control or restrain his acts. Any attempt on the part of the judicial department of the State so to do would be an interference by one depart

ment of the government with the power lodged in another department, and a violation of section 27 of the Constitution of the State, providing:

"The powers of the government of the Commonwealth of Kentucky shall be divided into three distinct departments, and each of them be confined to a separate body of magistracy, to-wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another."

And section 28, reading:

"No person, or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances. hereinafter expressly directed or permitted."

The power thus lodged in the Governor is extensive, unrestrained and subject to abuse. But all power is subject to abuse. If the fact that power might be abused was sufficient to deny the granting of it, there could be no final authority and everything must be referred back to the people the source of all power. Of course, a system of government that was denied the authority to take final action would be too weak and inefficient to maintain itself or afford due measure of security and protection to the people who created and established it; and in many instances it would entirely fail to accomplish the purpose of its existence. The power to call out the State militia was vested in the Governor, the chief executive officer of the State, for the wise and wholesome purpose of enabling him to carry into effect the mandate of the Constitution that he must "take care that the laws be faithfully executed." If this power was not lodged in him, then this provision of the Constitution would be an idle and meaningless phrase, because although charged with the duty of taking care that the laws of the State should be faithfully executed, he would have no authority to enforce the obligation imposed upon him. It is only through and with the aid of the State militia that he can make effective the authority conferred by the Constitution, and it was for this purpose that the Legislature enacted section 2672, of the Kentucky Statutes, before cited. The power conferred by this section is ample to meet every emergency that may present itself, and it gives to the chief executive of the State the fullest authority to call to his assistance in any contingency that may arise a force sufficient to quell disorder and restore peace.

Under the sanction of this statute he may act independently of any other civil authority if he desires to do so, or be may act in conjunction with the other civil authorities. He may on his own initiative order out the State militia, or he may wait until requested so to do by the local authorities in the community in which they are needed. He may place the militia at the disposal of the civil authorities, or he may through military channels control and direct, within lawful bounds, their movements and operations. Which of these courses he will pursue, he alone is to judge. The Constitution and statute have given him this power, and we could not if we desired abridge it. Ela v. Smith, 5 Gray (Mass.), 121, 66 Am. Dec., 356. For his conduct in ordering out and controlling the movements and operations of the State militia, the Governor is answerable only at the bar of public opinion, unless it be that abuses might warrant impeachment proceedings. It can not for a moment be entertained with the Governor must delay action until requested by the local authorities. This limitation upon his constitutional duty would in many instances deny him the right to take prompt and decisive action to suppress threatened or actual disorder or violence and enforce obedience to the law. It would interfere with the express authority conferred upon him by the statute and would in many instances and in many places be disastrous to the peace and welfare of the State. Primarily, the enforcement of the law is with the local civil authorities, but at times they are too weak to control the lawless elements that exist in every society, and at other times they might be in sympathy with the forces who want to take the law into their own hands. But, whatever the reason that may exist for the failure or inability of the local civil authorities to suppress violence and disorder, when it comes to pass that they cannot or will not do it, then it is not only the right but the plain duty of the Governor to act. Ours is a government of law. Under its authority and through its agencies alone wrongs must be redressed and rights protected. Unless this were so, there would be no assurance of peace or quiet for the law abiding and order loving who constitute so large a part of our people. The life and the property of the citizen would be insecure, and the lawless, reckless and violent would be at liberty to exercise at will their disregard of civil authority. In every age of the world and in