If these be the facts, in my opinion the action of the Governor of Kansas was without authority of law, and Order Numbers 80 was a proper and legal exercise of the power of the Secretaryresident of the United States.

By the second section of the act of July 22, 1861, the volunteers accepted by the President are made 'subject tot he rules and regulations governing the Army of the United States," and they are to be formed "by the President into regiments of infantry, with the exception of such numbers of cavalry and artillery as he may direct, &c., and to be organized as in the regular service." The same section designates the officers of these regiments and privates further for their organization.

Among the rules and regulations governing the Army of the United States, to which these volunteers are thus subjected, are the Rules and Articles of War, one of which (the 11th) declares that a commissioned officer shall not be discharged the service but by order of the President of the United States, or by sentence of a general court-martial. (Bright. Dig., 74.) This rule is as applicable to the commissioned officers of volunteer mustered into the service of the United States under the act of July 22, 1862, as it is to commissioned officers of the Regular Army. If the action of the Governor of Kansas in deposing Colonel Weer was intended to discharge him from the service, it was directly in the face of this rule, and is of course utterly illegal.

But if it was only intended to remove him from the command of the Fourth Regiment of Kansas Volunteers, it was not less illegal. For that regiment, having been accepted by the President and mustered into the service of the United States, was under the command of the President of the United States, as Commander-in- Chief, and not under the command of the Governor of Kansas. A loose idea seems to prevail in some quarters that the Governor of Kansas. A loose idea seems to prevail in some quarters that the Governors of the States have the right to control the organizations of the troops from their respective States, even after they are received into the service of the United States, and I presume it was under this impression that the Governor of Kansas attempted to interfere with the organization of the Fourth Regiment in the present instance. If so, he was greatly mistaken. It is true that by the constitutions of most, if not all, of the States, the Governor is made commander-in-chief of the militia, but the remains commander-in-chief only until the militia are called into the actual service of the United States, when, by the national Constitution (Art. II, sec. 2), the President becomes their Commander-in-Chief. It is not necessary to consider whether any distinction exists between the militia and volunteers accepted under the act of July 22, 1861, since in neither case are the troops in the service of the United States less under the command of the President, and none of the constitutional reservations in favor of militia will help the claim of the Governor of a State to interfere with the organization of a regiment from his State either by removing its officers or consolidating it with other troops after it has entered the national service. Those reservations are found in the seventeenth clause of Section 8, Article I, of the Constitution, which confers on Congress the power "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States, respectively, the appointment of the officers and the authority of training the militia according to the discipline prescribed by Congress." But even if the right of the Governor, under the laws of the State he represents, to appoint the officers and train the militia be ungues-