or purchase of stationery. It must, therefore, obtain its printing and stationery and supplies by requisitions upon the office of the Secretary of State, the same as other departments of the State administration.

INSURANCE DEPARTMENT.

This department is controlled, first: Under an act approved and in force February 3, 1883, Laws of 1883, page 212, and the statutes passed subsequent thereto, and found in volume 1, M. A. S., at page 1327, and volume 3, at page 643.

I am unable to find in any of these statutes any authority for the Insurance Department to act independently in the procuring of printing and supplies and stationery. The act creating this department, and the statutes amendatory thereto, do authorize the payment of all expenses incurred by it, out of the fees collected. But, surely, no one will contend that because those items are to be paid out of the fees of the office, after they are covered into the treasury, that this is authority to the Auditor or Insurance Commissioner to act independently of the statute requiring all public printing, stationery and supplies to be obtained under contract, and by requisitions upon the Secretary of State. The source of payment has nothing to do with the construction of the chapter in relation to public printing and supplies. Chapter 103 nowhere says that it shall be applicable only to those supplies and stationery and printing which are paid out of a particular fund, but it relates to all departments, regardless of the fund out of which the payment is made.

The necessity and importance of a statute requiring printing, stationery and miscellaneous supplies for the several departments of State to be obtained under contract, has been forcibly impressed upon the public by numerous and repeated attempts at overcharge. The economical purchase of supplies requires that a contract be let for printing, stationery and miscellaneous articles upon competitive bids and the due enforcement of such contract by a rigid adherence to the contract.

The history of our own State shows that where no restrictions are imposed, prices are paid for articles and for printing far in excess of any charges made to individuals or corporations, and without the protection afforded by the statute and the laws referred to, there would be no restrictions where the heads of departments paid excessive and extortionate charges for printing and stationery.

It was undoubtedly the intention of the Legislature that every department of the State should come within the requirements of chapter 103, volume 3, M. A. S., and no reason can be assigned why they should not come within its terms.

The reason which I have heard most frequently assigned why either of these departments should not be governed by that

chapter is, that the expenses are paid out of a particular fund belonging to that office.

But it will be conceded that the fees of the Insurance Department and the military poll tax of the Military Department must also be paid into the treasury of the State of Colorado, and should be paid out only upon proper vouchers presented to the Auditor and warrants drawn by him upon the Treasurer. It is nowhere provided that either of these departments shall first pay their own expenses and then cover the balance of the fund into the treasury, and even if that were true, it will not be admitted that the statute requiring all printing to be done by contract, does not apply.

We therefore advise you that all printing must come within your department, and that the Auditor will not be justified in drawing warrants to pay bills which have not been regularly and legally incurred as defined by this opinion.

Respectfully submitted,

N. C. MILLER,

Attorney General.

NATIONAL GUARD.

The National Guard in this State is formed by legislative enactment, and not by executive order.

It must consist of one brigade, under command of a brigadier general, who is appointed by the Governor.

The component parts of the brigade may be changed from time to time by the Governor, upon the advice and approval of the military board, provided the limits of the statute are not exceeded.

Denver, Colo., July 16, 1904.

HON. JAMES H. PEABODY,

Governor of Colorado,

State Capitol.

Dear Sir-I have your request for my opinion as follows: "In making an examination of the laws under which our National Guard is formed I am somewhat confused in definitely determining whether such formation was brought about by legislative enactment or by an executive order. For instance, I find in the law that 'the brigade' shall be composed of certain units of the National Guard; again I find that the staff of the brigadier

general shall consist of certain commissioned officers and again that the military board shall be composed of the Governor, Attorney General, brigadier general, etc. The question arises in my mind as to whether, if these several organizations and officials were created by executive order, if an executive order can disperse them and cancel their commissions, or whether it requires legislative action to bring such a change about.

"I enclose several communications from the Adjutant General's office bearing upon this subject, and in perusing them these matters mentioned have been brought to my mind. Will you please, therefore, examine the question and let me know officially if I am authorized to take any action under the law for making the change in the present organization of the National Guard?”

In reply I will say that the formation of the National Guard of this State was brought about by legislative enactment and not by an executive order.

The present National Guard act is chapter 84 of the Revised Supplement of M. A. S. See 3 M. A. S. (Revised Supplement), Secs. 3022-3135.

By Sec. 2, Art. III, of the National Guard act, being Sec. 3032, M. A. S., you will find that it is provided that "in time of peace the National Guard shall consist of the staff of the commander-in-chief, a quartermaster and commissary general's department, a medical department, one brigade under the command of a brigadier general, and a retired list."

By this section you will see that the General Assembly has required that there shall be a National Guard consisting of a brigade under the command of a brigadier general.

Section 5 of this same article, which states of what the brigade shall consist, was amended by the General Assembly of 1903 and the amendment will be found as section 3035 of the Revised Supplement of M. A. S., and is as follows:

"The brigade shall consist of not more than one signal corps, one squadron of cavalry, one light battery of artillery, and two regiments of infantry, each of which shall be organized in such manner and shall consist of such officers, non-commissioned officers and enlisted men as the Governor of the State, upon the advice and approval of the military board, may from time to time prescribe; provided, that the organization of the said signal corps, squadron of cavalry, light battery of artillery, and two regiments of infantry shall at all times conform, as nearly as the conditions of the service will justify, to the organization of similar bodies in the army of the United States; provided, no part of the National Guard shall be taken outside of the State at any expense to said military fund, or to the State.”

You will see from this that the General Assembly has definitely provided that a brigade shall consist of not more than the component parts designated, but that each of such component parts shall be organized in such manner, and shall consist of

such officers, etc., as the Governor, upon the advice and approval of the military board, may from time to time prescribe. This section gives you the authority, upon the advice and approval of the military board, to change the organization of the component parts of a brigade, provided the brigade is not increased beyond the limits prescribed by this section. But I find no warrant or authority in the statutes or Constitution of this State for you, by executive order, to do away with the brigade formation. I am therefore of the opinion that, in time of peace, the National Guard must have a brigade under the command of a brigadier general.

I see no difficulty in that the law provides for a brigade and also for the staff of the brigadier general, and again that the military board shall be composed of the Governor, Attorney General, brigadier general, etc., as suggested by your letter. The military board has certain duties to perform, prescribed by the National Guard act above cited, such as auditing certain accounts and prescribing such regulations, not inconsistent with the law, as will increase the discipline and efficiency of the National Guard. The staff of the brigadier general provided for by Sec. 3036, M. A. S. (Revised Supplement), has nothing to do with the military board, and that staff is appointed and commissioned by the Governor on the recommendation of the brigadier general, and the brigadier general, by section 3 of article 7 of our Constitution, which provides that "the Governor shall appoint all general, field and staff officers and commission them," is also appointed and commissioned by the Governor, so that no confusion whatever should arise.

While, therefore, I am of the opinion that you can not do away with the brigade formation, yet I am also of the opinion that, under section 3035, M. A. S. (Revised Supplement), there may be changes made in the component parts of the brigade upon the advice and approval of the military board.

Respectfully

N. C. MILLER,

Attorney General.

By HENRY J. HERSEY,
Assistant Attorney General.

PAY OF NATIONAL GUARD.

An officer of the National Guard should be allowed 10 per cent. increase in salary for each five years' service, less 20 per cent.

Denver, Colo., January 23, 1904.

THE MILITARY BOARD OF THE STATE OF COLORADO, State Capitol.

Gentlemen-In reply to your request for my opinion as to the claim of Captain H. D. Humphrey for additional pay, I would say that it appears from the statement of Captain Humphrey that he has served over fifteen years as an officer of the United States Army, and that period of service would entitle him, if still in the service of the United States, to a thirty per cent. increase in his pay.

The evident purpose of ten per cent. increase in pay for each five years' of service, is that an officer is more valuable to the service by reason of his increasing experience; and our statute expressly provides that all commissioned officers shall receive the same pay as is paid the United States Army officers of like grade, less twenty per cent.

I am of the opinion that Captain Humphrey's claim for extra pay, by reason of his long service, should be allowed; and the efficiency of the National Guard will be thereby increased, by encouraging the enlistment of men of experience in the regular service who may be honorably discharged from the regular army. I am,

Yours respectfully,

N. C. MILLER,

Attorney General and Ex-Officio Judge Advocate General.

By HENRY J. HERSEY,

Assistant Attorney General.