PAY OF NATIONAL GUARD. Members of the National Guard are entitled to transportation to and from their home stations to the place of service when on duty, but not when on furlough. Denver, Colo., January 19, 1904. TO THE MILITARY BOARD OF THE STATE OF COLO- State Capitol. Gentlemen-In reply to your request for my opinion as to the claim of C. A. Smith, who, you inform me, is either a private or a non-commissioned officer in Company L, 1st Regiment, N. G. C., for $5.25 for transportation from Cripple Creek to Denver while on a furlough, I would say that I find no provision in the statutes for the paying by the State of transportation while officers or men are on furloughs. They are undoubtedly entitled to transportation to and from their home stations to the place of service, but if they desire to travel while on furloughs, they must do so at their personal expense. I am, Yours respectfully, N. C. MILLER, Attorney General and Ex-Officio Judge Advocate General. By HENRY J. HERSEY, Assistant Attorney General. PAY OF OFFICER OF NATIONAL GUARD. An officer of the National Guard, ordered on active duty, is entitled to the same pay as given an officer of the United States army of like grade, less 20 per cent. Denver, Colo., January 19, 1904. THE MILITARY BOARD OF THE STATE OF COLORADO, State Capitol. Gentlemen-I have your request for my opinion as to the pay to which Lieutenant W. R. Eaton is entitled. Your request for my opinion was not accompanied by any general or special orders of the Governor or commanding officer of the National Guard, so that I am unadvised as to how Lieutenant Eaton was ordered to report for duty, other than the statement contained in his protest to the board, October 26th, last, in which he states that his commission is that of a first lieutenant, and adjutant of the First Squadron, Cavalry. If he was ordered on duty as first lieutenant and adjutant of the First Squadron, Cavalry, then, under the statutes of this State, section 10, article V, of the National Guard Act, found in Session Laws of 1897, pages 200 and 201, he is entitled to the same pay as is a United States Army officer of like grade, less twenty per cent. the amount, which can be easily figured by the paymaster general of the National Guard. The above and foregoing opinion is also applicable to the claim for pay as regimental adjutant of H. M. Libby. Yours respectfully, N. C. MILLER, Attorney General and Ex-Officio Judge Advocate General. By HENRY J. HERSEY, Assistant Attorney General. PAY OF RETIRED OFFICERS. Retired officers of the National Guard, when ordered into active service, should receive the full pay of their rank. Denver, Colo., January 19, 1904. THE MILITARY BOARD OF THE STATE OF COLORADO, State Capitol. Gentlemen-In reply to your request for my opinion as to the pay of the retired officers of the National Guard, ordered upon duty, I would say that by section 10, of article 5, of the National Guard Act, found in Session Laws of 1897, pages 200201, the officers and enlisted men, when serving under orders of the Governor to prevent violation of the laws of the State, or to prevent or suppress riot and insurrection, etc., shall receive the same pay as is paid United States Army officers of like grade, less 20 per cent. It appears from copies of the orders of the Governor and of the commanding general of the National Guard, submitted to me, that Brigadier General B. F. Klee, retired, Brigadier General J. C. Overmeyer, retired, and Colonel J. E. Johnston, retired, were ordered to report for duty, and it also appears that they did report for duty and serve. The general order referred to is "General Orders No. 6." In the case of Brigadier General Overmeyer, he was relieved from duty on October 7th by special orders No. 268. All these orders referred to the parties so ordered to report for duty or relieved from duty, as the case may be, under their respective rank. The United States statute relating to the pay of retired officers of the United States ordered on duty is to be found in the 30th volume of the United States Statutes at large, at page. 978, section 7, and is as follows: "The President in his discretion may order on active duty such retired officers as he may see fit, other than in the command of troops, and officers so serving shall be entited to the full pay of their rank." In my judgment, when a retired officer is ordered into active service, he is entitled to receive the same pay while on duty as officers in the United States army of like grade, less twenty per cent., and I am assisted in this opinion by the opinion of General A. E. Bates, Paymaster General of the United States army, furnished me by General Klee in answer to inquiries on the matter made to him by General Klee, in which, after citing the United States statute above referred to, among others, General Bates says: "Under the above, a general officer, detailed as stated, would receive the active pay of his rank." I am, therefore, of the opinion that the amount of pay to which the officers above mentioned are entitled for active services is a mathematical question, to be ascertained by the paymaster of the National Guard upon the basis of pay of the United States army officers of like grade. It has been suggested that, where the officer remains on duty after it is known to him that the paymaster general of the National Guard has made up the pay roll allowing him less pay than that of his rank, it is a waiver of the right to full or statutory pay, and that the amount of pay is merely a matter of contract. In reply to this, I would say that the first duty of a soldier is to obey orders; he has not, like a private citizen, the right to cease work if dissatisfied with his pay, but must remain on duty until relieved by the orders of his superior; so that the fact of his remaining on duty is, in no sense, a waiver of his right to statutory pay, and his right to be paid is not a matter of contract, but a matter of statute. I am, Yours respectfully, N. C. MILLER, Attorney General and Ex-Officio Judge Advocate General. By HENRY J. HERSEY, CLAIM FOR DAMAGES BY SOLDIERS. The State assumes no obligation for loss of clothing of members of the National Guard while in service. Denver, Colo., February 15, 1904. HON. JAMES H. PEABODY, Governor of Colorado, State Capitol. Dear Sir-I return herewith the claims of members of company G, Pueblo, Colorado, for balance of pay due them, and, also, for clothing alleged to have been lost. If there is a balance of pay due them, it should be paid in due course of business. As to the loss of clothing, the State assumes no obligation as to such loss by members of the National Guard while in its service. It could be paid, if at all, only by an act of the Legislature. Respectfully, N. C. MILLER, Attorney General. SAFETY APPLIANCES IN MINES. The law establishing the bureau of mines, and the law regulating the construction, etc., of metalliferous mines, mills and metallurgical plants, are each constitutional, and amply sufficient to compel a compliance therewith by the managers thereof. Denver, Colo., February 8, 1904. HON. JAMES H. PEABODY, Governor of Colorado, State Capitol. Dear Sir-In reply to your inquiry as to whether the following improvements can be required and the changes enforced in the construction, equipment and operation of metalliferous mines. in this State, to wit: 1. The use of some suitable overwinding device. 2. The use of a set of chairs, placed in the gallows frame at a point that will insure the catching of the cage, if the cable is parted from the cage. 3. The testing of the safety clutches used on cages by some competent person at regular intervals; as recommended by the committee appointed by the Commissioner of Mines to investigate the recent Independence Mine disaster in Teller county, I desire to say that, in my opinion, these are all reasonable demands, and can be fully enforced under our present law. A portion of the present law was passed by the Tenth General Assembly, Session Laws 1895, page 206, and entitled "An act to create a Bureau of Mines, to define the duties of the Commissioner of Mines and provide for the government thereof, and making an appropriation therefor; and to repeal an act entitled 'An Act dividing the State of Colorado into metalliferous mining districts; and appointing an inspector of metalliferous mines, approved April 1, 1889, and portions of other acts in conflict herewith.'" This law was amended by the Twelfth General Assembly, Session Laws, 1899, page 277, but few important changes were made, excepting the insertion of a new section, numbered 20. The body of the act, as amended, after making provision for the location of the principal office, the appointment of a ' commissioner and two inspectors, further provides as follows: "Sec. 4. It shall be the duty of the inspectors to examine and report to the Commissioner the condition of the hoisting |