Military Code (L. 1898, ch. 212), § 52.

judge-advocates, medical officers, veterinary surgeons, and chaplains, must have served one year immediately preceding their appointments, in the national guard or naval militia of this state, as the case may be, except that those in the naval militia may be credited with service in the United States navy or revenue marine, or if not in active service at the time of their appointment, they must have had at least one year's service in the national guard or naval militia of the state or the army or navy of the Unitea States, or both combined. Staff officers of the major-general, brigadier-generals, and commodore, except judge-advocates, surgeons and engineers must either be selected from the commissioned officers in active service in the national guard of naval militia of this state, who for one year immediately preceding their appointments, have been in active service in such national guard or naval militia as commissioned officers, or if not in active service at the time of their appointment, they must have had at least two years' previous service in the active militia of this state, or of the army or navy of the United States, or both combined, as a commissioned officer. A judge-advocate must be a counsellor-at-law of the supreme court of this state of at least ten years' standing if of the grade of lieutenant-colonel, of at least. five years' standing if of the grade of major or lieutenant-commander; and of at least three years' standing if of the grade of lieutenant of the naval militia. Surgeons and assistant surgeons must be graduates of an incorporated school of medicine and of at least fifteen years' practice if of the grade of colonel; of at least ten years' practice if of the grade of lieutenant-colonel; of at least five years' practice if of the grade of major or lieutenantcommander; of at least three years' practice if of the grade of captain or naval lieutenant; and of at least two years' practice if of the grade of first lieutenant or lieutenant, junior grade. An engineer officer of the national guard must have been educated as a military or civil engineer. A lieutenant-commander as engineer officer shall have been a commissioned marine engineer in the service of the United States, or shall hold a United States marine license not below the grade of chief engineer of ocean steamers of at least three thousand five hundred tons burthen. A lieutenant and a lieutenant junior grade, as engineer officers. shall have been a commissioned marine engineer in the service. of the United States, or shall hold a United States marine license not below the grade of chief engineer of inland steamers of at

Military Code (L. 1898, ch. 212), §§ 53, 55.

least one thousand and five hundred tons burthen respectively. An ensign as engineer officer shall be a recognized steam engineer or machinist of at least three years' standing. A signal officer must have a knowledge of signalling, telegraphy, topography and map making. A veterinary surgeon must be a graduate of an incorporated school of veterinary science. A chaplain must be a regularly ordained minister of some religious denomination. (Amended by L. 1900, ch. 746, L. 1901, ch. 314, and L. 1903, ch. 76, in effect March 25, 1903.)

$53. Examinations. Before being commissioned, every officer must have passed a satisfactory examination before a board as to his knowledge of military or naval affairs and general knowledge and fitness for the service, and anyone failing to pass such examination shall not be eligible for an office in the militia of the state for the period of one year from the date of such failure. Judge-advocates, medical officers and veterinary surgeons shall be examined as to their general and professional knowledge and fitness for the service only. The following are exempt from examination: general officers, the commodore or captain of the naval militia, officers who within thirty days after the expiration of their term of office or discharge, are reappointed to the position they previously held; chaplains and those mentioned in section seventy-eight of this chapter. (Amended by L. 1900, ch. 746, L. 1901, ch. 314, and L. 1903, ch. 76, in effect March 25, 1903.)

§ 55. Appointed officers. The major-general of the national guard shall be appointed by the governor with the consent of the senate; during the time that the senate is not in session, the governor may make such appointment, subject to subsequent confirmation by the senate. The commodore or captain of the naval militia shall be appointed by the governor. The officers on the staff of the major-general commanding the national guard, of the brigadier-generals, and of the officer commanding the naval militia, officers of the signal corps, the extra officers allowed to regiments, battalions and squadrons for staff duty, surgeons and assistant surgeons of regiments, battalions and squadrons not part of regiments, assistant surgeons of separate troops, batteries, separate companies and divisions, veterinary surgeons, and chaplains, shall be appointed by the governor upon the recommenda

Military Code (L. 1898, ch. 212), §§ 56, 61.

tion of their immediate commanding officers, except the navigating lieutenant and the gunnery officer of a battalion of the naval militia. When the governor desires to create new organizations, he shall have the power in the first instance to appoint all the officers necessary to commence and complete such organization. (Amended by L. 1900, ch. 746, L. 1901, ch. 314, and L. 1903, ch. 76, in effect March 25, 1903.)

§ 56. Elected officers.- Brigadier-generals shall be chosen by the field officers of the line of the brigade and the commanding officers of separate troops, batteries and separate companies, not part of a regiment, battalion or squadron, but in such brigade, or may be appointed by the governor whenever he shall so determine and direct. If any vacancy or vacancies exist in the position of field officer of the line, the ranking company or troop commander or commanders of the organization in which the vacancy or vacancies exist, shall be entitled to vote. Colonels, lieutenantcolonels and majors, commanders, lieutenant-commanders, navigating lieutenants and gunnery officers of battalions of the naval · militia, except as otherwise provided in the preceding section, shall be elected by the field officers of the line, and the commissioned officers of the companies or divisions, of the regiment, battalion or squadron not part of a regiment. Captains and lieutenants and ensigns of troops, batteries, companies and divisions, shall be elected by the members of the respective troops, batteries, companies or divisions, who shall have performed during the period of their membership, not exceeding twelve months preceding the election, at least sixty per centum of the duty required of their troop, battery, company or division and who shall not be indebted at the time to the civil association of such troop, battery, company or division, organized as provided in this chapter. (Amended by L. 1903, ch. 76, in effect March 25, 1903.)

§ 61. Supernumerary and retired officers.- Commissioned officers who shall be rendered surplus by reduction or disbandment of organizations or in any manner provided by this chapter now or hereafter, shall be withdrawn from active service and placed upon the supernumerary list. The governor may, upon the recommendation of the commanding officer of the national guard or of the naval militia, respectively, detail supernumerary or

Military Code (L. 1898, ch. 212), § 63.

retired officers for active duty, in which case they shall rank in their grade from the date of such detail, and he may relieve them from such duty and return them to their respective supernumerary or retired list at his discretion. (Amended by L. 1903, ch. 435, in effect May 7, 1903.)

§ 63. Retirement and discharge. Any officer of the active militia who has reached the age of sixty-four years may be placed upon the retired list by the governor. Any commissioned officer who shall have served in the same grade for the continuous period of ten years, or in the military or naval service of the state as a commissioned officer for fifteen years, or in case of an officer of the naval militia retiring such service may have been in the naval service of the state and the United States combined for fifteen years, provided at least ten years of such service shall have been in the state, may, upon his own request, be placed upon the retired list and withdrawn from active service and command by the governor. Any commissioned officer who has become or shall hereafter become disabled, and thereby incapable of performing the duties of his office, shall be withdrawn from active service and command and placed on the retired list. Any commissioned officer who has become, or who shall hereafter become unfit or incompetent, and thereby incapable of performing the duties of his office, shall be discharged upon the recommendation of his commanding officer or the recommendation of an inspecting officer. Such retirement or discharge shall be by order of the governor, and, in either case, shall be subject to the provisions of this section. Before making such order, a board of not less than five commissioned officers, one of whom shall be a surgeon, shall be appointed, whose duty it shall be to determine the facts as to the nature and cause of incapacity of such officer as appears disabled or unfit, or incompetent, from any cause, to perform military service, and whose case shall be referred to it. No officer, whose grade or promotion would be affected by the decision of such board, in any case that may come before it, shall participate in the examination or decision of the board in such case. Such board is hereby invested with the powers of courts of inquiry and courts martial, and whenever it finds an officer incapacitated for active service, shall report such fact to the governor, stating cause of incapacity, whether from disability, unfitness, or incompetency, and if he approves such finding, such officer shall be

Military Code (L. 1898, ch. 212), § 64.

placed on the retired list or discharged, as provided in this article. The members of the board shall, before entering upon the discharge of their duties, be sworn to an honest and impartial performance of their duties as members of such board. No officer shall be placed upon the retired list or discharged by the action of such board, without having had a fair and full hearing before the board, if upon due notice he shall demand it. It shall not be necessary to refer any case for the action of such board arising under this section, unless the officer designated to be placed upon the retired list or discharged, shall within twenty days after being notified that he will be so retired or discharged, serve on the adjutant-general a notice in writing that he demands a hearing and examination before such board. Boards for the national guard shall be appointed by the governor for officers above the grade of colonel, and by commanding officer of the national guard for officers below the grade of brigadier-general; boards for the naval militia shall be appointed by the governor, and shall be composed of officers of such grade or rank as he may determine. The governor may withdraw from active service and command and place upon the retired list any officer who has been twentyfive years in the active service of the national guard, on the recommendation of the commanding officer of his organization, the commanding officer of the brigade, and the commanding officer of the national guard. Vacancies created by the operation of

this section shall be filled in the same manner as other vacancies. (Amended by L. 1901, ch. 314, and L. 1903, ch. 76, in effect March 25, 1903.)

§ 64. Examination and discharge of officer. The governor may, whenever he may deem that the good of the service requires it, order any commissioned officer before a board of examination, to consist of not less than three nor more than five general or field officers, which is hereby invested with the powers of courts of inquiry and courts martial, and such board shall examine into the moral character, capacity and general fitness for the service, of such commissioned officer, and record and return the testimony taken and a record of its proceedings. If the findings of such board be unfavorable to such officer and be approved by the governor, he shall be discharged from the service. No officer whose grade or promotion would in any way be affected by the decision of such board, in any case that may come before it, shall