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2046. Proclamation for election.

SEC. 2046. A proclamation of the call of such election, made by the officer calling it, at the place of rendezvous, is a sufficient notice.

2047. Commander-in-chief may assign volunteers to companies or battalions already in active service.

SEC. 2047. The commander-in-chief has authority, if he deem it expedient, to direct that a portion of the volunteers so presenting themselves be assigned to companies or battalions already in active service whose numbers are less than the full complement.

2048. Organization and command of troops from different brigades.

SEC. 2048. Where troops are called into active service from different brigades, and the number so called are not more than sufficient to constitute one complete brigade, the commander-in-chief must so organize them, and must designate the particular brigadier-general to command it.

2049. When draft may be ordered.

SEC. 2049. If the number of volunteers presenting themselves at the place of rendezvous is insufficient to satisfy the call of the commander-in-chief, the brigadier-general of the brigade in which such call is made must promptly proceed to draft from the eurolled militia of his brigade a sufficient number of men to satisfy the call, and this draft must be made by putting the names of all the enrolled militia of the county or counties from which the order directs the forces to be raised into a box, and drawing therefrom a sufficient number of names to satisfy the call.

2050. Who to superintend draft.

SEC. 2050. The major-general must be present and superintend the drafting of the enrolled militia under any call by the commander-in-chief; but his presence is not necessary to give validity to the proceedings. In case of the absence or inability of the brigadier-general, the officer next in rank of the brigade, or, in default of any officer of that brigade for duty, the major-general, or in his default, the commander-in-chief, must designate some other officer to perform that duty.

2051. Persons drafted to rendezvous.

SEC. 2051. The persons drafted must be summoned by some officer appointed for that purpose by the brigadier-general in the manner prescribed by law for the summoning of witnesses in civil cases, the time and place of rendezvous, as ordered by the brigadier-general, being stated in the summons.

2052. Election of officers.

SEC. 2052. As soon as a sufficient number of drafted men have appeared at the rendezvous to form a company or companies, they must proceed to the election of their company officers.

2053. Refusing to rendezvous, penalty for.

SEC. 2053. Any member of the national guard who neglects or refuses to rendezvous when ordered out by the commander-in-chief is guilty of disobedience of orders, and may be tried and punished by a court-martial; and any member of the enrolled militia who refuses or neglects to rendezvous when drafted is subject to a penalty of not less than fifty nor more than three hundred dollars, to be recovered by an action brought by the district attorney, in the name of the people of the state, upon the certificate of the officer appointed

to make the draft, before any court of competent jurisdiction in the county from which such person was drafted, and the fine recovered must be paid into the state treasury to the credit of the general fund.

2054. Companies, how attached.

SEC. 2054. Any company of the enrolled militia drafted and organized may, by direction of the commander-in-chief, be enrolled and mustered into any battalion of the national guard having less than eight companies.

2055. Drafted men may be enrolled in existing companies.

SEC. 2055, Drafted men of the enrolled militia not organized into companies may, at the discretion of the commander-in-chief, be enrolled and mustered into any existing company of the national guard or enrolled militia not having the full number authorized by law and which has already been called into active service.

2056. Substitutes.

SEC. 2056. Any person called or drafted into service may furnish as a substitute any person fit for military duty who has not been called or drafted into

service.

2057. Same.

SEC. 2057. When any person drafted for service offers, at or after the time of rendezvous, a suitable substitute, and such substitute consents in writing to subject himself to all the duties, fines, forfeitures, and punishments to which his principal would have been subject had he personally served, he must be accepted by the officer making such draft.

2058. Same.

SEC. 2058. The person whose substitute is so accepted is not subject to draft during the term of service of the substitute.

2059. Rules governing conduct of troops when called out to suppress insur

rection, etc.

SEC. 2059. The conduct of troops when called out to suppress an insurrection or rebellion, to disperse a mob or enforce the laws, is provided for in section seven hundred and thirty-one of the Penal Code.

2060. Duration of commissions of officers called into actual service.

SEC. 2060. The commission of any officer called into active service continues until he is discharged by the order of the commander-in-chief.

2061. Vacancies occurring in actual service, how filled.

SEC. 2061. All vacancies of officers and non-commissioned officers in active service must be filled by appointment or promotion; the first by the commanderin-chief, and the second by the commanding officer of the battalion or of the company, in case such company forms no part of any battalion.

2062. Same.

SEO. 2062. In filling vacancies of commissioned officers, the commander-inchief must, as a general rule, promote by seniority, or appoint on the recommendation of their superior officers, those in active service, and in any case of departure from this rule the commander-in-chief must report his reasons for such departure to the senate.

2063. Same, for personal bravery in battle, etc.

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SEO. 2063. The commanding officer of troops in active service may nominate

any vacancy for personal bravery or service in siege or battle, and if the gov

ernor commission some other person than the one so nominated, he must report his reasons to the senate; and if the senate in either of the foregoing cases disapprove of the reasons given, the commission so given is vacated, and the governor must immediately proceed, with the advice and consent of the senate, to fill such vacancy.

2064. Rules to govern militia when in actual service.

SEC. 2064. The rules and regulations established by congress for the government of the army of the United States are applicable to and govern the militia of this state when in active service.

2065. Pay of officers and privates when in actual service.

SEC. 2005. Officers and privates, while on active duty in the service of the state, receive the same pay as the officers and privates of the United States army of similar grade serving on the Pacific coast; the same to be audited by the board of military auditors, upon the pay-roll properly made up and signed by such officer.

2066. Pay of officers when detailed on special duty.

SEC. 2066. When an officer is detailed for special duty in any matter relating to the national guard, or care of state military property, by order of the commander-in-chief, he must be allowed pay proper, and such reasonable traveling expenses as the board of military auditors may allow, upon sworn vouchers, showing actual expenditures.

CHAPTER IV.

COURTS MARTIAL AND OF INQUIRY.

2076. Who may appoint courts-martial.

SEC. 2076. The following officers may appoint courts-martial:

1. The commander-in-chief for the trial of general officers, and all officers of the staff of the commander-in-chief.

2. The major-general, for the trial of all staff-officers of the division and brigades, and for the field-officers of battalions and regiments.

3. Brigadier-generals, for the trial of officers and soldiers in their respective brigades.

4. Commanding officers of regiments and battalions, for the trial of all enlisted men of their respective commands. Commanding officers of batteries or of unattached companies, for the trial of all enlisted men of their respective commands. For the trial of enlisted men, the commanding officer of each brigade, regiment, battalion, or unattached company may, at any time, appoint a regimental, battalion, or company court-martial, to consist of one officer whose rank is not below that of captain, or in an unattached company, that of

first lieutenant.

5. The officer appointing said court shall fix the day on which it shall convene, and when convened, the court may adjourn from time to time as shall become necessary for the transaction of business; but the whole session of the court, from the day on which it shall convene until its dissolution, shall not exceed three weeks, and in case any vacancy shall happen in the court, or a new court shall be required, the officer ordering the court, or his successor in command, may fill such vacancy or order a new court.

6. The officer constituting such court shall, before he enters on his duties as such, take the following oath: I, do swear (or affirm) that I will

well and truly try and determine, according to evidence, all matters between the people of the state of California and any person or persons who may come before the regimental (or battalion) court-martial to which I have been appointed; and such oath shall be taken by him before a justice of the peace of the county in which he resides, or a field-officer of his regiment or battalion, and it shall be the duty of such justice of the peace or field-officer to administer the oath without fee or reward.

7. Such court shall direct a non-commissioned officer, or other fit person or persons to be by him designated, to summon all delinquents and parties accused to appear before the court at a time and place to be by him appointed, which service shall be personal or by leaving such summons at the residence of such delinquents and parties accused.

8. Such non-commissioned officer, or other person or persons so designated, shall make the like returns, and with like effect as commissioned and non-commissioned officers are authorized and required to make in cases of warning to a company or regimental parade, and shall be subject to the like penalties for neglect of duty.

9. The court, when organized, shall have the trial of all offenses, delinquencies, and deficiencies that occur in the regiment or battalion for which it shall have been appointed, and also of any that occur in the separate troops or batteries attached to the same brigade, and the said court shall have power to impose and direct to be levied all the fines or penalties to which enlisted men are declared to be subject by the provisions of this chapter.

10. The proceedings and sentence of any such court shall, without delay, be delivered to the officer ordering the court, who shall approve or disapprove of the same within fifteen days thereafter, and shall give notice of his approval or disapproval to the president thereof, and from the sentence of any such court imposing a fine or penalty for any offense, delinquency, or deficiency, an appeal, if made within twenty days after the fine or penalty was made known to the person fined, shall be allowed to the officer ordering the court, or to his successor in command, and he may remit or mitigate such penalty or fine. [Amendment, approved March 12, 1878; Amendments 1877-8, 37; took effect immediately.]

2077. Organization and rules.

SEC. 2077. Courts-martial appointed under the provisions of this chapter are organized in like manner, and subject to the rules and regulations governing courts-martial in the United States army, so far as the same may be applicable and not inconsistent with the laws of this state, and the rules and regulations and forms established by the commander-in-chief. They have the same power to compel the attendance of witnesses when summoned by them, to preserve order in and about the court-room during sessions, and to punish for contempt, as the judges for the superior court have under the laws of this state. [Amendment, approved April 15, 1880; Amendments 1880, 55 (Ban. ed. 220); took effect from passage.]

2078. Powers.

SEC. 2078. Courts-martial have power on conviction to punish by depriving officers of rank by expulsion or dismissal, or by such other and usual military fines and penalties as is customary with courts-martial in the army of the United

States.

2079. Revision and approval of sentence.

SEC. 2079. The officer appointing a court-martial must revise the proceedings and approve or disapprove the sentence of such court-martial, and must direct the execution of such sentence, or mitigate the punishment, or may remit the sentence of the person convicted; but the person so sentenced may apply to the commander-in-chief to revise the proceedings and to disapprove them or pardon the offense, in which case the officer approving the sentence will transmit the proceedings in the case to the commander-in-chief, and the execution of the sentence must be suspended until the proceedings are returned with the decisior thereon.

2080. Fines, how collected.

SEC. 2080. For the purpose of collecting fines or penalties imposed by courtsmartial, the president of any such court must make a list of all such fines and penalties, and of the persons against whom they have been imposed, and must, within fifteen days after the fines and penalties have been imposed, issue a warrant under his hand, directed to any sheriff or constable of the county, commanding him to levy and collect such fines, together with costs, upon and out of any property of the person against whom the fine or penalty was imposed, and such warrant may be executed and renewed in the same manner as executions issued from justices' courts are executed and renewed. All property, except the homestead, is subject to execution and forced sale under such war

rant.

2081. No action in certain cases against members of courts-martial.

SEC. 2081. No action can be maintained against any member of a court-martial, or officer or agent acting under his authority, on account of an imposition of a fine, or the execution of a sentence, on a person not liable to military duty, if such person has been summoned and notified in writing of the charges preferred against him, and has failed to appear and show his exemption before the

court.

2082. Who may order courts of inquiry.

SEC. 2082. Courts of inquiry may be ordered by the commander-in-chief, by the major-general, or by any brigadier-general.

2083.- Rules governing.

SEC. 2083. Courts of inquiry are governed by the same rules as similar courts in the army of the United States.

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2084. Sheriffs and constables must serve subpœnas, etc.

SEC. 2084. Every sheriff and constable must serve all orders, subpoenas, or process delivered to him for that purpose by any member of a court-martial. 2085. Penalty for disobedience to orders, etc.

SEC. 2085. In time of peace every commissioned officer, for disobedience of orders, neglect, or ignorance of duty, unofficer-like conduct, or disrespect to a superior officer, or for neglecting to comply with any of the requirements of this chapter, shall be arrested and brought to trial before a court-martial, which may, on conviction, sentence him to be cashiered, incapacitated from holding any military commission, fined to an amount not exceeding one hundred dollars, or reprimanded, or may sentence him to all or either of such fines and penalties, in their discretion. [New section, approved March 12, 1878; Amendments 1877-8, 38; took effect immediately.]

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