2040. In case of the absence of the Commander-in-Chief from the Capital, or if it is impossible to immediately communicate with him, the civil or military officer making the requisition for troops may, if he deem the danger imminent and not admitting of delay, serve a copy of such requisition, together with a statement of the Governor's absence or the impossibility of immediately communicating with him, upon the Major General, or, in his absence, upon the General of the Brigade, who is authorized to exercise, with respect to calling out the troops of his division or brigade, the powers conferred in this section upon the Governor; but if the call is disapproved by the Governor, the troops so called into service must be immediately disbanded.

2041. Such call must be made by an order issued and directed to the commanding officer of the company, battalion, regiment, brigade, or division, which is called into service, designating the particular troops called, the time and place of rendezvous, and the officer to whom they must report.

2042. If such order is directed to the Major General of Division, it must be immediately communicated to the Brigadier Generals, and by them to all the officers of their respective brigades.

2043. Every officer receiving such order must rendezvous and report for duty as herein directed; and every officer commanding an organized company or battalion of the National Guard, on receiving such order, must immediately proceed to notify the same to each individual of his command, by personal notice or by publication in some newspaper, or by the posting in public places of the county or counties from which the call is made.

2044. Such officer must attend in person, or by deputing an officer of the organized militia in his place, at the place of rendezvous, and take the names of all volunteers for service under such call.

2045. If the number of such volunteers is sufficient to form one or more companies or battalions, he must immediately call and superintend the election of the officers of such companies or battalions.

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. 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. 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 Commanderin-Chief must so organize them, and must designate the particular Brigadier General to command it.

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 enrolled 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. 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. 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. 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. Any member of the national Guard who neglects or refuses to rendezvous when ordered out by the Commanderin-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

Am

75

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. 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 of the enrolled militia not organized into companies, may, at the discretion of the Commander-inChief, 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. 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. 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. The person whose substitute is so accepted is not subject to draft during the term of service of the substitute.

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 731 of the Penal Code.

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

2061. All vacancies of officers and non-commissioned officers in active service must be filled by appointment or promotion; the first by the Commander-in-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. In filling vacancies of commissioned officers the Commander-in-Chier 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. The commanding officer of troops in active service may nominate to any vacancy for personal bravery or service in siege or battle, and if the Governor 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. 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. 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. 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.

$ 2081.

No action in certain cases against members of Courts martial.

$2082. Who may order Courts of inquiry.

$2083. Rules governing.

$2084. Sheriffs and Constables must serve subpoenas, etc. Penalty for disobedience.

$ 2035.

$2086. Penalty for refusing to pay over moneys.

$ 2087. Fines and penalties, various offenses.

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.