COMMISSIONS IN THE NATIONAL GUARD

COMMISSIONS IN THE NATIONAL GUARD

The Secretary of State may attest a commission in the National Guard if he is satisfied of the authenticity of the Governor's signature, even though he has reason to believe that the document is not legally issued.

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                                                                 January 16, 1950

Honorable Earl Coe
Secretary of State
Legislative Building
Olympia, Washington                                                                                                              Cite as:  AGO 49-51 No. 195

Dear Sir:

            Receipt is acknowledged of your letter of January 5, 1950, to which you have attached a letter of transmittal accompanying seventy-two commissions in the National Guard of the State of Washington.  These commissions, when first received, bore the signature of the Governor and that of Lilburn H. Stevens as Adjutant General.  Your letter concludes:

            "In view of the fact that Judge Charles Wright of the Thurston County Superior Court has issued a memorandum opinion sustaining the action of Ensley M. Llewellyn to the effect that he was illegally removed from the office of Adjutant General -doubt exists in my mind as to the propriety of affixing the Seal and my signature on these instruments.

            "Your opinion is respectfully requested."

            Subsequent to transmittal of your letter to this office it was returned and the signature of Ensley M. Llewellyn has been affixed to each of the commissions except that for the promotion of Lilburn H. Stevens.  Also, a decree has been formally entered in the Superior Court for Thurston County enjoining the Governor from interfering with the occupancy of the office of Adjutant General by Ensley M. Llewellyn and stating that the latter is entitled to immediate possession of the office.

             [[Orig. Op. Page 2]]

            It is our conclusion that the commissions may be properly attested by you.

                                                                     ANALYSIS

            Section 2, Article X, of the state constitution provides in part:

            "* * * Officers of the militia shall be elected or appointed in such manner as the legislature shall from time to time direct, and shall be commissioned by the governor. * * *"

            The State Military Code, chapter 130, Laws of 1943, in section 19 [Rem. 1943 Supp. 8603-19] provides in part:

            "Officers to be commissioned by the Governor.  All commissioned and warrant officers of the Organized Militia of Washington shall be appointed and commissioned or warranted by the Governor only as hereinafter provided.  * * *"

            It will be noted that both by the constitution and the statute the appointment and commissioning is done by the Governor.  Section 15, Article III, of the constitution provides:

            "All commissions shall issue in the name of the state, shall be signed by the governor, sealed with the seal of the state, and attested by the secretary of state."

            The State Military Code, in prescribing the duties of the state Adjutant General in section 16 [Rem. 1943 Supp. 8603-16] under subdivision (d) provides:

            "He shall attest all commissions issued to military officers of this state."

            Thus, the function of the Secretary of State and of the Adjutant General is to attest commissions and appointments issued by the Governor.  To attest merely means to witness.  In the case ofIn re Chambers Estate, 187 Wash. 417, 60 P. (2d) 41, our Supreme Court, in discussing the meaning of the word "attest" said:

             [[Orig. Op. Page 3]]

            "In Ballentine's Law Dictionary (edition 1930) the word 'attestation' is defined as follows:

            "'The act of witnessing the actual execution of a paper and signing one's name as a witness to that fact * * *'"

            Thus, in attesting a document your duty is merely to bear witness to the Governor's signature.  In other words, you authenticate the fact that he has signed and promulgated the instrument.

            In the case ofState ex rel. Rogers v. Jenkins, 20 Wash. 78, our Supreme Court held that the duties of the Secretary of State with respect to attesting pardons is ministerial only and held that he might be required by mandamus to authenticate and affix the state seal to a pardon coming from the Governor even though he did not deem the pardon justified by law.  We believe that the holding in that case is applicable in the present situation.  Here the commissions which have now been signed by Ensley M. Llewellyn whom the court has declared to be the de facto occupant of the office of Adjutant General are clearly proper.  If you are satisfied that the execution by the Governor is authentic it is not your duty to question the legality of the document, but only to determine that the execution is authentic.

            With respect to the commission of Lilburn H. Stevens, it may well be doubted that the commission is properly issued since it does not bear the attestation of the person declared by the court to be the de facto Adjutant General, but your attestation of the document is no more than a certificate that you have witnessed the Governor's signature and are satisfied that it has been authentically executed by him.  The responsibility for undertaking the delivery of the document and making of the appointment effective in the light of the injunction must rest with the Governor.

Very truly yours,

SMITH TROY
Attorney General

LYLE L. IVERSEN
Assistant Attorney General