People ex rel. Smith v. Roe

At the request of the relator, as major of the 71st regiment of the National Guard of the state of New York, a court of inquiry was appointed to investigate certain charges made against him as to his conduct as an officer of such regiment at Santiago during the recent war with Spain, and on December 10, 1898, pending its decision, the respondent major general, as commanding officer of the National Guard of the state of New York, issued a special order, which was subsequently approved by the governor of the state as commander in chief of the National Guard, that the relator “be relieved from duty with the regiment until further orders.” The court of inquiry, in its decision, recommended that the relator be ordered before a court-martial, if such court had jurisdiction to try an offense committed while in the service of the United States, outside of the state of New York, and, “if it be decided that such court-martial has no jurisdiction, we recommend that Colonel Smith * * be ordered before an examining board to determine” his “capacity and fitness for the service.” This report was approved by both the major general commanding and also by the commander in chief of the National Guard. Subsequently a board of examination was constituted, and directed to meet at a time and place stated for the purpose of determining the relator’s capacity and fitness for service in the National Guard as a commissioned officer. The relator thereupon obtained an alternative writ of prohibition, directed to the commander in chief and the board of examination, to show cause before a special term of this court ( 59 N. Y. Supp. 959 ) why they should not be restrained from proceeding in the premises, and staying all proceedings in reference thereto until the determination of the application. At the time the writ was returnable, an order was made denying the application, and the relator appealed to this court ( 60 N. Y. Supp. 1088 ), and, the order' appealed from being affirmed, he thereupon appealed to the court of appeals,, in which court his appeal is now pending. On May 19, 1899, after the relator had been ordered before the examining board to determine his capacity and fitness for the service, he applied, in writing, to the respondent, to be restored to his command. His application was denied, the respondent indorsing upon it: “As the proceedings of the court of inquiry have been acted upon, and the governor has ordered this officer before a board of examination, I do not consider that I have any authority in this

After a careful consideration of the record before us, we are of the opinion that the relator’s application was properly denied. The order relieving him from command of his regiment being approved and his subsequent application for reinstatement being denied by the governor, the commander in chief of the National Guard of the state, we are of the opinion that the respondent did not thereafter have the power, without the sanction and approval of the governor, to restore him to his command. The order relieving the relator from his command, and especially after the relator had applied to the governor to be restored, and such application had been denied, became and was, in legal effect, the order of a superior officer, the commander in chief of the National Guard of the state, and as such it could not be disregarded, overruled, or set aside by an inferior officer. We are also of the -opinion that, it being an order relating peculiarly to the management and control of the military forces of the state, the civil courts have no power to interfere with it. The governor of the state, under the constitution, is made the commander in chief of the military and naval forces of the state, and his authority in this respect is substantially the same as that vested in the president under the federal constitution over the army and navy of the United States. The president of the United States has the power, by virtue of his position, to issue such orders and directions as are necessary and proper to insure order and discipline in the army. 1 Winthrop, Mil. Law, 20; U. S. v. Williamson, 23 Wall. 411 , 23 L. Ed. 89 . See, also, Johnstone v. Sutton, 1 Term R. 544. He can relieve an officer from command, and appoint another in his place, and direct generally as to the movements of the army and navy; and the congress has no power to control him in this respect. 2 Tucker, Const. 718; Black, Const. Law, 100-102; Cooley, Const. Law, 99. The governor having substantially the same power over the troops of the state that the president has over the troops of the United States, he can do whatever, in his judgment, may be for the.best interest of the state, either as to the movement of troops or the relieving from or assigning to duty officers in command of them; and, once he has exercised his authority in this respect, the civil courts have no right to interfere. Under the constitution and statutes the courts have no jurisdiction over, and therefore cannot interfere with, the management of the military forces of the state.

“It is the order of the commander in chief of the military forces of the state. It is revocable by the authority which issued it. The relators have no such interest as entitles them to the interposition of the civil court. The order deprives them of no property, subjects them to no penalty, and affects no personal right cognizable in a civil tribunal. The officer who complains is still an officer as before, and the fact that his command is taken away is the result of a military order of a superior, and he must seek his redress in an appeal to him. Deprivation of command is not a civil injury.”

See, also, Grove v. Mott, 46 N. J. Law, 328 ; State v. Harrison, 34 Minn. 526 , 26 N. W. 729 ; Swaim v. U. S., 165. U. S. 553, 17 Sup. Ct. 448 , 41 L. Ed. 823 .

Here the relator, while he has been temporarily relieved from the duties devolving upon a commanding officer, has not been deprived of his office. He is still an officer of the 71st regiment. His office has not been taken from him; neither has he been injured in a pecuniary way. His rights have not been impaired or interfered with in such a way as to call for interference on the part of the court.

The order appealed from is right, and must be affirmed, with costs. All concur.