People ex rel. Woehr v. Fackner — 8 N.Y. St. Rep. 797

Majority

p. 797

People ex rel. Robert F. Woehr v. Colonel Edward Fackner, Commanding Officer of the Thirteenth Regiment National Guard, State of New York.

(Supreme Court, General Term, Second Department,

Filed May 9, 1887.)

Headnote

Military law—Militia—Reduction of non-commissioned officers— Military Code, § 50.

A non-commissioned officer in the New York state militia is not entititled to an opportunity for a hearing and vindication from charges, before he can be reduced to the ranks for cause, on the application of his immediate commander.

Writ of certiorari to review the proceedings of the commandant of the Thirteenth regiment N. G. S. N. Y.

Russell Benedict, for relator ; Almet F. Jenks, for def’t.

This is a proceeding by certiorari to review the action of the defendant, who is a colonel of a regiment of New York state militia, and when he enlisted and became a member of that organization he consented to all the laws and regulations appertaining thereto, and agreed to abide by and obey them, and be bound and controlled by them in all matters relating to his military fife and conduct.

One section of the military code of this state provides for the reduction of non-commissioned officers in the ranks by the commander of the organization to which they belong. Section 50, Military Code.

That statute is supplemented by the military regulations of the state, which also have the force of law, providing for the reduction of non-commissioned officers to the ranks, for cause, on the application of their immediate commander.

p. 798

■The relator was a non-commissioned officer of his company, and his captain addressed a written communication to the defendant as colonel of the regiment and its commanding officer, requesting the reduction to the ranks of the relator, among others, for disobedience of orders.

Upon that request the relator was returned to the ranks by order of the defendant.

Now the relator insists that he should be afforded an opportunity for a hearing, and vindication from the charge before his reduction to the ranks for cause.

The military regulations of the state, however, provide for the return of non-commissioned officers to the ranks either upon their own request approved by their immediate commander, or for cause upon the application of their immediate commander, or by the sentence of a court martial.

That regulation seems to be a sufficient vindication and. justification of the action of the defendant brought under review by this writ, and sustains his proceedings.

The proceedings should be affirmed with costs.

Barnard, P. J., and Pratt, J., concur.