People ex rel. Woehr v. Fackner — 51 N.Y. Sup. Ct. 360

Majority

p. 360

THE PEOPLE OF THE STATE OF NEW YORK ex rel. ROBERT F. WOEHR v. COL. EDWARD FACKNER, Commanding Officer of the Thirteenth Regiment, National Guard, State of New York.

Headnote

Regulations of the State militia — á non-commissioned officer may be reduced to the ranks by order of the commanding officer, without being afforded any opportunity to be heard.

Section 163 of the regulations governing the military forces of this State provides that “non-commissioned officers may be returned or reduced to the ranks by the commanding officer of the organization (officerj issuing warrants), on their own request in writing, approved by their immediate commander, or for cause on the application of their immediate commander, or by the sentence of a .court martial.”

Held, that upon the request of a captain of a company, requesting the colonel of the regiment to reduce to the ranks a non-commissioned officer upon the ground, :among others, of disobedience of orders, the colonel may issue an order returning the non-commissioned officer to the ranks without affording him any opportunity for a hearing upon the charge made against him.

Certiorari to review tlie action of the respondent, the commanding officer of tbe Thirteenth Regiment, National Guard, State of New York, in removing the relator from the office of corporal in company H of the «.aid regiment and returning him to the ranks.

On the 1st day of October, 1886, the defendant, the Colonel of the regiment above mentioned issued an order purporting to return the relator to the ranks, “ upon request of his immediate commanding officer, for cause.” The “ immediate commanding officer ” was the Captain of company Ii. The relator had preferred no request to be returned to the ranks; neither had he been tried for any offense by a court-martial. No notice whatever of any proceedings to return him to the ranks had been given to said relator, nor was any opportunity given him to be heard in his defense before the order was issued. Hpon being served with the said order, which service was the first notice to the relator of any proceedings to return him to the ranks, said relator asked that he might be heard in answer to any charges which might have been laid against him, which said request was denied by the said defendant. The said order was carried into effect on the 7th day of October, 1886 ; and on the 12th of Octob r, 1886, the writ of certiorari herein was allowed.

p. 361

Section 50 of the. Military Code (1888, chap. 299 as affected by 1881, chaps. 91, 322, 323, and 1885, chaps. 268, 310), provides: “Non-commissioned officers, if enlisted men, may be reduced to the ranks by the commander of the organization to which they belong,” etc. Section 163 of the Regulations provides: “ Non-commissioned officers may be returned or reduced to the ranks by the commanding officer of the organization (officer issuing warrants) on their own request, in writing, approved by their immediate commander, or for cause on the application of their immediate commander, or by sentence of a court-martial.”

Russell Benedict, for the relator.

Almet F. J suits, for the respondent.

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

One of the sections of the Military Code of this State provides for the reduction of non-commissioned officers to the ranks by the commander of- the organization to which they belong. (Military Code, § 50.) 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. 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 for disobedience of orders among other reasons. TJpon that request the relator was returned to the ranks by order of the respondent. 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

p. 362

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 respondent brought under review by this writ, and sustains his proceedings.

The proceedings should be affirmed, with costs.

Pratt, J., concurred.

Order affirmed.