
    The People ex rel. John P. Leo et al. v. David B. Hill, as Commander in Chief of the Militia Forces of the State, et al.
    
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 13, 1891.)
    
    1. National guard—Certiorari will not lie to review action of commander IN CHIEF IN DISBANDING COMPANY.
    A writ of certiorari will not lie to review an order of the governor as commander in chief disbanding a company of the national guard.
    2. Same—Con stitutoinal law.
    The provision of the military code authorizing the commander in chief to disband a company is not unconstitutional.
    3. Same—Relieving officer of command not a removal.
    The effect of such disbandment is to relieve an officer thereof of his command, and not his removal from office.
    4. Same—Federal statute.
    The provisions of the United States revised statutes in reference to the government of the militia apply to the state militia only when they are called into the service of the general government.
    
      Application for a writ of certiorari, directed to the commander-in-chief of the state militia and to the adjutant-general and assistant inspector-general, to review an- order made by the governor of this state, as commander-in-chief, on the 10th of October, 1890, disbanding Company I of the Twenty-second regiment of the National Guard. The following is the opinion of the court below at chambers:
    Andrews, J.—This is an application for a writ of certiorari, made upon notice to the respondents, the object of which is to obtain a review of an order made by the governor of this state, as ■commander-in-chief of the military forces, on October 10, 1890, disbanding Company I of the Twenty-second regiment of the National Guard. The only question to be determined now is whether the court should grant the writ, so that the relators can apply to die general term of this court for such review. Upon the nearing of the application the governor appeared specially by the attorney-general for the purpose of objecting to the jurisdiction of the court to review his action, either in the capacity of governor or commander-in-chief of the state militia. The adjutant-general and assistant inspector-general also appeared by the judge advocate-general and objected to tbe granting of the writ on various grounds.'
    The statute of this state, known, as the Military Code, provides that the commander-in-chief shall have power to alter, divide, annex, consolidate, disband, or reorganize the several divisions, brigades, regiments, battalions, troops, 'batteries and companies of the National Guard, whenever, in his judgment, the efficiency of the state forces will be thereby increased.
    
    Under this statute the question whether Company I of the ‘Twenty-second regiment ought to have been disbanded was to be determined by the commander-in-chief alone; and the fact that he made the order in question raises the presumption that he did ■so because it was his judgment that the efficiency of the state forces would be thereby increased, and if said statute is a valid law the decision of the commander-in-chief cannot be reviewed by the courts, for the reason that the exercise by a public officer of a ■discretionary power, such as is given by the legislature to the ■commander-in-chief in this matter, is never subject to review by the courts. People v. Walter, 68 N. Y., 403; People v. Fire Com'rs, 82 id., 358; People v. Fire Gom'rs, 100 id., 82.
    If, therefore, the statute in question is a valid law, it would be useless to grant a writ of certiorari, because it is certain that the general term would not review the action of the commander in ■chief in disbanding said company.
    It is claimed, however, that the statute is invalid because it conflicts with the constitutions of this state and of the United States, .and also with certain acts of congress.
    I have examined the various objections raised against the validity of the provisions of the statute which authorize the disbandment of military organizations, and none of them seems to me to be well founded.
    
      It is claimed that such provisions conflict with that part of § 5 of art 11 of the constitution of this state, which prescribes the manner in which commissioned officers may be removed. This question, however, has been heretofore raised twice in this state, and in each case the decision of the courts was a verse to the contention of the relator. People v. Scrugham, 25 Barb., 217 ; People v. Ewen, 17 How. Pr., 375.
    It is also claimed that the statute conflicts with § 8 of art. 1 of the constitution of the United States, which empowers congress to provide for calling forth the militia of the several states, in certain cases, and for organizing, arming and disciplining such militia, and for governing such part of them as may be employed in the service of the United States It is, however, well settled that “state laws for organizing and disciplining the militia are valid except as they may conflict with national legislation.” Cooley’s Constitutional Limitations, 5th ed., p. 25; Houston v. Moore, 5 Wheaton, 1; Slurges v. Orouminshield, 4 id., 122 ; Gilman v. Philadelphia, 3 Wall, 713 ; Dunne v. People, 94 111., 125. But the statute in question not only does not conflict with national legislation but is expressly authorized by it, for § 1630 of the U. S. Revised Statutes provides that “the militia of each state shall be arranged into divisions, brigades, regiments, battalions and companies, as the legislature of the state may direct. ” The other provisions of the section as to the manner of organizing the militia are permissive merely, and it is only when the militia is called into the actual service of the United States that “ it is to be organized as in the regular service.” §§ 1645-1647. "
    Moreover, upon the merits, neither of the relators is in a position to complain of the provisions of the Military Code of this state which authorized the commander in chief to disband his company.
    The relator Leo received his commission in 1885, and at that time §§ 7 and 44 of the Military Code, chap. 299, Laws 1883, contained provisions for the disbandment of organizations of the militia, and the rendering their officers supernumerary, and substantially the same provisions had been upon the statute book for many years previous. People v. Scrugham, supra, pp. 224-226. Said relator must, therefore, be deemed to have known, when he took the office, that he might be deprived of it by the disbandment of his company.
    The relator Stryker also is chargeable with knowledge of the provisions of the statute, and although he may have enlisted for a definite term he must have been aware that his company might be lawfully disbanded and that he might thus be prevented from serving the full term for which he enlisted, and thereby obtaining exemption from jury duty.
    Nor is the objection well founded that Stryker could not be discharged, except after notice and a hearing, for § 48 of the Military Code, which provides for such notice and hearing, applies to those cases only where the discharge is made upon the recommendation of the commanding officer of the troop, battery or company, and has no application to a case like the present one,
    
      where the discharge results from the disbandment of a company. It may, however, be said that although the special term of this court is fully convinced that the provisions of the Military Code, which authorizes the commander in chief to disband organizations of the national guard, is a valid law, it should grant the writ, and thus enable the relators to have the questions involved passed upon by the general term of this court, and if the relators should see fit, by the court of appeals and the supreme court of the United States. There are several answers to this proposition. In the first place, the granting or refusal of the writ is discretionary with the court, Code of Civil Procedure, § 2127, and if the court is entirely satisfied that some of the questions raised by the relators have been repeatedly decided by the courts adversely to their contention, and that the other questions are free from doubt, it would seem to be a proper exercise of the discretion of the court to decline to grant the writ.
    In the second place, the relators can bring such questions before the general term, either by an appeal from an order denying their application or by another application for a writ, to be made directly to the general term itself.
    In the third place, the question of the legal right of the governor of this state, acting as commander in chief, to make the order which disbanded the company of the relators, cannot be reviewed by means of a writ of certiorari without issuing such writ directly to the governor himself. The adjutant general and the assistant inspector general are merely the agencies employed by the commander in chief, pursuant to military law and usage, in promulgating and carrying out the order.
    If the court has jurisdiction to review the action of the commander in chief in making the order, and the relators should be successful, it would seem to be the duty of the court to annul the order in question and to require the commander in chief and other military officers to recognize the disbanded company as one of the companies of the Twenty-second Regiment and to accord to such company, its officers and men, the same rights and privileges that are accorded to the other companies of that regiment. IE the court should undertake to exercise such powers, I do not see how its action could be made effective unless the writ should be issued to the governor and he be thereby made a party to the proceeding.
    It is, to say the least, extremely doubtful whether the court has jurisdiction to grant such a writ directed to the governor. The assumption of such jurisdiction by the court in time of war, insurrection or riot, might paralyze the military authorities of the state, and lead to intolerable confusion and mischief; but, if such jurisdiction exists at all, it could be exercised under those circumstances as well as under those existing in the present case, and that fact is certainly a strong argument against the existence of such jurisdiction.
    The learned and industrious counsel for the relators have not referred me to any case in which a writ of certiorari has been issued to the governor of a state. Reference is made to the case •of People ex rel. Nichols v. The Mayor, 19 Hun, 441; 21 id., 517, and Matter of Nichols, 6 Abb. N. G, 474. But that was a case in which it was said that the governor acted judicially in approving, the removal of a civil officer by the mayor of New York, city, and that the court had jurisdiction to review the decision of the governor by means of a writ of certiorari; but no writ was issued to the governor in that case, and what was said upon the subject of the power of the court by the judge at special term was entirely obiter, and cannot be regarded as a binding authority. Besides, it would by no means follow that, if the coiprt' did have jurisdiction to review the decision of the governor in that case, it would have jurisdiction to review a military order made by the governor as commander in chief.
    The learned attorney-general states in his brief that some years since a special term of the supreme court issued, ex parte, a writ of certiorari to his excellency, Gov. Eobinson, for the purpose of reviewing his action in dismissing one Cocheu from the military service. Gov. Eobinson declined to make any return to this writ, but sent a respectful communication to the court, denying its jurisdiction to inquire into his executive acts in such a manner, and no further proceedings were had in the case.
    The attorney-general also states that an application was made, upon notice, to the special term of'the supreme court, in the eighth district, for a writ of certiorari, for the purpose of reviewing the action of Gov. Hoffman in removing one Shaw from the office of commissioner of the Niagara frontier police. The then attorney-general appeared, and protested that the court did not have jurisdiction to grant the writ, and the application was denied.
    It is also stated that the above two are the only cases in which it can be ascertained that applications for writs of certiorari, directed to the governor, have been made in this state, and it is further stated that not a single precedent can be found in the jurisprudence of the country where an attempt has been made to review, in such a manner, the action of the executive department, either of the state or of the general government. The attorney-general also cites a number of cases in which it has been held that a writ of mandamus would not be issued to compel the performance of executive duties; but there are other cases, in which the contrary view has been taken. Cooley’s Constitutional Limitations, 5th ed., p. 138, note 3.
    There can be no question but that most of the duties imposed upon the governor are of an executive or ministerial character, performed under the direct authority of the constitution and of valid acts of the legislature, and that his acts in the performance of such duties cannot be reviewed by the courts ; but the precise question raised in the present case, whether the courts can review an act done by the governor as commander in chief, under authority not given by the constitution itself, but by an act of the legislature, which, it is claimed, is void because it is in conflict with the constitutions of the state and of the Hnited States and with acts of congress, does not appear to have been heretofore decided or considered by the courts.
    
      In view of the fact that, with the two exceptions above mentioned, no precedent for an application of this character can be found; of the decisions and reasoning of the courts in cases where it has been held that mandamus would not lie to compel the performance of executive duties; of the undoubted rule of law that the executive and ministerial acts of the governor, done under the direct authority of the constitution itself and of valid acts of the legislature, can not be reviewed by, the courts ; and of the many and serious objections .to any attempt on the part of the courts to review the acts of the governor, as commander in chief,even though done under a statute which, it is claimed, is void, I think that a writ of certiorari directed to the governor ought not to be granted in the present case, certainly not by a single judge, sitting at special term.
    For this reason, and the others hereinbefore set forth, the application will be denied with costs, but without prejudice to the right of relators to renew the application to the general term of this court, if they shall see fit to do so, instead of appealing from the order to be entered pursuant to this opinion.
    
      A. B. Gardner and W. C. Reddy, for the relators; Chas. F. Tabor, Almet F. Jenks and W. W. Ladd, Jr., for resp’ts.
   Van Brunt, P. J.

It would not be at all necessary to add anything to the very satisfactory opinion pronounced by Mr. Justice Andrews upon the application- to the special term for this same writ of certiorari because we can do little but reiterate what has already been said by him in the consideration of the subject when the application was before him for consideration, were it not for the fact that it seems to be assumed by the learned counsel for the relators that whatever rights the state of Hew York has in reference to the government of its militia are derived from the federal constitution and laws, and that unless we can find authority in such constitution or in the enactments of congress for the action which has been taken, the legislature of this state had no right to confer the power to act upon its governor; whereas, upon the contrary, whatever delegation of authority has been made is from the People to the United States, and only to the extent provided for in the constitution of the United States. It therefore follows that in considering the argument very briefly we must have regard to the constitution of the United States and gather from that what authority has been conferred by the People upon the United States in reference to its militia.

The 15th subdivision of § 8 of the constitution provides that congress shall have power to provide for calling forth the militia to execute the laws of the Union, suppress insurrection and repel invasion; and by the 16th subdivision to provide fot organizing, arming and disciplining' the militia and for governing such part of them as may be employed in the service of the United States, reserving to the states, respectively, the appointment of the officers and the authority of training the militia according to the discipline prescribed by congress.

It will thus be seen that the power conferred upon the United States is to provide for organizing, arming and disciplining the militia and governing such part of them as may be employed in the service of the United States. It is apparent that the organization here mentioned refers to the manner of formation of the militia, the weapons with which they shall be armed and the tactics in which they shall be instructed. “ Disciplining ” as used in this section refers in no wise to governmental action, as is apparent from the last clause of the section where it is provided that the authority of training the militia according to the discipline - prescribed by congress is reserved to the states. And the states were so zealous in guarding the right to control the government of the militia, and the material of its organization, that in order that there should be no mistake and that no greater powers should be claimed because of the word “ organizing ” than were implied in prescribing the method of the formation of the militia, the appointment of officers and authority to train is expressly reserved ; and the only instance where governmental powers may be exercised by the United States is distinctly mentioned, viz.: when the militia shall be employed in the' service of the United States. At all other times the whole government of the militia is within the province of the state; and therefore any legislation which the state may adopt relating to the government of the militia is in no" wise in contravention of the powers conferred upon congress as long as it does not infringe upon the method of organization.

Why was the power granted to the United States to provide for organizing, arming and disciplining the militia ? It was that the militia should be organized after one model, armed in an uniform manner, and disciplined in one system of tactics; the result being that when the militia of different states come together called into service by the government of the United States, they come together as a homogeneous body, all organized in one way, armed in one way -and disciplined in one way; and not as a confused mass having different methods of organization, different arms, and acquainted with different systems of tactics, and hence their usefulness very materially impaired.

It was to provide against this contingency that this power was conferred upon the United States by the constitution, and beyond this the state delegated no authority to the United States to interfere in their internal affairs in respect to the government of the militia.

Now it may be that in some particulars the Military Code which has been adopted by the state of Hew York may infringe upon some of the regulations of congress passed pursuant to the authority conferred by the constitution of the United States; but they in no respect relate to the subject which is presented to the court upon the claim of a right to review the action of the authorities of this state in disbanding a company of militia. - It was in pursuance of the authority conferred by the constitution that in the Eevised Statutes, § 1630, it was provided that the militia of each state shall be arranged into divisions, brigades, regiments, battalions and companies, as the legislature might direct; and that each brigade might consist of a certain number of regiments, each regiment of a certain number of battalions, each battalion of a certain number of companies, and each company of a certain number of men, and there is no attempt in .the legislation of congress to interfere with the government of the militia, except when called into the service of the United States.

It seems necessarily to follow that all governmental powers are to be exercised by the state within the limits of the constitution of the state in such manner as the legislature may direct.

But it is urged that the statute was a violation of the state constitution in that it removed the relator Leo from his office and status as an officer of the militia, contrary to art. 11, § 5, of the constitution of the state of Hew York, which provides that no commissioned officer shall be removed from office unless by the senate, on the recommendation of the governor, stating the ground on which such removal is recommended, or by the decision of a court martial pursuant to law. It is clear that this provision has not been transgressed. The relator has not been removed from his office, but simply relieved of his command, a distinction recognized by all military authorities and acted upon by the president of the United States continuously in his supervision of the regular army of the United States.

It is urged, however, that this court should exercise supervision of the action of the governor in cases of this description, because if he has the absolute discretion, as provided by the statute, such discretion may be grossly abused. The presumption usually is that public officers will perform their duty conscientiously and for the best interest of the community, and if this court is to review the action of the governor in doing those things which he has been expressly authorized in his discretion to do by the legislature, then the courts may be called upon to review executive officers in their appointment of officers, where the legislature has seen fit to confer such power, upon the ground that they have abused the discretion conferred upon them. It seems apparent that such an argument cannot obtain, as the power is no more absolute in the one case than it is in the other.

It seems to be assumed that all the provisions of the Revised Statutes of the United States in reference to the government of the militia are applicable to those times when the power to govern the militia has been expressly reserved to the states.

It is clear that these regulations apply to the militia only when they are subject to the governmental power of the United States, viz., when they are called into its service.

It is needless to pursue the subject further, because it seems to us that the arrogation by the court of any such power as is claimed would be an invasion of the functions of another department oi the government and would be absolutely subversive of that respect for and obedience to authority which is necessary in every military organization.

We think, therefore, that there is no case made out which would justify this court in granting the writ asked for, and the application must be denied.

Daniels and O’Brien, JJ., concur.  