State ex rel. Pearson v. Hansen, 3496
| Citation | 409 P.2d 769 |
| Decision Date | 14 January 1966 |
| Docket Number | No. 3496,3496 |
| Parties | The STATE of Wyoming ex rel. George O. PEARSON, Plaintiff, v. Clifford P. HANSEN et al., Defendants. |
| Court | United States State Supreme Court of Wyoming |
Hickey, Rooney & Walton, Cheyenne, Henry A. Burgess, Sheridan, and Franklin J. Smith, Cheyenne, for plaintiff, support of the petition.
John F. Raper, Colonel, ARNG, Richard V. Thomas, Captain, ANG, Cheyenne, and George W. Latimer, Salt Lake City, Utah for defendants, in opposition to petition.
Before PARKER, C. J., and HARNSBERGER, GRAY and McINTYRE, JJ.
In State ex rel. Pearson v. Hansen, Wyo., 401 P.2d 954, we held that the Governor had exceeded his power in undertaking, under the provisions of § 9-19, W.S.1957, to remove George O. Pearson from the office of Adjutant General of the Wyoming National Guard and that the Wyoming Constitution and the provisions of Title 19, Chapter 2, Wyoming Statutes, 1957, were sufficiently definite and complete to permit the Adjutant General to be removed for cause by court-martial or efficiency board. Thereafter, relator petitioned this court for a writ of prohibition, alleging the filing the court-material charges and specifications against him and an order purporting to convene a general court-material for his trial, and asserting its lack of jurisdiction. We found that relator had made no showing of his right to issuance and denied the preliminary writ. Relator now presents a second petition for writ of prohibition, alleging the aforementioned circumstances, the subsequent convening of the court-material, and the denial of his objection to its jurisdiction by the law officer. He now asserts that for various reasons the court-material has no jurisdiction of his person or the subject matter and again seeks a writ of prohibition to halt further proceedings. He argues that the trial by court-martial deprives him of his constitutional safeguards, that the Wyoming legislature has not adopted the Uniform Code of Military Justice and that the court-martial consequently lakcs jurisdiction to try him on the charges lodged.
It is elementary that a writ of prohibition is not favored and is issued with caution, State ex rel. Poston v. District Court of Eighth Judicial Dist., Fremont County, 31 Wyo. 413, 227 P. 378, 35 A.L.R. 1082. Further, it is a discretionary writ and not one of right. City of Sheridan v. Cadle, 24 Wyo. 293, 157 P. 892.
We made it clear in State ex rel. Pearson v. Hansen, supra, that in the light of the Wyoming Constitution the provisions of Title 19, Chapter 2, Wyoming Statutes, 1957, admitted of court-material procedure against a National Guard officer to retire him for cause and that under the provisions of § 19-28, W.S.1957, which the legislature adopted in 1939, undoubtedly without considering all its remifications, the provisions of § 9-19 providing for the removal of appointive officers by the Governor were inapplicable to the removal from office of the Adjutant General. From the record, such a removal was in the beginning the sole objective of the executive, and in our view the present Charge VI, relating to conduct of a nature to bring discredit upon the Armed Forces of the State, as such charge is ramified by the three specifications reciting details of offenses, constitutes a proper charge for proceeding with the attempted dismissal of the officer. In that connection, it may be observed generally that an action to remove any person from a position is not dependent upon conviction of the violation of a statute although such conviction may be proof of cause. If charges other than those contained in VI are beyond the jurisdiction of the court-martial or illegal, they are at present merely surplusage and will at the time they are sought to be enforced be properly a subject for determination.
We should, perhaps, note that relator's counsel in adverting to § 19-56, W.S.1957, would seem by emphasizing the word 'retired' therein to place some special significance on it. In the light of our interpretation in State ex rel. Pearson v. Hansen, supra, that the removal of...
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State ex rel. Peterson v. District Court of Ninth Judicial Dist., 5242
...Constitution and enter a writ of prohibition. The exercise of our original jurisdiction is discretionary. E. g., State ex rel. Pearson v. Hansen, Wyo., 409 P.2d 769, 770 (1966). However, the writ is most appropriately granted when the inferior court lacks subject-matter jurisdiction. State ......
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