State ex rel. Pearson v. Hansen
| Decision Date | 12 May 1965 |
| Docket Number | No. 3418,3418 |
| Citation | 401 P.2d 954 |
| Parties | The STATE of Wyoming ex rel. George O. PEARSON, Plaintiff, v. Clifford P. HANSEN and Roy V. Cooper, Defendants. |
| Court | Wyoming Supreme Court |
Hickey, Rooney & Walton, Cheyenne, Henry A. Burgess, Sheridan, for plaintiff.
John F. Raper, Atty. Gen., Dean W. Borthwick, Deputy Atty. Gen., Sterling A. Case, Asst. Atty. Gen., Cheyenne, for defendants.
Before PARKER, C. J., and HARNSBERGER, GRAY and McINTYRE, JJ.
On May 15, 1962, plaintiff George O. Pearson, having been appointed by Acting Governor Jack R. Gage, became the duly qualified Adjutant General of the Wyoming National Guard and continued to hold and occupy such office until November 25, 1964. On that date Governor Clifford P. Hansen, successor to Acting Governor Gage, undertook to remove plaintiff from the office of Adjutant General for cause and to assign to defendant Roy E. Cooper, a Brigadier General in the guard, the additional duties of Acting Adjutant General. In keeping with the Governor's command, defendant Cooper issued an order, stating in substance that he had assumed the duties assigned and that plaintiff had been relieved. Claiming that the action taken by the Governor and by defendant Cooper was wrongful, plaintiff invoked the original jurisdiction of this court by the filing of a complaint, seeking redress for the claimed deprivation of his rights to the office. The action, of course, involves important public officials of this State, and while the Attorney General, representing the defendants, made a direct attack upon the sufficiency of the complaint to state a claim, to direct attack has been made upon the property of commencing the action here pursuant to Art. 5, § 3 of the Wyoming Constitution, Rule 8(a), Wyoming Rules of Civil Procedure, and Rule 16 of this court. In the meantime the pleadings have been supplemented in keeping with Rule 56, W.R.C.P., and both parties have moved for summary judgment. Accordingly, we proceed to a determination of the questions necessary to be considered for disposition of the case.
In doing so, however, and in order that our decision in this case be not misunderstood, care will be taken to state clearly what we conceive to be the real issues before us. It is not our function to explore collateral or feigned issues. We are impelled to say this for the reason that we have encountered some difficulty in eliminating from plaintiff's complaint averments that are immaterial and unrelated to the scope of the claim stated. As we analyze plaintiff's complaint--giving to it all of the liberality of the relaxed rules of pleading as prescribed by the Wyoming Rules of Civil Procedure--it simply raises the ultimate issue of whether plaintiff or the defendant Cooper is entitled to hold and occupy the office of Adjutant General. In other words, it is an action to try title to a public office. Necessarily, this limits the matters to be considered. The appropriate remedy is to be found in the statutes relating to an action in the nature of quo warranto. Section 1-896 et seq., W.S.1957; State ex rel. Hamilton v. Grant, 14 Wyo. 41, 81 P. 795, 796-797, 1 L.R.A.,N.S., 588, 116 Am.St.Rep. 982, rehearing denied 82 P. 2. Furthermore we think it is an adequate remedy. Being both appropriate and adequate, it furnishes the exclusive remedy. Crawford v. City of Sheridan, Wyo., 392 P.2d 519, 520.
Plaintiff apparently does not share that view as he also asks for relief by way of a coercive writ of mandamus against the Governor. To sustain his position reliance is placed on Cowan v. State ex rel. Scherck, 57 Wyo. 309, 116 P.2d 854, 856, 136 A.L.R. 1330. State ex rel. Hamilton v. Grant, supra, might also have been cited. While it is true that both were actions in mandamus, we would point out that the question of title to office was incidental to the particular relief sought. As stated above, that is not this case. We would further point out that the relief requested in Cowan and State ex rel. Hamilton concerned duties clearly ministerial. We are in doubt that this is the situation here, but in any event we would not be inclined to grant such relief under the circumstances of this case and the request for mandamus is therefore denied. Even though the Governor exceeded his authority in the premises, we are persuaded that he did so in good faith in reliance upon his advisers. It would be a bold and unjustified assumption on our part to proceed on the basis that the Governor will not take meticulous care to observe the law relating to his power of removal, as interpreted and laid down by this court. State ex rel. Irvine v. Brooks, 14 Wyo. 393, 84 P. 488, 491, 6 L.R.A.,N.S., 750, 7 Ann.Cas. 1108. Perhaps we should also make clear that nothing in the record indicates that the defendant Cooper in assuming the duties of Adjutant General and occupying the office has done so in bad faith. He has simply carried out the command of the Governor as Commander in Chief of the Wyoming National Guard.
Neither will we make inquiry into the charges assigned by the Governor as reasons for removal of plaintiff from the office claimed. That is rendered unnecessary and would be improper under the view we take of the case. As we said above, the precise and paramount question framed by the issues is the right to a public office, and that in turn is dependent upon whether or not the Governor invoked the proper and lawful procedure. This simply involves questions of law.
Under the statute the sole power of appointment of the Adjutant General is vested in the Governor. Section 19-28, W.S.1957. As a general rule such power carries with it the right of removal. Nevertheless, the power may be limited by provisions of the constitution or statutes. 67 C.J.S. Officers § 59b(2), p. 244. The provision of the Wyoming Constitution pertinent to the question is contained in Art. 3, § 19, and states as follows:
'All officers not liable to impeachment shall be subject to removal for misconduct or malfeasance in office, in such manner as may be provided by law.'
In keeping therewith the legislature originally delegated certain powers of removal to the Governor. Section 9-19, W.S.1957, provides:
'Any officer or commissioner of the State of Wyoming who shall hold his office or commission by virtue of appointment thereto by the governor, or by the governor by and with the advice and consent of the senate, may be removed by the governor from such office or commission for maladministration in office, breach of good behavior, wilful neglect of duty, extortion, habitual drunkenness, or any other cause deemed sufficient by the governor to justify and warrant such removal; provided, reason for such removal shall be filed in the office of the secretary of state in writing, subject to inspection by any person interested.'
It should be noted that the foregoing provisions were enacted by the legislature in the year 1905 and have not since been amended. Concededly the Governor chose to follow the foregoing procedure and relies upon those provisions to support the action taken.
On the other hand, the plaintiff contends that such provisions are not applicable when an Adjutant General is involved and relies upon § 19-28, W.S.1957, which provides in part:
'The governor shall be commander-in-chief of the Wyoming national guard * * * and he shall appoint the adjutant general to serve for a period as prescribed for all other officers in this chapter, who shall be chief of staff; * * *'
The companion statute is § 19-56, W.S.1957, and provides in part:
* * *'
Section 19-28 in its present form was adopted in the year 1939. For several years prior thereto the tenure of the Adjutant General corresponded to that of other important officers of the State, including the Governor, in that the Adjutant General was 'to serve for a period of four years or until his successor is duly qualified.' Ch. 163, § 1, S.L. of Wyoming, 1925. No doubt there are those who may question the wisdom of tying the hands of a succeeding Commander in Chief of the militia in the selection of his principal officer in whom he should have complete trust and confidence. Nevertheless, those considerations are not before us. It is the legislature that determines such policy. Absent conflict with the constitution or absent some other infirmity, it is our duty to take the statutory law as we find it and to see to it that the powers conferred upon public officials are not abused. State ex rel. Richmond v. District Court of Second Judicial Dist. within and for Albany County, 45 Wyo. 29, 14 P.2d 673, 684.
Returning to the matter of limitation upon the Governor's power of removal, it can be seen that the foregoing statutes are of that nature and without question circumscribe removal during tenure of the officer involved. Just cause is the touchstone to the exercise of the power. That seems to be accepted by all parties. However, the dispute here comes about as to which forum the Governor or a military court, is endowed with jurisdiction to entertain and act upon the sufficiency of the charges as constituting such cause.
To aid us in solving this question we first turn to § 9-19. It is clear from the language used that originally it applied generally to all officials of the State appointed by the Governor. Whether the...
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Nyberg v. State Military Dept., 02-117.
...41 Cornell L.Q. 457, 470-71 (1956). Cole, 909 S.W.2d at 538 n. 3. [¶ 27] This court has held in a similar manner. In State ex rel. Pearson v. Hansen, 401 P.2d 954 (Wyo.1965), this court had the opportunity to consider a discharging decision within the National Guard. In Hansen, the newly el......
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...by a courts-martial or administrative board legally convened for that purpose. Id. § 19-9-301(b) (emphasis added). See also Pearson v. Hansen, 401 P.2d 954 (Wyo.1965) (holding 19-9-301, not 9-1-202, controls removal of national guard officers and therefore such officers may be removed only ......
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