People ex rel. Leo v. Camp , 42 N.Y. St. Rep. 314 ( 1891 )

Daniels, J.

The application is made by John P. Leo, as captain of Company I of the twenty-second regiment of the Hational Guard of the state of Hew York. The company had been previously disbanded by an order of the governor, acting in his capacity of commander in chief. This order was authorized by section 1, c. 332, Laws 1888. His power to make the order was considered and sustained in the denial of a previous application made in behalf of the captain for a writ of certiorari to review the action of the commander in chief, and the order denying that application was affirmed by the general term. 13 N. Y. Supp. 637. A state of facts quite similar to these then made to appear has been presented in support of the application for the writ of mandamus. In support of the application the applicant states that he has been deprived of his office, and that due demand had been made of the commanding officer of the regiment for his restoration to that office, which had been unjustly and unlawfully refused; and the writ has been applied for, commanding the respondent, the colonel of the regiment, his successors, subordinates, and assistants, to restore the name of,the petitioner to the roll of officers of the regiment, and to recognize him in the performance of the functions of his office as captain therein, and permit him to exercise the powers, duties, and privileges of captain in the regiment. The colonel of the regiment had no power to comply with this demand, even though it was made as that is stated to have been done by the applicant; for, as the company had been lawfully disbanded, and the other companies comprising the regiment each had its own captain, the colonel did not have the power, if he had the inclination, to make this official restoration of the applicant. That he had been removed, or was intended to be removed, from his office, has not been established as a fact. All that has been done has been to comply with the order of the commander in chief to disband and muster out the company, and that still left the applicant in his office, but necessarily only as a supernumerary. He has his office, without a command. The affidavit of the colonel, used in answer to the application, discloses this as the situation of the applicant. He says: “Ho demand was ever made upon me by the above-named relator to recognize him as a supernumerary officer, nor to accord him any privileges or rights as such. The demand made upon me was to recognize the relator as an officer on active duty, and to accord him the rights and privileges of such an officer, as distinct from those of a supernumerary officer. I refused to agree to such demand in obedience to the order of the governor, commander in chief, making the relator a supernumerary officer, a copy of which order is attached to the affidavit verified herein by me, March 23; 1891, and is known and described as Special Order No. 99, General Headquarters, Series 1890,’ and dated October 10, 1890. The relator has not been refused by me any of his rights as supernumerary officer.” And as there seems to be no reason for doubting the correctness of this statement, the conclusion follows that the applicant has not been deprived of any of his legal rights. What has taken place has been done under the authority of the law, and that can in no respect be changed by the writ of mandamus. Ho case has been maintained which will justify the issuing of this writ, and the order should be affirmed, with $10 costs and the disbursements.