Wyoming Advisory Opinions July 29, 1998: AGO 1998-007 (July 29, 1998)

Wyoming Attorney General Opinions

1998.

AGO 1998-007.

FROM: William U. Hill Attorney General

Mike Hubbard Deputy Attorney General

Douglas J. Moench Senior Assistant Attorney General

QUESTION: May non-residents lawfully be appointed to the positions of assistant adjutant general of the Wyoming Air National Guard or the Wyoming Army National Guard under Art. 6, 15 of the Wyoming Constitution?

ANSWER: No.

DISCUSSION

WYO. CONST. ART. 6, 15 provides:

No person except a qualified elector shall be elected or appointed to any civil or military office in the state.

We begin our analysis by first making the determination that, under the U.S. Constitution, Art 1., 8, the authority to appoint officers of the state militia (the national guard units) is reserved unto the states. See 53 Am Jur 2d, Military and Civil Defense, 30. This authority is delegated to the governor under WYO.STAT. 19-9-301(a)(1998 Supp.), a provision of the statutes that remains unchanged from the statutory scheme which existed prior to enactment, in 1998, of the recodified defense forces and affairs title. In other words, the governor has always had the power and authority of appointment of officers of the national guard units.

Next we look at the definitions of the terms used in WYO. CONST ART. 6, 15. In doing so, we must looked at each term and ascribe to that term the plain meaning of that language. Zacanelli v. Central Coal & Coke Co., 25 Wyo. 511, 173 P. 981 (1918); Geraud v. Schrader, 531 P.2d 872 (Wyo. 1975). Additionally, we must construe all pertinent provisions of the Constitution and the Wyoming statutes so as to give meaning to the probable intention of the framers of the constitutional provisions. Witzenberger v. State es rel. Wyoming Community Development Authority, 575 P.2d 1100, reh. den. 577 P.2d 1386 (1978). With these principles in mind we move forward with our analysis by defining the pertinent terms of Art. 6, 15.

The term "qualified elector" is defined at WYO.STAT. 22-1-102(a)(x) in Wyoming's Election Code as follows:

The term "qualified elector" includes every citizen of the United States who is a bona fide resident of Wyoming, has registered to vote and will be at least eighteen (18) years of age on the day of election at which he may offer to vote. No person is a qualified elector who is a currently adjudicated mentally incompetent person, or who has been convicted of a felony and his civil rights have not been restored. A literacy test shall not be imposed as a condition to voting in any election.

This definition incorporates the criteria in WYo. CONST. ART. 6, sections 2 and 5. It makes it clear that a person must be a citizen and registered to vote in Wyoming to be a "qualified elector". Registration to vote in Wyoming is addressed in Chapter 3 of Title 22 where the requirement for registration is that the person "is actually and physically a bona fide resident in Wyoming." WYO.STAT. 22-3102. The addition of the words "actually and physically" to the "bona fide" characterization seems to add emphasis, though these easily understood terms are not defined. Therefore, to be registered one must first be a bona fide resident and this condition is again a prerequisite to becoming a "qualified elector."

For definition of the term "military office" we draw from Title 19, Chapter 7 which deals with the State Militia which is, of course, the Air and Army National Guard units. WYO.STAT. 19-7-101(a)(1998 Supp.) defines "Military department" as "the adjutant general, the divisions of the army national guard, the air national guard, state military affairs and emergency management agency." Looking to Geraud v. Schrader, 531 P.2d 872 (Wyo. 1975), we find that the words "civil office import an office in which is reposed some portion of the sovereign power of the state..." and that

[a]ll officers whose duties are prescribed by general law, however trivial, perform their own particular portion of the business of the state. *** all who have parts to perform in the general scheme are officers holding under the state, if their engagement rises to the dignity of an office, rather than a mere employment.

From this the logical extension carries over to the terms "military office." Taking the plain meaning of the words used, we can conclude that the "office" is within the military. "Official" is defined as "any elected or appointed state official who receives compensation other than expense reimbursement from state funds, except officials serving on an intermittent, irregular or less than halftime basis." WYO.STAT. 9-3 -203 (a)(ix).

"Officer" is defined at WYO.STAT. 19-7-101(a)(vii) and at WYO.STAT. 197-104, the statute provides that each "assistant adjutant general shall hold the rank of brigadier general and shall possess the qualifications set forth in WYO.STAT. 19-7-103", most notable of which is the requirement that the appointee "[b]e a resident of the state of Wyoming." at 103(a)(iv). This provision specifically making residency a requirement was added in 1998, amending and rewriting WYO.STAT. 19-2-204. The statutory scheme in existence prior to the amendments which were effective July 1, 1998, also supports the conclusion that an appointment to the position of assistant adjutant general is an appointment to a "military office" as that term is used in WYO. CONST. ART. 6, 15.

At WYO.STAT. 19-7-105, the positions of "senior assistant adjutant general" and "junior assistant adjutant general" are first recognized in statutory language and place these officers in the direct line of succession in the event of disability, death, or absence of the adjutant general. Given the fact that the adjutant general has authoritative and crucial statutory duties as outlined in WYO.STAT. 19-7-103(b), the assistant adjutant general is clearly a position in which is "reposed some portion of the sovereign power of the state." Geraud, supra.

The next consideration must be whether these military officials are "appointed." WYO.STAT. 19-9-301(a) in pertinent part provides that:

All officers of the national guard of Wyoming shall be appointed by the governor of Wyoming as provided in national guard regulations except such officers as may be commissioned by the governor in an honorary status or in a state status without regard to their allocation or qualification by the department of defense of the United States.

While officers obtain their rank and commission pursuant to federal statute or regulation, the appointment of National Guard officers is an attribute of state sovereignty specifically held by the states and an officer enjoys that privilege under the will of the sovereign state. Crenshaw v. United States, 134 U.S. 99, 33 L. Ed 825, 10 S. Ct. 431 (1890). The position of assistant adjutant general, however, is to be distinguished from rank and commission, the latter being determined by federal statute and regulation.

CONCLUSION

With these things in mind we conclude that an appointment to the position of assistant adjutant general in the military office of the adjutant general is an "appointment" to a "military office" and such person must be a "qualified elector" under the provisions of the Wyoming Constitution Art. 6, 15. Appointment that is inconsistent with the Constitution would therefore be in violation of the Constitution's requisites, and could be held void. Allen et al. v. State Board of Equalization, 110 P.2d 73 (Cal. 1941). On this point we note that courts have held that a course pursued in conflict with the Constitution, and any resolution, order or decree issued in conformity with that course, is void. State ex rel. Schneider v. Kennedy, 225 Kan. 13, 587 P.2d 844 (1978) citing, with approval, State v. Nelson, 210 Kan. 439, 502 P.2d 841 (1972).

William U. Hill Attorney General

Michael L. Hubbard Deputy Attorney General

Dogulas J. Moench Senior Assistant Attorney General