
    The People ex rel. Clinton H. Smith, Relator, v. Edward M. Hoffman, as Adjutant-General of the State of New York, et al., Respondents.
    (Supreme Court, New York Special Term,
    August, 1900.)
    Certiorari — Dismissal from National Guard cannot be reviewed.
    Proceedings, taken under the Military Code, resulting in the decision by a board of examination that a member of the National Guard was unfit for service therein, together with the approval of the Governor — followed by discharge from the service — cannot be reviewed by a writ of certiorari, as the proceedings generally relate to the executive department, and cannot be controlled by the judicial.
    Motion to vacate a writ of certiorari requiring the Adjutant-General to return the records of the Board of Examination, convened by general orders, No. 7, and the approval of the Governor of the findings of such board.
    John C. Davies, Attorney-General (Edward P. Coyne, of counsel), for motion.
    Alexander S. Bacon, opposed.
   Giegerich, J.

The Governor unquestionably had the power to appoint the Board of Examination (Military Code, § 64), which decided that the petitioner was unfit for service in the National Guard of the State of New York. The proceedings and report were approved by the Governor, the Commander-in-Chief of the National Guard, and thereupon, by operation of law, the petitioner was discharged from the service (Military Code, § 64). The proceedings did not, as claimed, partake of the character of a judicial inquiry, but were had in aid of the Commander-in-Chief, to enable him to understandingly exercise his discretion in determining the fitness of an officer to hold his commission. The approval by the Governor was a function which, under the law, was vested in him in connection with the State Military Department, and the proceedings generally related to the exercise of power by the executive, and are not subject to control by the judicial department. 8 Am. & Eng. Ency. of Law, 1401. The motion is, therefore, granted.

Motion granted.  