
    The People ex rel. John J. Griffin, App’lt, v. Austin Lathrop el al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed April 10, 1894.)
    
    1. Veterans—Preference—Discharge.
    The provisions of chap. 313 of 1884, as amended by chap. 464 of 1887, do not abrogate or repeal a power to discharge which existed prior to its passage.
    
      2. Samé.
    In the absence of restraints imposed by the Constitution or statute, the power of appointment implies the power of removal, when no definite term is attached, by law, to the office.
    3. Same—Act of 1889.
    Chap. 382 of Í889, in express terms, confers, upon the agent and warden, power to appoint and remove the keepers.
    Appeal from an order of the general term of the supreme court in the second judicial department, made May 8, 1893, which affirmed an order of special term denying an application for a peremptory writ of mandamus to compel the reinstatement of the relator as keeper of Sing Sing state prison. The facts, so" far as material, are stated in the opinion.
    
      Horace D. Ellsworth, for app’lt; T. E. Hancock, Attorney-General, for resp’ts.
    
      
      Affirming 54 St. Rep. 371.
    
   O’Brien, J.

The relator, an honorably discharged soldier, had served for many years as a keeper in the state prison at Sing Sing, from which position he was discharged by the agent and warden in September, 1891, without any charges being made against him or any fault on his part in regard to the performance of the duties of the place. Another honorably discharged soldier was-appointed in his place. The relator applied to the court for a peremptory writ of mandamus to compel his reinstatement, which was denied, after a hearing, and the order has been sustained by the General Term.

The sole question presented by the appeal is one of power. If the agent and warden had the legal authority to discharge the relator and appoint another person in his place the court cannot control the use of this power nor interfere with the exercise of discretion or advise the officer touching the performance of his duties. The discharge of the relator might not be regarded, under all the circumstances, as just or wise, but the courts have nothing to do with these questions. We have the right to look into the ■question of power, but the writ demanded by the relator could not issue except to require the superintendent or warden to perform some act which the relator could demand as a legal right. The contention in behalf of the relator is, that he was illegally discharged, and that he is entitled to be reinstated in the position from which he was removed and this by force of the terms of the statute. Laws of 1887, chap. 464. By that act the legislature has declared that “In every public department and upon all public works of the state of New York, and of the cities, towns and villages thereof, and also in non-competitive examinations under the Civil Service Laws, rules or regulations of the same, wherever they apply, honorably discharged Union soldiers and sailors shall be preferred for appointment and employment; age, loss of limb or other physical impairment which does not, in fact, incapacitate, shall not be deemed to disqualify them, provided they possess the business capacity necessary to discharge the duties involved.”

The second section provided that “all officials or other persons having power of appointment or employment, in the public service, as set forth in the first section of this act, are charged with the faithful compliance with its terms, both in letter and spirit, and a failure therein shall be deemed a misdemeanor.”

It will be seen that though this statute prescribes the duty of officers possessing the power of appointment, it contains no language that abrogates or repeals the power to discharge which existed before the first enactment of 1884. By § 4, article 5 of the Constitution the appointment of certain officers in the prisons, including guards or keepers, is vested in the agent and warden. The language of the section is such as to justify the inference that this power was subject to legislative regulation. Assuming that it is, the question arises whether the legislature has, in fact, made any regulation abrogating or in any way restricting the power of the agent and warden to remove his appointees at his discretion. In the absence of restraints imposed by the Constitution or by statute the power of appointment implies the power of removal when no definite term is attached to the office by law. People ex rel. Cline v. Robb et al., 136 N. Y. 180; 37 St. Rep. 8.

It is quite clear, therefore, that prior to the enactment of the statute, upon which the relator relies, he could have been discharged at the discretion of the warden. The statute has not abrogated this power. In fact it is silent on the subject of the power to discharge and only imposes a duty upon the appointing officer when making appointments to prefer honorably discharged soldiers. But even that duty is not imposed by the statute in absolute or unqualified terms, but it is left to the judgment and discretion of the appointing power to determine in each case whether or not the soldier claiming the preference possesses the business capacity necessary to discharge the duties of the place. If the officer authorized to make an appointment refuses to perform the duty imposed by this statute, or acts in bad faith, or abuses the discretion reposed in him, he may be subject to indictment or impeachment, or both, but the power of removal is not abrogated or restricted. The duty of the warden in making appointments of guards and keepers in the prisons is of the most important and delicate nature. The. appointees should be capable of forming a correct judgment in regard to the conduct of prisoners, able to discern their motives and purposes and to meet an emergency when necessary. They should possess the necessary qualities of temper, courage and loyalty. No statute can be drawn so as to describe an ideal appointment to a place the duties of which involve the care a.nd control of convicts in the prisons of the state. The selection in the end must be left to the discretion and judgment of some one, and this the statute fully recognizes. To compel the superintendent or warden, charged with the management of the prisons and responsible for the manner in which the duty is discharged, to reinstate, against his judgment, a discharged keeper or guard would introduce into prison management a most mischievous principle. It might and probably would produce great demoralization and tend to the destruction of all order and discipline. It would have much the same effect upon prison discipline, though perhaps in a less degree, that it would have upon military discipline if appointments and removals in the army were to be regulated by the writ of mandamus.

The case has thus far been considered without reference to another statute. Laws of 1889, ch. 382. This statute in express-terms confers power upon the agent and- warden to appoint the keepers and to remove them. It expressly applies to the prisons and was enacted subsequent to the statute giving preference in-certain cases to soldiers, and subsequent to the Civil Service Laws. It leaves the appointment and removal of keepers and guards in the prisons to the judgment and discretion of the agent and warden, subject to the approval of the superintendent. It enacts the same policy outlined in the constitution itself, and which the legislature did not intend to disturb by the so-called Soldier Law of 1887. But even if all this were otherwise and it could be maintained that the discretion of the appointing power is restricted by the former act, then these restrictions must be deemed to be removed by the latter statute which alone contains-the rule upon which appointments and removals in the prisons must be regulated. So the discharge of the relator was within the power and discretion of the agent and warden. It is within the same discretion to reinstate him or not, and hence the writ - of mandamus was properly refused. The order appealed from should be affirmed, with costs.

All concur.

Order affirmed.  