
    MATTER OF KINGS COUNTY INSANE ASYLUM.
    N. Y. Supreme Court, Second Department, Second District;
    
    
      Special Term, September, 1878.
    Insane Persons.—State Commissioner in Lunacy.—County Commissioners of Charities.—Insane Asylums.
    The commissioners of charities of a county, in the exercise of their powers, are subject to the supervision and control of the State com- ■ missioner in lunacy, who may require them to conform, in their management of the county insane asylum, to his directions.
    Where, from evidence laid before the State commissioner, he believes that any person is wrongfully deprived' of his liberty, or is maltreated in any institution for the insane, or there is inadequate provision made for the skillful medical care, proper supervision and safe keeping of the insane, he may institute a formal inquiry, of a judicial nature, into the matter, and may issue process to compel the attendance of witnesses, and production of papers, &c.; and while conducting such inquest, he is invested with the same powers as belong to referees.
    His function's, in respect to such an inquest, are analogous to those of a grand jury; and he need not resort to compulsory process, but may take and act on evidence voluntarily laid before him by affidavit.
    The powers conferred upon him by the legislature should be liberally interpreted.
    Where, in a verified petition to the State commissioner in lunacy, facts were stated which tended to show that county commissioners of charities had made inadequate provision for the skillful medical care of the insane under their charge^—Reid, that the evidence was competent, and, if satisfactory to the State commissioner, sufficient to give him jurisdiction to make an order requiring the county commissioners to retain the medical superintendent of their asylum until good and sufficient cause for his removal had been shown them.
    Demurrer to jurisdiction of state commissioner in lunacy, and order to show cause in proceedings for contempt.
    On August 1, 1878, the board of commissioners of charities of Kings county passed a resolution dismissing the medical superintendent of Kings county lunatic asylum, and appointed his successor, both to take effect on September 1, 1878.
    On the 20 th of the same month a resident and taxpayer of the county presented to the State commissioner in lunacy a petition setting forth that no charge of any kind, affecting the executive, moral or professional character of the superintendent of the asylum had been presented by the commissioners ; that frequent changes had been made during the last five years, which changes impaired the skillful medical care and proper supervision of the inmates of the asylum, and served to weaken public confidence in its usefulness as a hospital for the insane, and that the person appointed to succeed the superintendent had had no special experience in the treatment of the insane, or the management of asylums for the insane.
    Upon this petition the commissioner issued an order to the board of commissioners commanding them to retain the dismissed superintendent “ until good and sufficient cause be shown to you for his removal, and that you take such official proceedings upon this order as are required to obey the same, and how you shall have obeyed this our order make return to me on August 30, 1878, at my office,” &c.
    To this order the board of commissioners of charities made return at the required time that the removal of the superintendent was made by it for reasons that in its judgment justified his removal; that it was made by virtue of the legal power and authority vested in the board; it denied the removal would have the effect claimed, and alleged that it would have a contrary one; and that the board protested against the intrusion of the State commissioner in lunacy into the domain of its jurisdiction.
    Upon the certificate of the commissioner of lunacy an order was obtained on the day after this return, for the commissioners of charities to show canse why an order should not be made directing them to obey the first order of the State commissioner, and why they should not be punished for their misconduct and contempt in willfully disobeying the said order. The order also enjoined the commissioners of charities from removing or interfering with the superintendent.
    
      C. E. Lydecleer, for the commissioner in lunacy.
    All persons in legal custody are in the custody of the State, which cannot divest itself of its paramount supervision of all its citizens (Cooley Const. Lim. 282, 284). The State can enter and inquire into the manner of administration of any institution in which its citizens are held in custody. This is a police power and inalienable (Bonham’s Case, 8 Coke, 375). Every lunatic asylum is by law a public charity (L. 1874, c. 446). The powers of the State commissioner of lunacy are given by L. 1873, c. 571, § 13; L. 1874, c. 446 ; L. 1875, c. 574 ; L. 1876, c. 267 ; L. 1878, c. 47. These powers are judicial, and he is an adjunct officer of the supreme court, with all the powers belonging to a referee appointed by the same. His discretionary power may be exercised by him upon his own opinion of certain facts, that power constituting him the sole and exclusive judge of the existence of such facts (Vanderheyden v. Young, 11 Johns. 150 ; reaffirmed in Martin v. Mott, 12 Wheat. 19 ; Allen v. Blunt, 3 Story C. Ct. 743; Gould v. Hammond, 1 McAllister, 235). The State, through the supreme court and the State commissioner in lunacy, may exercise all the power originally belonging to the crown. In accordance with these principles it has been held that if a visitor be in his jurisdiction, his acts are not to be inquired into; if out of it, his acts are void; and it was also said that visitors have an absolute power which courts cannot control (King v. Bishop of Chester, 1 Wm. Blacks. 
      22 ; 2 Kyd on Corp. 282). Whence it follows that the jurisdiction of the visitor of an eleemosynary corporation is summary and without appeal (1 Burry 200 ; 1 Black. Com, 479 ; 3 Salk. 380; Dyer, 209 ; 3 Mod. 265). • Although the statutes defining the powers of the . State commissioner in lunacy in New York have modified these principles as to his jurisdiction, they have not abolished them so far as he acts as a referee of the supreme court. Kings county was empowered to retain and care for all its insane in an ásylutn of its own (L. 1845, c. 357, § 1). A party acting in contravention to a judicial mandate cannot thereby establish a new status which can prevent the court from enforcing its original order. It is the party who cannot change the status, but the court may (1 Story Eq. Jur. § 406, and cases cited; 6 Barb. 133-138 ; 2 Johns. Ch. 441).
    
      William Sullivan, for defendants.
    The order of the State, commissioner was beyond his power (L. 1871, c. 491; L. 1874, c. 114; L. 1867, c. 951 ; 7 Edm. Stat. p. 213 ; L. 1873, c. 571; L. 1873, p. 884 ; New York Juvenile Guardian Soc. Case, in Report of State Board of Charities for 1878, p. 105 ; People v. Osborn, 57 Barb. 663; Const. art. 10, §§ 2, 3 ; 5 Hun, 317; People v. Stout, 19 How. Pr. 171; People v. Beleck, 35 Barb. 254 ; 1 Duer, 497 ; L. 1858, c. 190; L. 1871, c. 491, § 9). He should have heard all parties before he made the order, and the proceedings should have been in Kings county (2 Kent Com. 302; Code Civ. Pro. § 983 ; L. 1878, p. 52, c. 47). The petition on which he acted did not. set forth facts warranting such an order (20 How. Pr. 93; 22 Id. 272; 13 Abb. Pr. 76; 7 Hill 187 ; 18 Wend. 610; 44 N. Y. 272). The order was not disobeyed as a matter of fact, for before it was made the,, superintendent was removed for a good and sufficient cause (People v. Stout, 19 How. Pr. 171; People v. Beleck, 35 Barb. 254). The commissioners.of charities were sole judges of the causes for removal (Same cases). The new appointee was in all respects competent. '
   Gilbert, J.

This is, as it seems to me, a plain case, and it probably would not have been presented to the court, but for a misconception on the part of the commissioners of charities, of the relation which they bear to the State commissioner in lunacy. Ho doubt the general management and administration of the asylum, including the selection, appointment and removal of persons employed in carrying on the several departments thereof, has been intrusted to the board composed of said commissioners. But the exercise of their powers is, in a large degree, subject to the supervision and control of the State commissioner in lunacy, and the latter is authorized to require the board to conform in their management of the asylum to such orders and directions, as he may, from time to time, give to them for the purpose of remedying evils, or defects, which have been proved to him to exist in such management, and which are injurious to the lunatics committed to their care. The statute from which the State commissioner in lunacy derives his powers, is broad and comprehensive. It is his duty to examine into the condition of the insane and idiotic in the State, and the management and conduct of the asylums, public and private, and other institutions for their care and treatment, and the officers and others respectively in charge thereof, are required to give to such commissioner at all times, free access to, and full information concerning the insane therein, and their treatment. In all cases, where, from evidence laid before him, there is reason to believe that any person is wrongfully deprived of. his liberty, or is maltreated in any asylum, institution or establishment, public or private, for the custody of the insane, or whenever there is inadequate provision made for théir skillful medical care, proper supervision and safe keeping, he is empowered to institute a formal inquiry, of a judicial nature, into the matter, and for the purposes of such inquest he is authorized to issue process to compel the attendance of witnesses, and the production of papers, and to enforce obedience to such process, and while conducting such inquest, he is invested with the same powers as belong to referees appointed by this court.

The functions of the commissioner in lunacy, in respect to such inquest, are analogous to those of a grand jury. But he is not required to exercise them in all cases. Whére testimony can be obtained voluntarily, it may be' taken by the commissioner in that way, and the formality of an inquest may be dispensed with. The holding of an inquest is only for the purpose of obtaining evidence compulsorily (L. 1874, c. 446, tit. 10, as amended by L. 1876, c. 267).

If either of the above mentioned facts shall be proved to his satisfaction, in either of the modes pointed out, he is further empowered to issue an order in the name of the people of this State, and under his official hand and seal, directed to the superintendent or managers of such institutions, requiring them to modify such treatment or apply such remedy, or both, as shall therein be specified. These extensive and quasi judicial powers have been conferred upon the commissioner in lunacy for the beneficent purpose of protecting a helpless class of citizens against ill usage, and of securing to them the benefits of the care and treatment which the State has immemorially provided for them. The question, “ who shall guard the guardian ? ” is a pertinent one at all times, and especially , to custodians of the insane. I entertain no doubt of the power of the legislature to confer such powers, and I think they should be liberally interpreted in furtheranee of the object mentioned (People ex rel. New York Inebriate Asylum v. Osborn, 57 Barb. 663).

In the case before me, a reputable citizen of Brooklyn made a deposition voluntarily before Dr. Ordronaux, the State commissioner in lunacy, on the 20th of August last, showing in substance that the commissioners of charities had directed a change to be made in the office of medical superintendent of the insane asylum by the removal of Dr. Parsons without any cause therefor, and the appointment of Dr. Shaw, who had had no special experience in the treatment of the insane. Dr. Ordronaux thereupon issued an order directed to said commissioners, whereby, after reciting the substance of said deposition, that frequent changes in the chief medical officer in asylums for the insane are calculated to impair that skillful medical care and supervision which is derived from long personal acquaintance with, and study of the individual phases of insanity, and that such changes in the Kings county asylum had been frequent, he commanded said commissioners to retain Dr. Parsons, until good and sufficient cause should have been shown to them for his removal. The commissioners made a return to this order, in which they denied the jurisdiction of the State commissioner in lunacy, and also that the removal of Dr. Parsons would have the effect stated in the order, and insisted that the interference of the State commissioners in lunacy with their power to make such removal was an intrusion into the domain of their jurisdiction. I am of opinion that the commissioners were in error on all of the points taken in their return. Dr. Ordronaux acquired jurisdiction to make the order, by virtue of the deposition referred to. That contained facts which tended to show that the commissioners had made inadequate provision for the skillful medical care of the .insane under their charge.

The evidence was competent, and taken in a proper manner. Of its sufficiency Dr. Ordronaux was made by the statute the sole judge in the, first, instance.': Having jurisdiction to make the order, it was the duty of the commissioners of charities to. obey it.. .If they had disobeyed the order it would have been the duty of the court to compel a performance thereof in the summary mode pointed out by the statute, unless they showed sufficient cause why said order should not be performed. . ... ......

I am of opinion, however, that .no. disobedience of the order of Dr. Ordronaux has been shown. The commissioners were required to retain Dr. Parsons only until good and sufficient cause for his removal should have been shown to them. It appeared on this hearing, that the removal of Dr. Parsons was, in fact, made for cause, and, as I-have already, intimated, if such cause had been set forth in .the return of the commissioners of charities to . Dr. Ordronaux’s order, that would have put an end to this proceeding. While I am glad to say that the reasons assigned for the removal of Dr. Parsons do not affect his qualifications as a physician, or as a specialist in the treatment of the insane, yet they must, for obvious.reasons, be. deemed by me good and sufficient. _• It may be a'dded that it was both conceded and proved that Dr. Shaw is in all respects competent for the position of medical superintendent. ; - ; - - . '

The motions arising upon the orders granted by me must, therefore, be denied, and all orders restraining the removal of Dr. Parsons are vacated, without costs.  