
    The People ex rel. John J. Griffin, App’lt, v. Austin Lathrop, Superintendent of State Prisons, and William M. Brown, Warden of Sing Sing Prison, Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 28, 1893.)
    
    1. State prisons—Power of removal by warden.
    The power of appointment of a warden of a state prison being subject to the approval of the superintendent of state prisons, he is bound to obey the letter and spirit of an act passed by the legislature in the exercise of their “ management and control” of the prisons.
    2. Same—Laws 1889, chap. 382.
    There is nothing necessarily inconsistent between chap. 382, Laws 1889, and the acts relating to honorably discharged veterans and the civil service.
    3. Same.
    The warden of a state prison has a broad discretion as to the appointment and removal of subordinates, the efficiency of the service being the chief consideration; and while he is bound to give preference to honorably discharged Union soldiers and sailors in cases otherwise evenly balanced, yet where in his honest judgment the public interests require the removal of a veteran his action will not be interfered with.
    Appeal from order denying motion for a writ of peremptory mandamus to compel the reinstatement of relator as a keeper of Sing Sing prison.
    Delator, who was an honorably discharged Union soldier, had been since 1866 a guard or keeper of Sing Sing prison. He continued to hold said position until September 25, 1891, when, he was discharged by the warden.
    
      Horace D. Ellsworth, for app’lt; S. W. Rosendale, atty. gen. (John W. Hogan, dep. atty. gen., of counsel), for resp’ts.
   Pratt, J.

The points involved in this case gravely affect the public service, and we assume that they will be submitted to the court of appeals. Perhaps the ends of justice might be served quite as well if, under these circumstances, we merely announced our conclusion without any opinion. But we, nevertheless, briefly state our view.

The constitution, § 4, art. 5, undoubtedly vests the superintendence, management and control of the state prisons in the superintendent of state prisons, but that management and control is “subject to such laws as now exist or may hereafter be enacted.” Hence the superintendent is certainly subject to the action of the legislature in the exercise of their “management and control.” The warden is to be appointed by the superintendent. True, the constitution does not say that the warden is subject to the control of the legislature, but his power of appointment is subject to the “approval of the same by the superintendent.” It is plainly subordinate to the superintendent, and it would be singular indeed if the warden is not bound to obey the letter and spirit of a statute which his superior is bound to observe.

We find nothing necessarily inconsistent between the act of 1889, ch. 382, and prior statutes, so far as they bear on the point here involved. The only difficulty is in their application. The warden’s power of removal from office must not, in our judgment, be exercised for mere political or personal or other arbitrary reasons, but wholly for the efficiency of this branch of the public service.

The warden is undoubtedly vested with a most important trust. His employes must be men of great skill in judging of men, particularly those who become prisoners, and, above all, men of absolute loyalty, courage, coolness and bravery—nerve, as it is sometimes expressed. It is not according to our experience that these qualities are always found in the people who are most proficient in geography or arithmetic, or any other acquirement of that character. Hence, the widest latitude was needed and was extended by the act of 1889, in this case to the-warden, and to that extent he was relieved from the force of acts prior to 1889. But, subject to this broad discretion, we think he was bound to give preference to honorably discharged Union soldiers and sailors in cases otherwise evenly balanced. But it must be observed that the discretion is so broad that it is difficult to determine judicially just where this officer may err in one direction or the other. It was and is, undoubtedly, a question of fact whether he acted within the line of his duty in this case—that is to say, whether or not his honest judgment was that the public interests required the removal of this relator. If he so honestly-judged, I do not see why we should or how we can lawfully interfere. It would undoubtedly be our duty to determine, in a proper case, whether or not he acted honestly or dishonestly in the premises; but we see no fair reason to question his action in that regard in this case.

It was natural that the relator should think that his removal was attributable to purely political considerations. But that is a mere conclusion at best and is scarcely supported by sufficient evidence. Besides that, the allegation is denied by the warden, who says that he acted solely for the good of the service. The relator may have been, and doubtless was an excellent man, one wholly satisfactory in general ways; but what if the warden should discover that there was at his service another man of preeminent ability, whose skill and service he could secure in this department of the public service ? Can there be any doubt, in view of this statute, that the warden would be authorized to secure his services even at the expense of creating a vacancy for that purpose? We think not. The public interest, in that case, might require a removal of the least efficient, though perhaps fair man, as means of greater efficiency, for that matter is always relative. It will be thus seen that we do not accept this proposition, that the relator’s office gave him a vested right in the office which he might hold as his property. ' The efficiency of the service is the controlling consideration. The relator held his place subject to the warden’s judgment of the public interest, to be honestly exercised. We see no reason to disturb the judgment of the learned judge at special term on this question of fact.

The warden is, doubtless, responsible to the criminal authorities for his discharge of this duty. So, too, we think that a court in such a proceeding as this may review that question; but we do not see, that the relator has placed himself in a position where we can help him in that particular now.

We, therefore, affirm the order.

Dykman, J., concurs; Barnard, P. J., not sitting.  