
    (71 Hun, 202.)
    PEOPLE ex rel. GRIFFIN v. LATHROP, Superintendent, et al.
    (Supreme Court, General Term, Second Department.
    July 28, 1893.)
    1. State Officers—Superintendent and Warden op Prisons—Appointment and Removal op Keeper—Authority—Control by Legislature.
    Const, art. 5, § 4, provides that the superintendent of state prisons shall have the superintendence, management, and control of state prisons, “subject to such laws as now exist or may hereafter be enacted;” he shall . appoint the agents, wardens, physicians, and chaplains of the prisons; and that the agent and warden of each prison shall appoint all other officers of such prison except the clerk, subject to the approval of the same by the superintendent. Held, that the power of appointment and removal of a keeper of a prison, conferred on the superintendent and the agent and warden, is subject to legislative limitation and control.
    2. Same—Union Soldier as Keeper—Authority op Warden to Remove.
    Laws 1887, c. 464, §§ 1, 2, provide that in the public departments, and in noncompetitive examinations under the civil service laws when they apply, “honorably discharged soldiers and sailors shall be preferred for appointment and employment,” etc., and all persons having appointing power are required to faithfully comply with the terms of the statute in letter and spirit. Laws 1889, c. 382, § 30, repeats the authority given by the constitution to the superintendent and warden as to appointments, and provides that each shall have the power to remove his appointees, when, in his judgment, the public interests require it. Held!, that a keeper of Sing Sing prison, who is an honorably discharged soldier, and has faithfully discharged his duty as such officer for many years, has no absolute right to such position; and, while the warden has no authority to remove him for political reasons, he may remove him when, in his honest judgment, the public interests require it.
    3. Same—Finding—Sufficiency of Evidence.
    Where, in an action to compel such warden to restore him, the claim of such keeper that he was removed for political reasons is scarcely supported by sufficient evidence, and is denied by such warden, who states that he acted solely for the good of the service, the finding against the former by the trial court will not be disturbed on appeal.
    Appeal from special term, Dutchess comity.
    Application by the people of the state of New York on the relation of John J. Griffin for a peremptory writ of mandamus to compel Austin Lathrop, superintendent of state prisons, and William R Brown, agent and warden of Sing Sing prison, to reinstate relator as guard or keeper of Sing Sing prison, from which office he was removed by such agent and warden. From an order denying the writ, relator appeals.
    Affirmed.
    Relator is an honorably discharged Union soldier, and had been continuously either a guard or keeper in Sing Sing prison, by appointment of the agent and warden, from 1866 to September, 1891, when he was removed by such officer without any charges being preferred against him. Relator claimed that he was removed for political reasons, but this is denied in the affidavit of the agent and warden, who states that he removed relator solely for the good of the service, by virtue of the discretion vested in him as such officer, and by the direction and approval of the superintendent of the state prisons. Relator contends that under Laws 1887, c. 464, the agent and warden had no authority to remove him, he being an honorably discharged Union soldier; and that he has an absolute right under such statute to hold the position of keeper in such prison, from which he was removed. On the part of the officers of the prison it is contended that the state constitution (article 5, § 4) confers on them the absolute power of appointment tó and removal from the office of keeper, and that the legislature of the state has no power to limit or control the exercise of their discretion in such appointment or removal; and that such power is also conferred by Laws 1889, c. 882, § 30, which repeats in substance the provisions of the constitution, but which, it is claimed, cannot be construed as adding to or limiting the authority already existing in such officers.
    Laws 1887, c. 464, provides as follows: “Section 1. In every public department and upon all works of the state of New York, and of the cities and towns, thereof, and also in noncompetitive examinations under the civil service laws, rules and regulations, wherever they apply, honorably discharged soldiers and sailors shall be preferred for appointment and employment; age, loss of limb or other physical impairment which does not in fact incapacitate sliall not be deemed to disqualify them, provided they possess the business capacity necessary to the discharge of the duties of the position involved. Bee. 2. All officials or other persons having power of appointment to, or employment in, the public service as set forth in the first section of this act, are charged with a faithful compliance with >ts terms, both in letter and spirit, and failure therein shall be a misdemeanor.”
    Argued before DYKMAH and PRATT, JJ.
    Horace D. Ellsworth, for appellant.
    S. W. Rosendale, Atty. Gen., and John W. Hogan, Dep. Atty. Gen., for respondents.
   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 (section 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 (chapter' 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 Mr 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 pre-eminent 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 Ms services, even at the expense of creating a vacancy for that purpose? We tMnk 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 relateras 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. 
      
       Article 5, § 4, provides as follows: “A superintendent of state prisons shall be appointed by the governor, by and with .the advice and consent of the senate; * =•• * he shall have the superintendence, management and control of state prisons, subject to such laws as now exist or may hereafter be enacted; he shall appoint the agents, wardens, physicians and chaplains of the prisons. The agent and warden of each prison shall appoint all other officers of such prison except the clerk, subject to the approval of the same by the superintendent. The comptroller shall appoint the clerks of the prisons, * *
     
      
       Laws 1889, c. 382, § 30. provides that the superintendent oí state prisons shall appoint the agent and warden, etc., of each of said prisons, as provided in the constitution, and he may remove them from office whenever, in his judgment, the public interests shall so require; that he shall designate such number of keepers, etc., at each of said prisons as he may deem necessary for the safe-keeping and improvement of the prisoners, or for the maintenance of discipline, and he shall also designate which of them shall reside at the prison; that the agent and warden of each of said prisons shall appoint, subject to the approval of the superintendent of state prisons, a principal keeper and other employes of such prison designated by the superintendent of state prisons; and that such agent and warden shall have the power to remove such subordinate officers and employes so appointed by him.
     