#### The People of the State of New York ex rel. John J. Griffin, Appellant, *v.*Austin Lathrop, Superintendent of State Prisons, and William R. Brown, Agent and Warden of Sing Sing Prison, Respondents.

*The State prisons*— power *of the wardens to a/ppoint and, remove their subordinates*— *honorably discharged Union, soldiers.*

The power conferred upon the wardens of the State prisons by section 4 of article 5 of the Constitution of the State of New York, to appoint officers of their respective prisons, subject to the approval of the Superintendent of State Prisons, is subject to regulation and control by the Legislature.

The power conferred upon the wardens of the Stite prisons by subdivision 3 of section 30 of chapter 383 of the Laws of 1889, to remove subordinate officers and employees appointed by them with the approval of the Superintendent of State Prisons, must not be exercised for political or personal or merely arbitrary reasons, but wholly for the efficiency of that branch of the public service.

To the extent of being empowered to remove subordinate officers and employees for the good of the service, in the honest exercise of sound discretion, the wardens of the State prisons are relieved by the act of 1889 from the force of acts prior to 1889 in relation to the appointment and removal of honorably discharged Union soldiers and sailors in the public departments of the State of New York; but, subject to this broad discretion, the wardens are bound to give preference to such soldiers and sailors in cases otherwise evenly balanced. The fact that a duly appointed keeper in a State prison is an honorably discharged Union soldier does not give him a vested right in his office, and he may be removed therefrom by the warden, in an honest exercise of discretion, for the good of the prison service.

The wardens of the State prisons are responsible to the criminal authorities for the discharge of their duty in the appointment and removal of subordinates ; and the question may be reviewed also by the courts in a proceeding for mandamus.

Appeal by the relator, John J. Griffin, from an order made at Special Term and entered in the office of the clerk of Westchester county on the 31st day of December, 1892, denying the relator’s motion for a peremptory writ of mandamus directing the respondents to reinstate the relator as a keeper in Sing Sing State prison.

The relator, an honorably discharged Union soldier, on or about March 8, 1866, was appointed guard at Sing Sing prison, and continued as such until April 1,1869. July 26,1873, he was appointed keeper, and held that position until 1879. October 1, 1879, relator was again appointed guard. April 1, 1880, he was promoted to the position of keeper, and held that position continuously *203until September 25, 1891. On tbe day last named the relator was relieved of duty by tbe agent and warden. At tbe time of the discharge relator gave notice to the agent and warden that be, relator, was an honorably discharged soldier, and as such claimed preference and continuance in employment as such, and after such notice the agent and warden discharged the relator. The agent and warden of Sing Sing prison bled an affidavit alleging his appointment as such officer under the provisions of section 4, article 5 of the Constitution, and that tbe removal of relator was made by him by the direction and approval of the Superintendent of State Prisons, by virtue of tbe power granted to so remove, by tbe Constitution of this State. Relator applied for a writ of peremptory mandamus to compel his reinstatement, and a hearing was had thereon at Poughkeepsie Special Term, September 24, 1892, and tbe application was' denied, whereupon tbe relator appealed to the General Term.

Section 4 of article 5 of tbe Constitution of the State of New York contains the following provisions: “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; be 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. The Superintendent shall have all the powers and perform all the duties not inconsistent herewith, which have heretofore been had and performed by the Inspectors of State Prisons; * * * ” ' *■

Section 30 of chapter 382 of the Laws of 1889, entitled “ An act to amend title 2 of chapter 3 of part 4 of the Revised Statutes, relating to State prisons and for other purposes connected therewith,” contains the following provisions: *“*§ 30. The Superintendent of State Prisons shall appoint the agent and warden, physician and chaplain of each of the saic. prisons, as provided in the Constitution ; and he may remove them from office whenever in his judgment the public interests shall so require. He shall designate such number of keepers, guards, teachers and other einployees at each of *204said prisons as lie may deem necessary for tlie safe-keeping and improvement of the prisoners or for the maintenance of discipline, and he shall also designate which of them shall reside at tlie ■prison. * * *

“ 2. The agent and warden of each of said prisons shall appoint, subject to the approval of the Superintendent of State Prisons, a principal keeper, a store keeper, a kitchen-keeper, a hall-keeper, a yard-keeper, a sergeant of the guard, and so many other keepers, guards, teachers and employees of such prison as shall be designated by the Superintendent of State Prisons as aforesaid, and such agent and warden shall have the power to remove such subordinate officers and employees so appointed by him.

“3. No appointment shall be made in any of the State prisons of this State on the grounds of political partisanship; but honesty, capacity and adaptation shall constitute tlie rulo for appointments, and any violation of this rule shall be sufficient cause for the removal from office of the officer committing such violation. * * * ”

The legislation in reference to the appointment and removal of honorably discharged Union soldiers and sailors in the public departments of the State of New York is to be found in chapters 312 and 410 of the Laws of 1884, chapter 20 of the Laws of 1886, and chapter 464 of the Laws of 1887,

*Horace .D. Ellsworth,*for the relator.

*8. W. Rosendale, Attorney-General, &&& John W. Ilogan, Deputy Attorney-General,*for the 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 (§ 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.” *205Hence, tbe superintendent is certainly subject to tbe action of tbe Legislature in tbe exercise of tbeir “management and control.”. Tbe warden is to be appointed by tbe superintendent. True, tbe. Constitution does not say tliat tbe warden is subject to tbe control of tbe Legislature, but *Ms power*of appointment is subject to tbe “ approval of tbe same by tbe superintendent.” It is plainly subordinate to tbe superintendent, and it would be singular indeed if tbe warden is not bound to obey tbe letter and spirit of a statute which bis superior is bound to observe.

We find nothing necessarily inconsistent between tbe act of 1889 (Chap. 382) and prior statutes, so far as they bear on the point here involved. Tbe only difficulty is in tbeir application. Tbe 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 tbe efficiency of this branch of the public service.

Tbe warden is undoubtedly vested with a most important trust-.. His employees 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, tbe widest latitude was needed and was extended by the act of 1889, in this case to tbe warden, and to that extent he was relieved from tbe force of acts prior to 1889. But, subject to this broad discretion, we think be was bound to give preference to honorably discharged Union soldiers and sailors in cases otherwise evenly balanced. But it must be observed that tbe discretion is *so*broad that it is difficult to determine judicially just where this officer may err in one direction or tbe other. It'was and is undoubtedly a question of fact whether be acted within tbe line of bis duty in this case —■ that is to say, that whether or not bis honest judgment was that tbe public interests required tbe removal of this relator. If be so honestly judged, I do not see why we should, or bow we can, lawfully interfere. It would undoubtedly be our duty to determine, in a proper case, whether or not be acted honestly or dishonestly in tbe premises; but we see no fair reason to question bis action in that regard in this case.

*206It 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 tlmre 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 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., concurred; BabNAed, P. J., not sitting.

Order denying writ of mandamus affirmed.