The People of the State of New York ex rel. Clinton H. Smith, Relator, v. Peter C. Doyle and Others, Respondents

The People of the State of New York ex rel. Clinton H. Smith, Relator, v. Peter C. Doyle and Others, Respondents. Certiorari-—not granted to review the proceedings of an examining hoard appointed under section 64 of the Military Code. An examining board appointed under section 64 of the Military Code (Laws of 1898, chap. 212) to “ examine into the moral character, capacity and general fitness for the service” of any commissioned officer of the National Guard of the State of New York ordered before it, and to return the testimony taken and a record of its proceedings to the Governor, does not possess or exercise judicial functions, and its proceedings cannot he reviewed by certiorari. Appeal by the relator, Clinton H. Smith, from an order of the Supreme Court, made at the Hew York Special Term and entered in. the office of the clerk of the county of Albany nuno pro tuno as of the 16th day of August, 1900, dismissing a writ, of certiorari issued July 14, 1900, directed to Peter C. Doyle and others, members,. and Martin Carey, recorder, ■ of a Board of examination - appointed by the Governor, and to Theodore Roosevelt, as the Governor of. the State of Hew York, and Edward M. Hoffman, as Adjutant-General of the State of Hew York, commanding them to 'certify, return to and file in the office of the clerk of Albany county all and singular their proceedings concerning their examination, findings, removal from office and discharge from the military service of the relator, as a commissioned officer in the Hational Guard of the State. The relator,- who was a commissioned officer in the Hational Guard of this State, was, on May 1, 1899,. in pursuance of the provisions oí section 64 of the Military Code, ordered by the Governor before a board of examination, appointed by him to examine into the relator’s moral character, capacity and general fitness for the service.. The findings of such board, unfavorable to the ■ relator, were approved by the Governor, and the relator was discharged from the service. Thereafter, on July 14, 1900, upon the ex parte application of the relator, a writ of certiorari to review the proceedings was issued, and, on August 16, 1900, the said writ was, on notice, by an order of the Special Term, dismissed.' From that order this appeal is taken. Section 64 of the Military Code (Laws of 1898, chap. 212) reads as follows : “ The Governor may, whenever he may deem that the good of the service requires it, order any commissioned officer before a board of examination, to consist of not less than three nor more than five general or field officers, which is hereby invested with the powers of courts of inquiry and courts-martial, and such board shall examine into the moral character, capacity and general fitness for the service of such commissioned officer and record and return the testimony taken and a record of its proceedings. If the findings of such board be unfavorable to such officer and be approved .by the Governor, he shall be discharged from the service. Ho officer whose grade or promotion would in any way be affected by the decision of such hoard, in any case that may come before it, shall participate in the examination or decision of the board in such case. Failure to appear when ordered before a board constituted under this section shall be sufficient ground for a finding by such board that the officer ordered to appear he discharged.” Alexander S. Bacon, for the appellant. John C. Demies, Attorney-General, and Ed'ward P. Coyne, for the respondents. [MAJORITY — Edwards, J.:] Edwards, J.: The power of the Governor to appoint the board of examination cannot be doubted, and the question for our consideration is whether the proceedings of the board are re viewable by the court. I cannot agree with the contention of the learned counsel for the relator that the board is a court or a body which, in its legal sense, possesses or exercises judicial functions. I am of opinion that it is simply an agency created by statute to properly advise the Governor, as com-" mander-in-chief, in respect to the fitness of a commissioned officer to remain in the service. It is not invested with power to try the officer on specific charges, but its sole function is to examine into his fitness for the service and to report its proceédings to the Governor. While it may take testimony, it is not limited in its character, but may take such as is pertinent to the subject of the inquiry, the fitness of the officer. Nor is ft restricted in its examination to the taking of testimony. There may be a mental or physical unfitness of the officer which is apparent to the members of the board on personal observation. Nor does the board make any determination. It is true that the statute speaks of their "findings, but it is evident that the word is used more in the sénse of recommendation, and their findings have no effect without the approval of the Governor. This opinion as to the character of the board is, confirmed by reference to other provisions of the Military Code. Article Y of that Code is entitled “ Military Courts.” It names the different military courts of the State, provides how they shall be constituted, their procedure, and, except “ courts of inquiry,” confers the power to try fo" the military offenses therein specified, to convict and to punish. The board of examination is not included in the military courts enumerated in that article, but is provided for in article 4. Sections 53 and 54 of that article require that before being commissioned every officer, except certain ones therein exempted, must have passed a satisfactory examination before the board of examination as to his knowledge of military or naval affairs and general knowledge and fitness for the service, and also clothe the board with the same powers to. conduct its examination as are given by section 64 in question. It will be observed that the provisions of these sections and those of section 64 are similar, and the purpose is the same in each. Each is simply an examination in respect to the fitness of the person, the one to enter and the other to continue in the service. ■ The opinion herein expressed in regard to the nature and functions of a board of examination finds support in the opinion of Mr. Justice Beekman in People ex rel. Smith v. Doyle (28 Misc. Rep. 411), and in the Appellate Division in the same case (44 App. Div. 402). It is well settled that the court can review on certiorari only a judicial determination. (People ex rel. Leo v. Hill, 126 N. Y. 497.) Having reached this conclusion, the consideration here of the question whether the writ of certiorari will lie against the Governor is unimportant. I agree with the learned counsel for the relator that “ the only real question before the court is to determine whether a board of examination exercises a judicial function.” The order dismissing and vacating the writ of certiorari should be affirmed. All concurred. Order affirmed, with ten dollars costs and disbursements.