People ex rel. Smith v. Hoffman

32 Misc. 379, 66 N.Y.S. 2

Opinion

Giegerich, J.

The Governor unquestionably had the power to appoint the Board of Examination (Military Code, § 64), which decided that the petitioner was unfit for service in the National Guard of the State of New York. The proceedings and report were approved by the Governor, the Commander-in-Chief of the National Guard, and thereupon, by operation of law, the petitioner was discharged from the service (Military Code, § 64). The proceedings did not, as claimed, partake of the character of a judicial inquiry, but were had in aid of the Commander-in-Chief, to enable him to understandingly exercise his discretion in determining the fitness of an officer to hold his commission. The approval by the Governor was a function which, under the law, was vested in him in connection with the State Military Department, and the proceedings generally related to the exercise of power by the executive, and are not subject to control by the judicial department. 8 Am. & Eng. Ency. of Law, 1401. The motion is, therefore, granted.

Motion granted.