People ex rel. Smith v. Hoffman

New York Supreme Court

People ex rel. Smith v. Hoffman

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

CourtNew York Supreme Court

DecidedAugust 15, 1900

StatusPublished

Cited by5 cases

This text of 32 Misc. 379 (People ex rel. Smith v. Hoffman) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People ex rel. Smith v. Hoffman, 32 Misc. 379, 66 N.Y.S. 2 (N.Y. Super. Ct. 1900).

Pincite

Opinion

Giegerich, J.

The Governor unquestionably had the power to appoint the Board of Examination (Military Code, § 64), which [380]*380decided 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.

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Giegerich, J.

The Governor unquestionably had the power to appoint the Board of Examination (Military Code, § 64), which [380]*380decided 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.

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Bluebook (online)

32 Misc. 379, 66 N.Y.S. 2, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-smith-v-hoffman-nysupct-1900.

Opinion

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