Opinion
November Term, 1901.
Alexander S. Bacon, for the relator.
John C. Davies, Attorney-General, for the respondents.
This is a certiorari to review the proceedings of a board of examination, appointed by the Governor, under the provisions of section 64 of the Military Code (Laws of 1898, chap. 212), by general orders No. 7, to examine into the moral character, capacity and general fitness of the relator for service as a commissioned officer in the National Guard of the State.
The Court of Appeals in People ex rel. Smith v. Hoffman ( 166 N.Y. 462) has decided that this very board was acting judicially in this matter, and that its action is subject to review in the civil courts by a writ of certiorari.
That question being settled, we are now called upon to review those proceedings, and the Attorney-General practically concedes that they were not such as are required in tribunals exercising judicial functions.
When the relator appeared before such board he asked to be represented by counsel. That privilege was denied him. Such refusal was an error which, in itself, requires that the decision of such board be reversed and set aside. ( People ex rel. Mayor v. Nichols, 79 N.Y. 582; People ex rel. McDonald v. Keeler, 99 id. 485; People ex rel. Campbell v. Hannan, 56 Hun, 471; People ex rel. Ellett v. Flood, 64 App. Div. 209.)
This conclusion renders it unnecessary to examine any of the other alleged errors of which the relator complains.
The determination of the board must be reversed and "orders No. 37," which is based thereon, must be vacated and set aside.
We are asked by the relator to also vacate "orders No. 7." That was the order which convened and created the board, whose proceedings we are now reviewing. It was made by the Governor and antedated all such proceedings. It is not within the scope of this writ, and, therefore, should not now be vacated.
All concurred.
Determination of the board of examiners reversed and order No. 37 vacated, with fifty dollars costs and disbursements.