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laws shall provide. The resident officers shall admit the managers into every part of the institution, and shall exhibit to them on demand the books, papers, accounts and writings belonging to the institution, and shall furnish copies, abstracts and reports whenever required by the managers. The board shall keep in a bound book, to be provided for the purpose, a fair and full record of all its doings, which shall be open at all times to the inspection of its members, and all persons whom the governor and either house of the legislature may appoint to examine the (As amended by chapter 449 of the Laws of 1910.)
§ 68. Manner of receiving pupils. Feeble-minded children may be received into such institution upon the official application of a county superintendent of the poor, or the commissioners of charity of a city of the state having such officers. In the admission of feeble-minded children, preference shall be given to poor or indigent children over all others, and to such as are able or have parents able to support them only in part, over those who are or who have parents who are able to wholly support such children. (As amended by chapter 449 of the Laws of 1910.)
§ 69. Discharge of state pupils and payment of expenses. When the manager shall direct a state pupil to be discharged from the institution, the superintendent thereof may return him to the county from which he was sent, and the superintendent of the poor of the county shall audit and pay the actual and reasonable expenses of such return. If any town, county or person is legally liable for the support of such pupil, such expenses may be recovered by action in the name of the county by such superintendent of the poor. If the superintendent of the poor neglect or refuse to pay such expenses on demand, the treasurer of the institution may pay the same and charge the amount to the county; and the treasurer of the county shall pay the same with interest after thirty days, out of any funds in his hands not otherwise appropriated; and the supervisors shall raise the amount so paid as other county charges. (As amended by chapter 449 of the Laws of 1910.)
§ 70. Expense of clothing state pupils. The supervisors of any county from which state pupils may have been re
ceived shall cause to be raised annually, while such pupils remain in the institution, the sum of twenty dollars for each pupil, for the purpose of furnishing suitable clothing, which shall be paid to the treasurer of the institution on or before the first day of April. The superintendent may agree with the parent, guardian or committee of a feeble-minded child, or with any person, for the support, maintenance and clothing of such child at the institution, upon such terms and conditions as may be prescribed in the by-laws, or approved by the managers. Every parent, guardian, committee, or other person applying for the admission into the institution of a feeble-minded child who is able, or whose parents or guardians are of sufficient ability to provide for his maintenance therein, shall at the time of his admission deliver to the superintendent an undertaking, with one or more sureties, to be approved by the managers, conditioned for the payment to the treasurer of the institution of the amount agreed to be paid for the support, maintenance and clothing of such feeble-minded child, and for the removal of such child from the institution without expense thereto, within twenty days after the service of the notice hereinafter provided. If such child, his parents or guardians are of sufficient ability to pay only a part of the expense of supporting and maintaining him, such undertaking shall be only for his removal from the institution as above mentioned; and the superintendent may take security by note or other written agreement, with or without sureties, as he may deem proper, for such part of such expenses as such child, his parents or guardians are able to pay, subject, however, to the approval of the managers in the manner that shall be prescribed in the by-laws. Notice to remove a pupil shall be in writing, signed by the superintendent and directed to the parents, guardians, committee or other person upon whose request the pupil was received at the institution, at the place of residence mentioned in such request, and deposited in the post-office at Syracuse with the postage prepaid. If the pupil shall not be removed from the institution within twenty. days after service of such notice, according to the conditions of the agreement and undertaking, he may be removed and disposed of by the superintendent as herein provided in relation to state
pupils, and the provisions of this article respecting the payment and recovery of the expenses of the removal and disposition of a state pupil shall be equally applicable to expenses incurred under this section. This section, as amended, shall supersede and control any other provision of this chapter inconsistent herewith in its application to such institution. (As amended by chapter 609 of the Laws of 1911.)
§ 71. Consent of board of managers to construction of intercepting sewer system. The board of managers of the Syracuse State Institution for Feeble-Minded Children shall have power and authority to grant to the city of Syracuse an easement to lay, construct and maintain as a part of the general intercepting sewer system of said city a sewer or sewers in, through, under and along the lands of said *institutions in the city of Syracuse, and to change the channel of Harbor brook through the lands of said institution upon such conditions as said board may prescribe. (Added by chapter 376 of the Laws of 1910.)
State Custodial Asylum for Feeble-Minded Women
Section 80. Established as a corporation.
81. Board of managers.
83. Treasurer to give undertaking.
§ 80. Established as a corporation. The asylum established at Newark, Wayne county, for feeble-minded women is hereby continued as a body corporate and shall be known as the state custodial asylum for feeble-minded women.
§ 81. Board of managers. Such asylum shall continue to have a board of seven managers, three of whom shall be women, and shall be appointed in accordance with the provisions of section fifty-one of this chapter. The board of managers shall have the custody and control of all property and power to make all rules for the management and control of the affairs of the asylum. (As amended by chapter 449 of the Laws of 1910.)
* So in original.
§ 82. Officers. The board of managers shall appoint, of their number, a president, a secretary and a treasurer. They shall appoint a superintendent, a matron, and employ all assistants that may be necessary for the proper management of the asylum.
Boards of managers may remove superintendents not within the classes enumerated in section 21 of the Civil Service Law, as entitled to retain the office unless removed on charges after a hearing.
STATE OF NEW YORK,
ALBANY, September 27, 1909.
Hon. ALBERT P. FOWLER, President, Board of Managers, New York State Custodial Asylum for Feeble-Minded Women.
504 Dillaye Memorial Building, Syracuse, N. Y.
DEAR SIR. I have the request of your board of managers for my opinion as to the validity of the action taken by them to remove the superintendent of the State Custodial Asylum for Feeble-Minded Women. I note from this letter that at a regular meeting of the board held September 1, 1909, a resolution was passed in the following form:
'Moved by Mr. Dey and seconded by Mr. Kemper that the following resolution be adopted:
"Resolved, That Mr. C. W. Winspear, superintendent of the State Custodial Asylum for Feeble-Minded Women at Newark, N. Y., shall not continue in the service of the institution after the 30th day of September, 1909.
66 Motion carried."
I note further that the superintendent requested that he might have a conference with your board upon such dismissal, and in compliance with his request an adjourned meeting was held at the institution at which the reasons which moved the board to vote for his dismissal were placed upon the record. You also state that at said adjourned meeting the superintendent filed a written statement which contains, among other things, a claim that your board has no power to remove him. I also note that he stated that he was neither an honorably discharged soldier, sailor, marine nor volunteer fireman, which positions are specifically referred to in section 21 of the Civil Service Law.
The precise question presented is that of the legal power of your board to remove the superintendent. The sections of law governing your institution are sections 80 to 83 inclusive of the State Charities Law. Section 80 established the institution as a body corporate. Section 81 provides that it shall have a board of managers; and further, "The board of managers shall have the custody and control of all property and power to make all rules for the management and control of the effects of the asylum." Section 82 provides as follows:
Section 82. Officers. The board of managers shall appoint, of their number, a president, a secretary and a treasurer. They shall appoint a superintendent, a matron, and employ all assistants that may be neces sary for the proper management of the asylum."
Section 43 of the State Charities Law provides as follows:
'Section 43. Removals by governor.- A fiscal supervisor of state charities, or the superintendent or the steward of any institution subject to the provisions of this article, may be removed by the governor for cause, an opportunity having been given him to be heard in his defense." Section 3 of article 10 of the State Constitution provides as follows:
"Section 3. Duration of term.- When the duration of any office is not provided by this Constitution it may be declared by law and if not so declared, such office shall be held during the pleasure of the authority making the appointment."
The question is whether the grant of the power of removal on charges to the Governor, contained in section 43, takes away the power of removal which would ordinarily belong to the board of managers as an accompaniment of their power of appointment.
The constitutional provision above quoted provides that the duration of the term of office may be declared by law, but if not so declared, the office shall be held during the pleasure of the appointing power. It therefore follows that unless the provision contained in section 43 allowing the Governor to remove the superintendent upon charges is a declaration by law of the duration of the office, the constitutional provision will apply and the superintendent be subject to removal by your board.
After giving the matter careful consideration, I am of the opinion that the grant of the power to the Governor to remove the superintendent is not a declaration by law of the duration of the office. It is what might be termed
a special or supervisory power given to the Governor to investigate and remove incompetent officials where the board of managers might fail to do its duty. The "duration" of an office is not declared by such a statute. People ex rel. Attorney-General v. Hill, 7 Calif. 97.
I am also of the opinion that irrespective of this constitutional provision, the board of managers has the power to remove under well-settled rules of statutory construction. It has long been decided in this State that the power to appoint contained in a statute carries with it by necessary implication the power to remove, in the absence of statutory provisions to the contrary.
People v. The Mayor of New York, 5 Barb. 43.
People ex rel. Sims v. Fire Comrs., 73 N. Y. 437, 441, and cases cited.
People ex rel. Griffin v. Lathrop, 142 N. Y. 113-116.
People ex rel. Corrigan v. The Mayor, 149 N. Y. 215, 224.
It would therefore follow that unless the section giving the Governor the right to remove the superintendent on charges is inconsistent with the exercise of the right of removal by the board of managers, such latter right exists. An examination of the other sections of the statute discloses, that in many instances, the boards of managers or trustees of charitable institutions are expressly given the power of removal which exists, side by side, with the power given to the Governor.
Section 43 was enacted by Laws of 1902, chapter 252. Prior to that the board of managers of this institution, as well as those of the other charitable