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institutions, had the general power to remove their superintendent. It existed equally in all such institutions, whether conferred in express terms or by implication with the power to appoint. It can hardly be said that the Legislature intended by section 43 to vest in the Governor the exclusive power of removal of the superintendent of one class of charitable institutions and only a supervisory or cumulative power of removal over another class in respect of such position. I am, therefore, of the opinion that the power of the Governor is a supervisory power which does not limit or interfere with the power of removal of the board of managers of your institution. The power existing, it may be exercised in the discretion of the board if the person occupying the position of superintendent does not come 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. Yours respectfully,
EDWARD R. O'MALLEY,
§ 83. Treasurer to give undertaking. The treasurer shall, before he receives any money, give an undertaking to the people of the state, with such sureties and in such amount as the board of managers shall require and to be approved by the comptroller, to the effect that he will faithfully perform his trust as such treasurer.
Rome State Custodial Asylum
Section 90. Asylum for feeble-minded persons and idiots. 91. Appointment of managers.
92. Powers and duties of managers.
93. Superintendent, qualifications, powers and duties. 94. Commitments to asylum; maintenance.
95. Detention and discharge of inmates; procedure.
§ 90. Asylum for feeble-minded persons and idiots. The asylum established at Rome for the custody, maintenance, training and treatment of the custodial class of feeble-minded persons and idiots is hereby continued and shall be known as the Rome state custodial asylum.
§ 91. Appointment of managers. Such asylum shall be under the control and management of a board of seven managers, appointed in accordance with the provisions of section fifty-one of this chapter. They shall appoint one of their number as
president, another as vice-president and another as secretary. (As amended by chapter 449 of the Laws of 1910.)
§ 92. Powers and duties of managers. The board of managers shall,
1. Have the general direction and control of all the property and concerns of the asylum, take charge of its general interests and see that its design is carried into effect, according to law and its by-laws, rules and regulations.
2. Establish by-laws, rules and regulations, subject to the approval of the state board of charities, for the internal government, discipline and management of the asylum.
Parole of inmates not contemplated by statute or authorized by State Board of Charities. Fiscal Supervisor may not approve expense items therefor.
STATE OF NEW YORK,
Hon. DENNIS MCCARTHY, Fiscal Supervisor, Albany, N. Y.:
DEAR SIR. - I beg to acknowledge the receipt of your request for an opinion on whether the inmates of the Rome State Custodial Asylum can lawfully be placed on parole and whether you can approve the payment of items of expense incurred by the institution in placing inmates on parole.
Section 92 of the State Charities Law defines the powers and duties of the board of managers of the institution in question. Subdivision 2 provides that they may establish by-laws, rules and regulations, subject to the approval of the State Board of Charities, for the internal government, discipline and management of the asylum.
Upon inquiry of the secretary of the State Board of Charities, I am informed that no rule or regulation allowing inmates of this institution to be paroled has ever been approved by that board, and further that such a rule would be entirely contrary to the principles of government of this and similar institutions, and consequently would be disapproved without doubt by the State Board of Charities. In the absence of any other law, so far as I can ascertain, authorizing the parole of inmates of the Rome Custodial Asylum, I am of the opinion that inmates cannot be paroled and, therefore, respectfully advise you that it is not proper to approve expenditures incurred in connection with paroling them.
EDWARD R. O'MALLEY,
3. Maintain an effective inspection of the asylum, for which purpose a majority of the managers shall visit the asylum at least monthly and at such other times as may be prescribed in the
by-laws. The superintendent or other officer in charge shall admit such managers or manager into every part of the asylum and its buildings and exhibit to them on demand all the books, accounts and writings belonging to the asylum and pertaining to its interests, and furnish copies, abstracts and reports whenever required by them.
4. Annually on or before the fifteenth day of January report to the legislature for the preceding fiscal year the affairs and condition of the asylum with full and detailed estimates of the next appropriations required for maintenance and ordinary uses and repairs, and of special appropriations, if any, needed for extraordinary repairs, renewals, extensions, improvements, betterments or other necessary objects.
5. If lands are required for the use of the asylum, acquire the same by purchase, gift or condemnation.
(As amended by chapter 449 of the Laws of 1910.)
§ 93. Superintendent, qualifications, powers and duties. The superintendent shall be appointed by the board of managers in accordance with the laws of this state after a civil service examination which shall be held upon the lines of qualification, experience and training herein provided. He shall be a resident of this state, a well educated physician and graduate of a legally incorporated medical college, and shall have had a suitable experience and training of not less than three years in the care and treatment of the mentally defective classes, epileptic or insane. He shall be the chief executive officer of the asylum, and shall manage the institution in conformity to rules and regu lations adopted by the board of managers. He shall appoint the assistant physicians, steward, clerk, a bookkeeper, matron and all subordinate employees, and he shall discharge them when, in his judgment, it may be necessary to do so for the good of the insti
MINOR OPERATIONS MAY BE PERFORMED ON INMATES CIRCUMCISION SURGICAL OPERATION ON INMATES.- The Superintendent of the Rome State Custodial Asylum is authorized to perform an operation for circumcision upon an inmate of the asylum, provided the operation is not inherently dangerous and clearly serves to allay or to effect a cure of the disease or disorder with which he is afflicted or materially to promote his health.
Is the superintendent of the Rome State Custodial Asylum authorized to perform an operation for circumcision upon feeble-minded persons and idiots committed to said asylum, as provided by article 7 of the State Charities Law, in cases where the consent of the parent or guardian has not been obtained, including cases in which the parent or guardian forbids the performance of the operation?
I note that you state in substance that, by this operation. as a general rule, the health of inmates is considerably promoted and improved, the tendency to indulge in certain filthy habits relieved, and their chances of ultimate recovery greatly enhanced; and for the purpose of this opinion I assume that the operation is not inherently dangerous, for otherwise there would seem to be no warrant for such an interference with the personal liberty of the inmate.
As a rule, of course, an express consent is necessary to warrant such an interference with the person. It would seem, however, that the consent of the guardian or legal custodian of the person of an infant or of an adult of weak mind would be sufficient for the purpose.
While the precise question here presented does not appear to have been as yet squarely passed upon by the courts, there is authority for the proposition that a consent may be implied in cases where there is a superior authority which can legally and rightfully dispose of the person of the patient, such as the relation existing between the keeper of a prison and an inmate.
Pratt v. Davis (Ill. App.), 37 Chicago Legal News, 213.
Tiedeman on State and Federal Control of Persons and Property,
Attorney-General's Report (1899), p. 202.
Although the statute under which commitments to this institution are made does not in express terms so provide, the class of persons referred to are, as I understand it, committed for the purpose, among other things, of receiving medical care and treatment to the end that the progress of the affliction may be allayed, or if possible a cure effected. In other words, the State undertakes their custody, maintenance, training and treatment; and its officers and agents are given the custody of the persons of the inmates for the purpose of securing these objects. The inmates become, as it were, the wards of the State (Sporza v. German Savings Bank, 192 N. Y., 8). Such being the legal relations subsisting between the parties, it would seem to follow that the State, acting through its duly authorized officers in this case the superintendent of the asylum-is not only justified, but in duty bound, to administer such medical or surgical treatment, not inherently dangerous, as is appropriate to the nature of the case.
Accordingly I am of the opinion that if it can in a given case be established, not as a matter of speculation, but as a scientific fact, that a circumcision operation serves to allay or effect a cure of the disease or disorder with which the inmate is afflicted or materially to promote his health, and is
not inherently dangerous, the superintendent possesses the power to perform the operation, though the natural guardian forbids it.
If, however, his right to perform the operation in a given case is challenged in the courts he must, in order to justify his acts, establish the prerequisite facts to which I have referred.
Dated December 4, 1911.
TO DR. CHARLES BERNSTEIN, Superintendent, Rome State Custodial Asylum, Rome, N. Y.
§ 94. Commitments to asylum; maintenance. The superintendents of the poor of the various counties of the state may commit to such asylum, if vacancies exist therein, such feebleminded persons and idiots residing in their respective counties, or who are inmates of county almshouses, according to the by-laws and regulations of the asylum. All commitments shall be in the form prescribed by the board of managers. Insane idiots or epileptics shall not be committed to such asylum. The maintenance of the institution and inmates thereof shall be a charge upon the state, except that a feeble-minded person or idiot who is possessed of sufficient property to pay for maintenance in the asylum, or the father, mother, committee or guardian who is responsible for the care of such feeble-minded person and is financially able in the judgment of the board of managers to reimburse the state in addition to a proper financial ability to support himself and remaining family, shall pay the treasurer of the asylum yearly an amount equal to the yearly per capita cost of such maintenance as determined by the board of managers yearly, and upon the refusal of such parent, committee or guardian to make payment as herein provided the superintendent of such asylum may bring action in the name of the asylum to recover for such reimbursement to the state for such maintenance. Where it becomes necessary to have a committee of a feeble-minded incompetent person appointed to legally settle an estate in which such incompetent feeble-minded person has a legal or financial interest, the superintendent of the asylum is hereby empowered to make application to a court of competent jurisdiction for the appointment of such committee. (As amended by chapter 165 of the Laws of 1914.)