Section 451, subdivision 3, of article 17-A of the Correction Law (Cons. Laws, ch. 43, added L. 1935, ch. 111) permits the retention of prisoners in the Albion State Training School after the expiration of their terms upon the conditions and in accordance with the procedure set forth in section 440 of the same law. The apposite language of section 440 is as follows: "When the term of a prisoner confined in such institution * * * has expired, and, in the opinion of the superintendent thereof, such prisoner is a mental defective the superintendent shall apply to a judge of a court of record to cause an examination to be made of such person, by two qualified examiners, other than a physician connected with such institution, or by one such qualified examiner and a qualified psychologist. Such examiners, or such examiner and psychologist, shall be designated by the judge to whom application is made. Such examiners, or examiner and psychologist, if satisfied, after a personal examination, that such prisoner is a mental defective, shall make a certificate to that effect in the form and manner prescribed by this article. Such superintendent shall apply to a judge of a court of record for an order authorizing him to retain such prisoner at the institution, accompanying such application with such certificate of mental defect. Such judge, if satisfied that such prisoner is a mental defective, shall issue an order of retention, and such superintendent shall thereupon retain the prisoner at the institution until discharged as provided by law." *Page 191
The statute contains this further provision: "The costs necessarily incurred in determining the question of mental deficiency, including the fees of the examiners, or examiner and psychologist, shall be a charge upon the amount appropriated for the support and maintenance of such institution, and be paid in the same manner as are other expenses of the institution."
Pursuant to the statutory provision and preliminary to application to a judge for the retention of Agnes Naylor, a prisoner in the Albion State Training School whose term had expired, the superintendent of the school applied to the County Judge of Orleans county to cause an examination to be made. The County Judge granted an order appointing two qualified examiners to conduct the examination, and also appointing a "special guardian" of the prisoner. After examining the prisoner the examiners certified that in their opinion she was a mental defective. A petition for her retention with the certificate of the examiners annexed was then presented to the same judge. Thereupon the judge caused the prisoner to appear before him twice for examination. On the second appearance the special guardian by authorization of the court called a third qualified examiner as a witness on the prisoner's behalf. The County Judge then by order denied the application of the superintendent to retain the prisoner and in the same order fixed amounts as compensation to be paid the special guardian and the third examiner who had been called by the special guardian as a witness, and made the amounts so fixed as compensation a charge upon the appropriation for the support of the school.
Before issuing an order for the retention of a prisoner after his term has expired, the judge to whom the petition is addressed must be "satisfied that such prisoner is a mental defective." To assist the judge to reach his decision, the statute assures him the advice of two qualified examiners or one qualified examiner and one psychologist as the judge may determine. These experts are to be of the judge's own choice. No provision is made in the statute for further *Page 192 expert advice at the school's expense. The definiteness of the provision negatives any general power to impose further charges for experts upon the school. Statutory authorizations for expending public funds must be strictly construed. The allowance of compensation to the third examiner was unauthorized.
The statute contains no express authorization for the appointment of a special guardian. If power to appoint a special guardian or make provision for compensation for such an officer is authorized, it must be found elsewhere. The power vested in the Supreme Court by section 207 of the Civil Practice Act, and exercisable by a County Court under section 69 of the same act, to appoint a guardian ad litem or special guardian, may be invoked "for an infant or an incompetent." If the prisoner was competent she needed no special guardian; and if she was incompetent she had under the statute no right to freedom, the only right that a special guardian in such a case would be called upon to protect. A special guardian is not appointed for one seeking liberty through a habeas corpus proceeding or for a person defending himself against a criminal charge and pleading insanity as a defense. Even if we assume that a proceeding to determine competency is within the purview of the statutes just mentioned, another obstacle to its application exists in this instance. Such an appointment may be made for the protection of the rights and interests of the incompetent "except when it is otherwise expressly provided by law." (Civ. Prac. Act, § 207.) Section 440 of the Correction Law provides otherwise for the protection of the rights and interests of a prisoner who is thought to be an incompetent. We cannot say that the safeguards thus provided at the expense of the State are inadequate. No other pertinent statute has been called to our attention and we have found none. There was, therefore, neither power to appoint nor need for a special guardian in this proceeding.
The order of the Appellate Division should be reversed, without costs. *Page 193