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writ of mandamus, v. John W. Keller, as commissioner of public charities in the city of New York, respondent, 172 N. Y. 50.

New YORK JUVENILE ASYLUM - CHARTER PROVISION REQUIRING PAYMENT BY THE CITY AND COUNTY OF NEW YORK FOR THE SUPPORT OF INMATES Not COMMITTED TO IT IN ACCORDANCE WITH RULES OF STATE BOARD OF CHARITIES, SUPERSEDED BY THE CONSTITUTION. The fact that the New York Juvenile Asylum, a private charitable institution, was authorized by its charter (L. 1851, ch. 332) to take under its care the management of such children as should by consent, in writing, of their parents or guardians, be voluntarily surrendered and intrusted to it, and by section 28 of chapter 245 of the Laws of 1866 might require the county of New York to pay annually a specified sum for the support of children so committed to it, which section was incorporated into the charter of Greater New York (L. 1897, ch. 378, $ 230) and has not in terms been repealed, amended or modified, does not authorize the city and county of New York to pay for the support and maintenance of any inmate not received and retained therein pursuant to the rules of the State Board of Charities, since such payment is prohibited, not by the rules affecting the repeal or amendment of the statute conferring the right thereto, but by the Constitution itself, which superseded the statute and operated presently from the time the rules were established. Id.

Court of Appeals, October, 1902, Matter of New York Juvenile Asylum, 69 App. Div. 615, affirmed.

A CONVEYANCE OF REAL PROPERTY BY A CITY TO A CHARITABLE INSTITUTION, WHOLLY OR PARTIALLY UNDER PRIVATE CONTROL, FOR A NOMINAL OR No CONSIDERATION HELD UNCONSTITUTIONAL AND VOID. Such a gift to a corporation whose purpose, as prescribed in its charter, is medical and surgical aid to persons of a certain religious denomination and other objects appertaining to hospitals and dispensaries, contravenes the provision of section 10, article VIII of the State Constitution, prohibiting a city from giving any money or property to or in aid of any individual, association or corporation, and is not saved by the proviso that such prohibition shall not prevent a city from making such provision for the aid and support of its poor as may be authorized by law, because the appropriation of the proceeds of the grant is not permanently secured for a public purpose.

Such a gift offends against section 14 of article VIII which confines gifts by a city to a charitable institution wholly or partly under private control to payments for inmates received and retained pursuant to rules estab. lished by the State Board of Charities, and does not permit a payment for transfer of property by way of endowment.

The language of section 14 of the Constitution clearly contemplates pay. ment of money for these purposes, to be applied subject to the rules and regulations established by the Board of Charities. This is now the authority for the application of property and money in aid of private institutions that have voluntarily assumed the public obligation, and the provision is that no “payments shall be made for any inmate of such institutions who is not received and retained therein pursuant to rules established by the State Board of Charities;” thus clearly contemplating that the basis of the appropriation shall have relation to the number of inmates provided for in the particular institutions, the rate of payment being placed upon a per capita basis. Supreme Court, March, 1904, The Mount Sinai Hospital, Respondent, v. David H. Hyman, Appellant, 92 App. Div. 270. The State Board of Charities has the power, subject to legislative control,

make rules regulating the reception and retention of inmates in charitable institutions.

STATE OF NEW YORK,
ATTORNEY-GENERAL'S OFFICE,

ALBANY, January 25, 1895. To the Honorable the State Board of Charities:

GENTLEMEN.— Your communication of January 23d, containing the request that I examine certain rules proposed for adoption by your body, regulating the reception and retention of inmates of certain charitable and kindred institutions of this State, with the view of obtaining my ion as to whether or not such proposed rules are within the scope of the authority conferred upon your board by section 14, of article 8 of the Revised Constitution, is at hand.

In reply, permit me to state that I have examined the proposed rules with some care, and am of the opinion that they are (with certain modifications, which will be noticed in the amendments to said rules submitted herewith) within the constitutional powers of the State Board of Charities.

In reaching this conclusion, the first question which presented itself for determination, was as to whether section 14, of article 8, of the Revised Constitution was self-executing in that it conferred the power without legislative enactment, or whether such legislative action was necessary to give effect to the section. The answer to that question was readily sug. gested by the language of the section.

I quote: * Payments by counties, cities, towns and villages to charitable, eleemosynary, correctional and reformatory institutions, wholly or partly under private control, for care, support and maintenance, may be authorized, but shall not be required by the Legislature.

No such pay. ments shall be made for any inmate of such institution who is not received and retained therein pursuant to rules established by the State Board of Charities. Such rules shall be subject to the control of the

Legislature, by General Laws.” Here the absolute power is conferred upon your board to make rules; which power, until controlled by legislative action, is unlimited except as confined in scope by the language of the section itself. That limitation, of course, is to the reception and retention of inmates of the designated institutions. To hold, therefore, that legislative action is necessary to permit your board to formulate and enforce such rules, would be in effect to say that the Legislature by inaction could prevent the exercise by your body of a constitutional power, which can only be controlled by legislative action. In my judgment the effect of such interpretation would be an absurdity, to avoid which we must conclude that the power to make rules under the constitutional provision referred to is inherent in the State Board of Charities.

The next question which presented itself was: What is the scope to which the rules can extend? That is also easily determinable from the language of the section.

“ No such payment shall be made for any inmate of such institution who is not received and retained therein, pursuant to rules established

by the State Board of Charities." The force to be given to the section, in my judgment, is simply this: Your board is to make rules in accordance with which inmates of such institutions are to be admitted and retained. Those rules being made, it will be unlawful for any disbursing officer of government to pay for the care and maintenance of inmates who are not admitted or retained in such institutions in accordance with such rules. The section does not mean, however, that you may prescribe conditions which must be met before payment can be made for the care and support of the inmates, or in other words, your rules are to govern the action of the institutions, and are not to be directed towards disbursing officers. Nor does it mean that your body can insist that the bills of such institutions shall be submitted to it for approval or audit, as the rules submitted seem to assume. Those powers, however, may be conferred, if deemed advisable, by legislative enactment under a preceding part of said section 14. But until such event no rules, in my judgment, should be adopted which appear to assume such power.

Very truly yours,
T. E. HANCOCK,

Attorney-General.

Jurisdiction of State Board of Charities over institutions which are in receipt of public money.

STATE OF NEW YORK,
ATTORNEY-GENERAL'S OFFICE,

ALBANY, September 14, 1904. To the Honorable the State Board of Charities:

GENTLEMEN.— Replying to your communication in which you state that you are desirous of obtaining an opinion in regard to the question of jurisdiction over certain institutions in the State which are in receipt of public money, but which are apparently private business enterprises rather than charitable institutions,” I have the honor to submit the following: Section 11 of article VIII of the Constitution reads in part as follows:

“ The Legislature shall provide for a State Board of Charities, which shall visit and inspect all institutions, whether state, county, municipal, incorporated or not incorporated, which are of a charitable, eleemosynary,

correctional or reformatory character." Section 14 of article VIII of the Constitution reads in part as follows:

* Payments by counties, towns and villages to charitable, eleemosy. nary, correctional and reformatory institutions, wholly or partly under private control, for care, support and maintenance, may be authorized, but shall not be required by the Legislature. No such payments shall be made for any inmate of such institutions who is not received and retained therein pursuant to rules established by the State Board of Charities. Such rules shall be subject to the control of the Legislature by general laws."

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The authority conferred upon the Legislature by the section of the Con. stitution last above quoted, was exercised by the enactment of chapter 754 of the Laws of 1895, which, in substance, authorized the appropriation and payment by administrative boards of officers of counties, towns and municipalities, in their discretion, from moneys raised by taxation, to chari. table, eloemosynary, correctional or reformatory institutions, wholly or partry under private control, for the care, support and maintenance of in. mates, sucn payments to be made, however, only for such inmates as are received and retained therein pursuant to rules established by the State Board of Charities."

Section 9 of the State Charities Law (ch. 546, Laws of 1896), reads in part as follows:

“ Thu State Board of Charities shall visit, inspect and maintain a general supervision of all institutions, societies or associations which are of a charitable, eleemosynary, correctional or reformatory character, whether State or municipal, incorporated or not incorporated, which are

made subject to its supervision by the Constitution or by law." Neither the Constitution nor the statute attempts to define a charitable or eleemosynary institution. The question of what constitutes a charitable institution, however, has been before the Court of Appeals in the case of the People on the relation of the State Board of Charities vs. The N. Y. Society for the Prevention of Cruelty to Children, and has received exhaustive treatment in two opinions in that case, reported in 161 N. Y., 233, and 162 N. Y., page 429.

In that case it was held that a charitable institution, as that term is used in the Constitution, must be one that in some form or to some extent receives public money for the support and maintenance of indigent persons.

The intent of the framers of the Constitution with reference to this provision was stated to be easily ascertainable from the closing address of the chairman of the Constitutional convention, Mr. Choate, in which he used the following language:

“Wherever any public money is devoted to a private charity for the public service it shall continue under public control, and the vigilant eye and the strong arm of the people shall be able to follow every dollar

of the public money into every institution to which it is so devoted." It was held in the case of the People ex rel. N. Y. Institution for the Blind vs. Fitch, 154 N. Y., p. 14, that in order to bring an institution within the provisions of the Constitution and statutes, it is not necessary that the institution shall be wholly charitable. “It need only be an institu tion which is wholly or partly charitable in its character and purpose."

Of the four institutions mentioned in your letter, two of them appear to be conducted by private individuals and the other two by private corporations organized under the provisions of the business corporation law. All four of the institutions are in a measure private business enterprises conducted for the personal gain of the owners.

I am of the opinion that whenever a public agent employs a private individual or corporation to “care for, support or maintain ” one or more persons at public expense, the service must be rendered "pursuant to rules

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established by the State Board of Charities” not inconsistent with legislative regulation, and that the State Board has all the power of visitation and inspection necessary to enable it to know whether its rules are complied with. When such private individual or corporation agrees to render the public service, the law imposes an obligation upon it or him to submit to this scrutiny by the State Board of Charities. The State Board has the right to know that the provision made for the care of those who are a public charge is suitable and proper, and that the obligations assumed are fulfilled. This is the limit of its powers and duties concerning these persons or institutions.

It has nothing to do with the general business or affairs of an individual or corporation because he or it may incidentally render a public service.

Very respectfully yours,
JOHN CUNNEEN,

Attorney-General.

are

Lump sum appropriations to private charitable institutions for the care and treatment of public dependents, unconstitutional.

STATE OF NEW YORK,
ATTORNEY-GENERAL'S OFFICE,

ALBANY, May 31, 1907. Hon. ROBEBT W. Hill, Secretary, State Board of Charities, Albany, N. Y.:

DEAR SIR.— In reply to your favor of the 15th ultimo, requesting an opinion on the legality of the action of the board of supervisors of Clinton county, in entering into an agreement for the care and surgical treatment at the Plattsburgh City Hospital of all such persons in Clinton county as now, or shall become hereafter dependent and a charge upon the public, and by resolution appropriating the sum of five thousand dollars to said hospital, payment of which is contingent upon the said hospital binding itself to care for the said patients and contingent upon such action of the said board of supervisors being approved by the State Board of Charities.

The following provisions of the State Constitution bear directly upon this subject:

Article VIII, Section 10. “No county, city, town or village shall hereafter give any money or property or loan its money or credit to or in aid of any individual, association or corporation, or become directly or indirectly the owner of stock in, or bonds of, any association or corporation; nor shall any such county, city, town or village be allowed to incur any indebtedness except for county, city, town or village purposes. This section shall not prevent such county, city, town or village from making such provision for the aid or support of its poor as may be authorized by law.”

Article VIII, Section 14. Nothing in the Constitution contained shall prevent the Legislature from making such provision for the education and support of the blind, the deaf and dumb, and juvenile delinquents, as to it may seem proper; or prevent any county, city, town or village from providing for the

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