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5. Purchase all necessary furniture, implements, food and materials for the maintenance of the poor in such houses, and for their employment in labor, and vise, sell and dispose of the proceeds of such labor as they shall deem expedient.

Superintendents of the poor and other municipal officers must purchase prison-made goods.-- Prison Law, section 182. Penal Law, sections 29, 1866 and 1937. General Municipal Law, section 51. Convict-made goods. Penal. ties for purchase made without certificate.

It is the duty of officers of political divisions of the State to make requisition on the State Commission of Prisons for such articles used in the municipalities as are manufactured in the State prisons. If such articles are bought elsewhere, without the certificate of the State Commission of Prisons showing inability to furnish the goods required, the officers making such purchase or auditing claims therefor are criminally and civilly liable for their acts.

INQUIRY. Certain sheriffs and superintendents of the poor have purchased articles of the kind manufactured in the State prisons through the open market without first having received a certificate from the State Commission of Prisons showing inability by the Commission to furnish the goods required. Are the officers purchasing such goods or who audit the bills therefor liable in any way for their acts!

OPINION. The general provisions relating to the sale of convict-made goods to municipalities are found in sections 182, 183 and 184 of the Prison Law. These sections, so far as pertinent to this inquiry, provide that no article manufactured in the prisons shall be purchased from any other source for the State, the public institutions of the State or political subdivisions thereof unless the State Commission of Prisons shall certify that the articles cannot be furnished and no claim therefor shall be audited or paid without such certificate. Estimates of the articles required are to be furnished to the Commission and the prices are to be fixed by a board of classification. In the statutes referred to no penalty for failure to comply with the regulations made is provided. There is the simple prohibition that no goods shall be purchased or a claim therefor audited or paid without a certificate.

In my opinion, however, there are penalties for disregard of this mandatory statute. One is found in section 29 of the Penal Law which fixes a criminal liability for acts of the nature referred to. This statute provides :

Where the performance of any act is prohibited by a statute and no penalty for the violation of such statute is imposed in any statute,

the doing of such act is a misdemeanor.” Section 1937 of the Penal Law supplements this and provides:

“A person convicted of a crime declared to be a misdemeanor for which no other punishment is especially prescribed by this chapter, or by any other statutory provision in force at the time of the conviction and sentence, is punishable by imprisonment in a penitentiary or county jail for not more than one year or by a fine of not more than five hundred dollars, or by both."

VOL. 3-12

Offenses very similar to those referred to in this inquiry have been declared within the provisions of section 29 of the Penal Law,

I do not doubt but that a further criminal liability is created by section 1866 of the Penal Law where it is held that a public officer, a deputy or clerk of any such officer, receiving money on behalf of any city, county, village or town who wilfully disobeys any provision of law regulating his official conduct, is guilty of a misdemeanor punishable by a fine not exceeding one thousand dollars, or punishment not exceeding two years, or both.

Note should also be made of section 36 of the Public Officers Law providing for the removal of any town or village officer except the justice of the peace, by the Supreme Court for misconduct, malfeasance, or malversation in office.

A civil liability for the acts complained of is created by section 51 of the General Municipal Law providing for a taxpayer's action. It is there provided :

“All officers, agents, commissioners and other persons acting or who havo acted, for and on behalf of any county, town, village, or municipal corporation in this State, and each and every one of them, may be prosecuted, and an action may be maintained against them to prevent any illegal official act on the part of any such officers, agents, commissioners or other persons, or to prevent waste or injury to, or to restore and make good, any property, funds or estate of such county, town, village or municipal corporation by any person or corporation whose assessment, or by any number of persons or corporations, jointly, the sum of whose assessments shall amount to one thousand dollars, and who

shall be liable to pay taxes on such assessments I think that the violations of the statutes such as you may submit are well within this section, and that actions to restrain the doing of further illegal acts of this nature, or for the recovery of moneys illegally paid out, might be maintained by a taxpayer qualified under its provisions. Such right of action exists against the officer responsible and not against the municipality.

Filkins v. The Mayor, 9 Misc. 610.
Dated May 25, 1911.

Respectfully submitted,

THOMAS CARMODY, To Hon. GEORGE MCLOUGHLIN,

Attorney-General. Secretary, State Commission of Prisons, Albany, N. Y.

6. Prescribe the rate of allowance to be made for bringing poor persons to the county alms-house, subject to such alterations as the board of supervisors may by general resolution make.

7. Authorize the keepers of such houses to certify the amount due for bringing such poor persons; which amount shall be paid by the county treasurer on the production of such certificate, countersigned and allowed by the county superintendents of the poor.

8. Summarily decide any dispute that shall arise concerning the settlement of any poor person, upon a hearing of the parties, and for that purpose may issue subpænas to compel the attendance of witnesses, with the like powers to enforce such process, as is given to a justice of the peace in an action pending before him; their decisions shall be filed in the office of the county clerk within thirty days after they are made, and shall be conclusive and final upon all parties interested, unless an appeal therefrom shall be taken, as provided in this chapter.

9. Direct the commencement of suits by any overseer of the poor who shall be entitled to prosecute for any penalties, or upon any recognizance, bonds, or securities taken for the indemnity of any town or of the county; and in case of the neglect of any such overseer, to commence and conduct such suits, without the authority of such overseer, in the name of such superintendents.

10. Draw on the county treasurer for all necessary expenses incurred in the discharge of their duties, which draft shall be paid by such treasurer out of the moneys placed in his hands for the support of the poor. .

11. Audit and settle all accounts of overseers of the poor, justices of the peace, and all other persons, for services relating to the support, relief or transportation of the county poor; and draw on the county treasurer for the amount of the accounts which they shall so audit and settle.

12. Furnish necessary relief to such of the county poor as may require only temporary assistance, or are so disabled that they can not be safely removed to the county alms-house, or to the county poor who can be properly provided for elsewhere than at the county alms-house at an expense not exceeding that of their support at such alms-house.

13. Render to the board of supervisors of their county, at their annual meeting, a verified account of all moneys received and expended by them, or under their direction, and of all their proceedings in such manner and form as may be required by the board.

14. Pay over to the county treasurer on the first day of each month all moneys received by him from any source in his official capacity, or otherwise received by him and helonging to the county, since the date of the preceding payment, and make payments which he is authorized to make under this chapter only by orders drawn on the county treasurer, payable to the person entitled thereto and showing upon the face thereof the purpose for which the order is given. (As amended by chapter 75 of the Laws of 1912.)

15. Administer oaths and take affidavits in all matters pertaining to their office, and elicit, by examination under oath, statements of facts from applicants for relief.

Expenditures by the superintendent of the poor in the administration of his department are subject to the following limitations: The board of supervisors, at its annual meeting, may fix the maximum sum which may be expended by the superintendent, at his discretion, during the next ensuing year, and may provide that expenditures in excess of that sum shall be made only with the written approval of the chairman of the board of supervisors, or of a committee of the board, composed of not exceeding three members. If such limitation is fixed and such provision made, the county treasurer shall not pay any draft or order of the euperintendent in excess of the sum so fixed by the board, unless it is accompanied with the written approval of such chairman or committee.

The board of supervisors of a county has no power to direct the county treasurer not to pay, out of the poor funds, any draft drawn by the superintendents of the poor to their own order, or to the order of either of them, nor to direct him not to pay any draft unless the object for which the money is to be paid be specified therein. Supreme Court, December, 1878, People ex rel. Severn v. Demarest, 16 Hun, 123.

As to whether the statute (chap. 26, Laws of 1832) authorizing superintendents of the poor to “audit and settle all accounts

for serv. ices relating to the support, relief or transportation of county paupers confers upon those officers power to audit claims under contracts made with them, quaere.

The claim of an attorney for services rendered by him on the employment of superintendents of the poor in bastardy proceedings is not one “ relating to the support, relief or transportation ” of paupers within the meaning of that statute, and no power is conferred upon the superintendents to audit such a claim.

Said officers have power to employ an attorney to conduct such proceedings; they are responsible to the attorney for his services and he may enforce his claim against them by action.

It seems that every expense they incur by such employment is a county charge, subject to the audit of the board of supervisors.

It seems also that where bastardy proceedings are successful and indemnity secured, the attorney's fees with other expenses incurred may be charged upon the putative father (1 R. S. 644, $$ 13, 14). Court of Appeals, January, 1885, Neary v. Robinson, 98 N. Y. 81; Neary v. Robinson (Supreme Court, May, 1882, 27 Hun, 145), reversed.

It was more than intimated in Hayes v. Symonds (9 Barb. 260), that purchases of material and employment of labor by the superintendents, for which they were authorized to contract, were not the class of accounts to which the statute cited had reference. It would seem to be the more reason. able interpretation that their auditing power does not extend to their own contracts, and so make them sit as judges upon questions relating to their own conduct and their own corporate liability. Court of Appeals, January, 1885, Neary v. Robinson, 98 N. Y. 84.

Superintendents of the poor are not bound to audit the accounts of physicians and others for services rendered to county paupers by request of the overseers of the poor of the several towns; and this though the services were rendered in pursuance of orders for temporary relief. It is the duty of the overseers to adjust such accounts and charge them in their bills against the county. The employment of a physician by the superintendents of th poor of a county does not supersede the right of the overseers of the several towns to employ other physicians to attend county paupers entitled to temporary relief. Supreme Court, February, 1843, ex parte Green & Brown, 4 Hill, 558.

The provisions of subdivision il have no reference to services performed by the servants and laborers who are employed at the county poorhouse. Supreme Court, July, 1850, Hayes v. Symonds, 9 Barb. 260.

Superintendents of the poor have capacity to contract a liability for supplies furnished for the county poorhouse; which liability may be enforced by suit. Id.

But where it appears that the credit for supplies thus furnished was given to a fund, in the county treasury, raised by virtue of the fiftieth section of the act for the relief of indigent persons called the poor house fund, instead of to the superintendents, and on the supposition that the goods would be paid for by a draft on the treasurer, no action will lie against the superintendents until an application has been made to them for an order on the fund, and they have refused to give it. Id.

The office of superintendent of the poor, though invested with corporate powers, is, notwithstanding, a mere agency of the county, and the relation between the county and its superintendent is that of principal and agent. Court of Appeals, September, 1867, People v. Bennett, 37 N. Y. 117.

Where a person sells to superintendents of the poor, provisions for the poorhouse, upon an agreement that it is to be a cash sale, or if an order shall be given that it shall answer as cash, whereupon the superintendents give him an order upon the treasurer of the county, for the amount, and upon presentment of such order to the treasurer payment is refused, for want of funds, the vendor is remitted to his original right of action against the superintendents and may recover of them the value of the supplies.

In such a case the county is liable on the contract made by its authorized agents in the business specially committed to them by the statute. Supreme Court, May, 1851, Paddock v. Symonds, 11 Barb. 117.

The acts of a majority of the superintendents is binding upon the whole board. Court of Appeals, February, 1874, Johnson v. Dodd, 56 N. Y. 76.

The statutes relating to the support of the poor at county poorhouses furnish no authority for a discrimination between county and town poor, in respect to the application of the income of the poorhouse farm. On the

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