433, Laws of 1909, there have been appropriated $3,070.48 for building a sewage disposal plant for the New York State Training School for Girls at Hudson. The lowest bid for the contract for this work is $4,200, which is $1,192.52 in excess of the aggregate of the appropriations made for this purpose. To meet this deficiency it is proposed to use the unexpended balance of $1,088.45 of an appropriation made by Chapter 466, Laws of 1908, amounting to $44,872.72 for two cottages at the Training School for Girls at Hudson; and also it is proposed to use an unexpended balance from an appropriation made by Chapter 461, Laws of 1909, amounting to $5,500 for a trunk conduit to connect the boiler house at the same institution. You request my opinion as to whether the unexpended balances of the appropriations for the two cottages and for the trunk conduit at this institution can lawfully be applied to make up this difference between the appropriation for the sewage disposal plant and the amount of the lowest bid. My answer to this question is in the affirmative. Section 49 of the State Charities Law, as amended by Chapter 149 of the Laws of 1909, provides as follows: "If an appropriation be made for the erection, alteration, repairs or improvement of buildings or plant at a state institution reporting to the fiscal supervisor, in an appropriation act specifying two or more objects for which the appropriation shall be applied, and any one of such objects shall have been accomplished for a less sum than the amount specified in the act, the unexpended balance shall be applicable to the completion of any other work specified in the act, if after due advertisement no bids shall have been received within the amount specifically appropriated therefor." The New York State Training School for Girls at Hudson is an institution reporting to the Fiscal Supervisor. Chapter 466, Laws of 1908, is an appropriation act for the erection or improvement of buildings or plant specifying two or more objects, viz.: for two cottages, $44,872.72, and for sewage disposal plant $870.48. Chapter 461, Laws of 1909, is also an appropriation act for the erection or improvement of buildings, or plant specifying two or more objects, viz.: for trunk conduit, $5,500, and for sewage disposal plant, $1,200. Upon the statement of the State Architect it appears that the object of building the two cottages has been accomplished for a less sum than the amounts appropriated, and the object of building the trunk conduit has also been accomplished for a less sum than the amount appropriated. As the appropriations for these two purposes were each specified in an act which also included an appropriation for the building of the sewage disposal, the unexpended balance from the appropriations for the cottages and for the trunk conduit come within the provisions of section 49, as above quoted, and are therefore applicable for use for the sewage disposal, for which, after due advertisement, no bids have been received within the amount specifically appropriated therefor. Yours respectfully, EDWARD R. O'MALLEY, USE OF UNEXPENDED BALANCES. (Section 65 of the Insanity Law and section 49 of the State Charities Law construed.) INQUIRY. To what extent and under what conditions may unexpended balances of specific appropriations be used under the above statutes for other purposes mentioned in the act making the appropriations? OPINION. Section 65 of the Insanity Law contains the following provision, which applies to State hospitals for the insane: "If an appropriation be made for the erection, alteration, repairs or improvements of buildings or plant in an appropriation act specifying two or more objects for which the appropriation is made and any one of such objects should have been accomplished for a sum less than the amount specified in the act, the unexpended balance shall be applicable to the completion of any other work specified in the act, provided that after due advertisement no bids shall have been received within the amount specifically appropriated therefor." This clause was incorporated into the law by chapter 325 of the Laws of 1907. Section 49 of the State Charities Law contains practically the same provision in the following language, and applies to the State institutions reporting to the Fiscal Supervisor: "If an appropriation be made for the erection, alteration, repairs or improvements of buildings or plant, at a state institution reporting to the fiscal supervisor in an appropriation act specifying two or more objects for which the appropriation shall be applied, and any one of such objects shall have been accomplished for a less sum than the amount specified in the act, the unexpended balance shall be applicable to the completion of any other work specified in the act, if, after due advertisements, no bids shall have been received within the amount specifically appropriated therefor." This portion of section 49 was enacted by chapter 457 of the Laws of 1905. It has been the custom of the Legislature to make several appropriations in the same act for each of the State hospitals and the State charitable institutions reporting to the Fiscal Supervisor. An example of these appropriations is found in chapter 530 of the Laws of 1912 relating to the Eastern New York Reformatory at Napanoch, the wording of the Appropriation Act being as follows: Evidently it was the intention of the Legislature in adopting these provisions of the Insanity Law and State Charities Law to make available, for the State institutions affected, the unexpended balance of an appropriation for a specific purpose, whenever there is a deficiency in an appropriation covered by the same act for some other specific purpose. The general fiscal provisions governing State expenditures are found in the State Finance Law. Section 36 of that act provides, "Money appropriated for a specific purpose shall not be used for any other purpose," and section 38 provides: "A contract or contracts made in pursuance of an appropriation by the State for a specific object shall be for the completion of the work contemplated by the appropriation, and in the aggregate shall not exceed the amount of such appropriation." Both of the above sections of the State Finance Law were enacted by the Legislature in 1899. Since the provisions of the Insanity Law and the State Charities Law, above quoted, were enacted since that time, they operate to except the appropriations described therein from the general provisions of the State Finance Law. These sections, however, containing as they do exceptions to the well-settled policy of the State in relation to the expenditures of money, should be strictly construed and the unexpended balance of one appropriation should be used for the other purposes mentioned in the Appropriation Act only upon a strict compliance with the provisions contained in these sections of the Insanity Law and the State Charities Law. Where the work for which one appropriation is made has been completed, and there is an unexpended balance, this balance may be used for the completion of some other construction work mentioned in the Appropriation Act, provided that after due advertisement no bids have been received for the completion of the latter work within the amount specifically appropriated therefor by the act of the Legislature. The unexpended portion of the amount appropriated for any such construction work can be used for extraordinary repairs and new equipment only where plans and specifications for such repairs have been made, due advertisement had, proposals received and no bids obtained for the completion of such extraordinary repairs or the furnishing of such new equipment within the amount appropriated therefor by the act. Such unexpended balances cannot be used for the purchase of equipment or for repairs which the institutions affected are permitted to make in amounts less than $1,000 without competitive bidding. Dated February 5, 1913. THOMAS CARMODY, TO WILLIAM SOHMER, State Comptroller, Albany, N. Y. Attorney-General. § 50. Visitations and reports by managers or trustees. The board of managers or trustees of each of the state institutions reporting to the fiscal supervisor in addition to their other duties now required by law, shall hold monthly meetings at the institution under its charge and, by a majority of its members, visit and inspect the institution for which it is appointed at least monthly, and shall make a written report to the governor, the state board of charities and the fiscal supervisor within ten days after each visitation, to be signed by each member making such visitation. Such reports shall include the minutes of the monthly meetings and shall state in detail the condition of the institution visited and of its inmates, and such other matters pertaining to the management and affairs thereof as in the opinion of the board should be brought to the attention of the governor, the state board of charities or the fiscal supervisor of state charities, and may contain recommendations as to needed improvements in the institution or its management. The state board of managers of reformatories shall meet monthly at some of the institutions under its management, and shall at least monthly visit and inspect each such institution either by a majority of said board or a committee of its members, and shall make a like report to the gov ernor, the state commission of prisons and the fiscal supervisor. Managers or trustees who fail to attend the meetings of their respective boards or fail to make such visitations for three successive months, shall be deemed to have vacated their membership in such boards of managers or trustees, whereupon the governor shall fill the vacancies so created as provided by law, unless the absence of such managers or trustees shall be excused by the governor. (As amended by chapter 149 of the Laws of 1909 and chapter 405 of the Laws of 1911.) The 51. Appointment and removal of managers or trustees. Each of the state institutions reporting to the fiscal supervisor shall be under the control and management of boards of seven managers to be appointed for each institution by the governor by and with the advice and consent of the senate. terms of office of said managers shall be seven years and they shall be so appointed that the terms of at least one of the members of each board shall expire on the first Tuesday of February of each year. All vacancies shall be filled by the governor and the person appointed to fill a vacancy in the board of managers of any institution shall hold office for the remainder of the term of the * See section 180 as amended by chapter 121, Laws of 1915, and section 181. person whom he succeeds. In the discretion of the governor persons of either sex may be appointed as managers of such institutions. Such managers shall serve without compensation but shall be entitled to their actual and necessary traveling expenses in attending meetings of the boards of which they are members. The governor shall have power to remove any member or members of a board of managers for cause after an opportunity to be heard. Managers and trustees now serving as members of boards which have more than seven members may be continued in office until the expiration of the term for which they were appointed but no new appointments shall be made to such boards until their membership is reduced to less than seven. Boards now consisting of less than seven members shall be enlarged by additional appointments to be made before the end of the fiscal year. All persons now serving as members of boards of managers or trustees of the state institutions reporting to the fiscal supervisor shall be eligible to reappointment as managers or trustees, at the discretion of the governor. (As amended by chapter 149 of the Laws of 1909.) Incorporation of repealed matter in Consolidated Laws does not have effect of re-enacting it. Sections 50 and 51 control when inconsistent with prior acts. STATE OF NEW YORK, Hon. HENRY R. HOWLAND, President Board of Managers, Thomas Indian School, 217 Sumner street, Buffalo, N. Y.: DEAR SIR.-On June 26th last I advised you in reply to your letter of June 25th that section 341 of the Consolidated State Charities Law was controlling with reference to the number of managers of the Thomas Indian School, and on July 1st I advised you in reply to your letter of June 29th that section 342 was controlling with reference to the inspection of that institution by the board of managers. My reason for this, as stated, was that sections 341 and 342 having special reference to this institution would, under a well settled rule of construction prevail over sections 50 and 51 of the same act, which laid down a general rule governing the number of managers of charitable institutions and their visitations and reports. I find, however, that the commission which drafted the Consolidated Laws erroneously included in the State Charities Law the provisions of sections 341 and 342. These had been repealed by chapter 433 of the Laws of 1908 and chapter 283 of the Laws of 1907, respectively, which acts provided uniform regulations for all charitable institutions. |