section 928 of the Education Law, placed in the New York Institution for the Instruction of the Deaf and Dumb to be educated and supported at the expense of the county of Herkimer until he became twelve years of age. Later, he was transferred to the Central New York Institution for Deaf Mutes under said section 928, as amended in 1910 (now section 978 of said law). Upon the hearing of a claim of said county against decedent's estate for moneys expended for the maintenance and education of said child up to the time of decedent's death it appeared that to the bill of each of said institutions against the county of Herkimer there was attached a certificate of the State Board of Charities that the institution has complied with the rules of the board for the reception and retention of inmates." Held, that the meaning of each certificate was that each of said institutions had complied with all the rules which said board intended to be in force during the time named in each certificate and was a repeal or waiver of the enforcement of a rule of the State Board of Charities which provides that "No child under the age of sixteen years shall be retained in any such institution as a public charge unless accepted in writing as such by the officer charged with the support and relief of the poor of the county * * * * upon which such child is sought to be made a public charge," and the county became liable for the payment of the bills, though there was no written acceptance by the superintendent of the poor of Herkimer county of the retention of said child in either of said institutions, and that the claim of the county for reimbursement from decedent's estate should be disallowed. Surrogate's Court, Herkimer County, February, 1915, Matter of the Estate of Edward Ten Eyck Lansing. PUBLIC PAYMENTS TO CHARITABLE INSTITUTIONS. The Legislature can not now authorize a locality to pay, nor can a locality in any case pay its money to a charitable institution, wholly or partly under private control, for the care, support and maintenance of inmates who are not received and retained pursuant to the rules established by the State Board of Charities (Const. 1894, art. 8, § 14). Id. PAYMENT DEPENDENT UPON OBSERVANCE OF RULES OF BOARD OF CHARITIES. The New York Institution for the Blind being, to an extent, a charitable institution and, so far as it is charitable, subject to the visitation and rules of the State Board of Charities, no payment can be properly made to it from the moneys of the city and county of New York for the maintenance or support, including clothing, of any indigent inmate not received and retained by it pursuant to the rules of that board. Id. Court of Appeals, October, 1897, People ex rel. Inst. for the Blind v. Fitch. 12 App. Div. 581, reversed. CHARITABLE INSTITUTIONS PAYMENTS OF PUBLIC MONEYS TO INSTITUTIONS WHOLLY OF PARTLY UNDER PRIVATE CONTROL RULES OF THE STATE BOARD OF CHARITIES. A municipal corporation is prohibited by the Constitution (art. 8, § 14) and the statutes (L. 1895, ch. 754; L. 1896, ch. 546, § 9, subd. 8) from paying public moneys to a charitable institution wholly or partly under private control, for the care, support and maintenance of inmates who are not received and retained therein pursuant to the rules established by the State Board of Charities for the purpose of determining whether such inmates are properly a public charge. Court of Appeals, October, 1902, In re Application of New York Juvenile Asylum, appellant, for a 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 payment 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, to make rules regulating the reception and retention of inmates in charitable institutions. STATE OF NEW YORK, ATTORNEY-GENERAL'S OFFICE, 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 opinion 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 suggested 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 payments 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 Legisla ture 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, 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, 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 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." The authority conferred upon the Legislature by the section of the Constitution 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 charitable, eleemosynary, correctional or reformatory institutions, wholly or partry under private control, for the care, support and maintenance of inmates, such 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: The 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 |