ings. A fund shall be created for that purpose and charged against the maintenance account of all the institutions on a prorata basis. Such committee upon the call of the fiscal supervisor, upon notice of not less than forty-eight hours, shall meet for the purpose of considering and determining the advisability of purchasing supplies in quantities for future delivery. Such committee shall consider proposals and, subject to the approval of the fiscal supervisor, make awards under joint contracts for the purchase of staple articles of supplies for any or all of the state institutions reporting to the fiscal supervisor, and shall appoint a committee of two to execute joint contracts in accordance with such awards, subject to the approval of the fiscal supervisor. These provisions are however subject to the powers now possessed by or hereafter conferred upon the fiscal supervisor of state charities.

§ 2. All acts or parts of acts inconsistent with this act are hereby repealed.

(As amended by chapter 149 of the Laws of 1909, chapter 305 of the Laws of 1911, and chapter 662 of the Laws of 1913.) Voucher of a temporary employee in position of overseer, for materials fur aished, may be approved by the Fiscal Supervisor, such position not coming under designation of a public officer.

STATE OF NEW YORK,

ATTORNEY-GENERAL'S OFFICE,
ALBANY, December 21, 1909.

Hon. DENNIS MCCARTHY, Fiscal Supervisor, Albany, N. Y.:

DEAR SIR.-1 am in receipt of your letter of the 17th inst., in which you state that a voucher of the New York State Hospital for Incipient Pulmon ary Tuberculosis at Raybrook, for materials furnished, in favor of William Anderson, Jr., a temporary employee of the institution, holding the position of overseer at a salary of $6 per day, has been submitted for your approval. and you ask my opinion whether the State Charities Law will permit the approval of this voucher.

Section 48 of the State Charities Law, as amended by chapter 149 of the Laws of 1909, is the statute regulating purchases for the use of the State institutions reporting to the Fiscal Supervisor. The only restriction, in so far as it relates to the authority to purchase from persons connected with the institution, is the following:

"The Fiscal Supervisor, a member or officer of the State Board of Charities, or manager or officer of any such institution, shall not be interested, directly or indirectly, in the furnishing of materials, labor or supplies for the use of any such institutions, nor shall any manager or trustee act as attorney or counsel for the board of managers or trus tees thereof."

The question is, therefore, does a temporary employee of the institution, holding the position of overseer and receiving a stated amount per day, come within this restriction. As the position is not one of those specifically named in the section, it must be held in order to bring the occupant thereof under its provisions, that he comes under the general title of officer of the institution.

Section 156 of the State Charities Law provides for the appointment of a superintendent and a treasurer of this institution, who are referred to therein as officers. I do not find any other statute creating or authorizing the creation of any other offices in connection with this institution, except that of its board of trustees. You have informed me that the position of overseer held by Anderson is a position filled by appointment by the superintendent of the institution, and that the occupant takes no oath of office. Authority, therefore, seems to be given by section 157 of the State Charities Law, which in part, provides:

"The superintendent shall, (1) appoint such employees as are necessary and proper for the due administration of the affairs of such institution, prescribe their duties and places, and, subject to the approval of the trustees, fix their compensation, within the appropriation fixed

therefor."

The statute itself names such appointees as employees as distinguished from the occupants of the more important positions created by statute, who were designated as officers.

In the case of Fox v. Mohawk and H. R. Humane Society, 165 N. Y. 517, the opinion at page 525 states:

"Of course the State or any of its subdivisions may employ individuals or corporations to do work or render services for it; but the distinction between a public officer and a public employee or contractor is plain and well recognized."

In the case of Miller v. Warner, 42 A. D. 208, where the question arose whether an electrical operator, appointed by resolution of the police board of the city of Rochester and given the title of superintendent, was an officer, the opinion states:

"A public office is not a natural growth of the soil, and can be created only by the legislature or by some municipal board or body authorized by the legislature to create a public office. The learned counsel in this action did not state any statute of this state creating such an office or authorizing any board or body to create the office of superintendent of the police telegraph system of the city of Rochester, and in the absence of such an act there can be no such office."

In Fox v. Mohawk and H. R. Humane Society above referred to, the opinion of the Appellate Division (25 A. D., at page 30) states:

"A corporation is not eligible to any public office for the reason, if there were no others, that it cannot take the oath of office."

That taking an oath of office is a necessary characteristic of a public officer, is recognized also in the same case by the Court of Appeals (165 N. Y., at page 525).

In the case of McDonald v. Mayor of New York, 32 Hun, at page 91, in construing a similar section in the New York Consolidation Act, the court said:

"That section is not to be broadly construed, because its effect is to restrict the exercise of private rights by restraining a class of persons from being interested in the performance of contracts, work, or business, or the sale of articles, in which, by general law, all persons may engage. It does not, therefore, apply to any one who is not within the description of persons included in the prohibition."

In view of the fact, therefore, that the position occupied by Anderson is not among those designated as offices by the statute, but that he is employed by the superintendent under a statute empowering such superintend ent to appoint employees, and that the occupant is not required to take an oath of office, and in view of the nature and temporary character of his employment, I am of the opinion that he is not an officer under the meaning of section 48, and does not come within the class prohibited thereby from furnishing supplies to the institution.

Yours very truly,

EDWARD R. O'MALLEY,
Attorney-General.

State Fiscal Supervisor may disapprove contracts made by the purchasing committee of superintendents.

STATE OF NEW YORK,

ATTORNEY-GENERAL'S OFFICE,
ALBANY, April 25, 1910.

Hon. DENNIS MCCARTHY, Fiscal Supervisor, Albany, N. Y.:

DEAR SIR.I have your letter of the 23d inst., in which you ask my opinion as to your right to disapprove a contract which you state was made on March 28, 1910, between the purchasing committee of superintendents for institutions reporting to your department and the Van Wyck Thorpe Company of Hudson for coal. I note that this contract has not yet been delivered to you for approval but that you are just in receipt of an analysis of coal delivered which indicates to you that a delivery has been made under it.

Section 48 of the State Charities Law provides the method by which a purchasing committee of superintendents and managers or trustees of institutions reporting to you may be created and defines the powers of such committee. It provides in part:

"Such purchasing committee may appoint a secretary who is also a stenographer and may also consider proposals and make awards under joint contracts for the purchase of staple articles of supplies for any or all of the State institutions reporting to the Fiscal Supervisor and shall appoint a committee of two to execute joint contracts in accordance with such awards, subject to the approval of the Fiscal Supervisor.”

It is further provided that all powers conferred by this section upon the purchasing committee shall be exercised subject to the powers possessed or hereafter conferred upon you.

It is my opinion that under the foregoing provisions of the statute you

may disapprove the contract entered into by the purchasing committee for the supply of coal referred to in your letter. Such action on your part, however, should be taken promptly as soon as the terms of the contract are called to your attention. From the statement contained in your letter it appears that you are only just aware of the fact that the contract is being acted upon, and I therefore infer that there has not been any delay on your part which could possibly be claimed to estop you from exercising your rights.

I therefore advise you that if you so desire, you may notify the contractor and the purchasing committee at once that you disapprove the contract or that you withhold approval until its specifications are made satisfactory to

you.

Yours respectfully,

EDWARD R. O'MALLEY,
Attorney-General.

As to the Authority of the State Fiscal Supervisor to Disapprove of the Award of Certain Contracts

BIDS SUPPLYING COAL AT THE NEW YORK SOLDIERS AND SAILORS' HOME AT BATH - CHAPTER 149, LAWS 1909 AND AMENDATORY ACTS. In the purchase of supplies for the State institutions reporting to the Fiscal Supervisor, authority is given to purchase the same upon contract, with the approval of the Fiscal Suervisor, but all such contracts must be made with the lowest responsible bidder.

INQUIRY.

J. E. Ewell, Commandant of the New York Soldiers and Sailors' Home at Bath, under date of April 8, 1915, submitted an inquiry as to whether the fiscal supervisor is authorized to disapprove of the award of a contract made by the purchasing committee of superintendents of institutions reporting to the fiscal supervisor to the lowest bidder of certain grade of coal for such home; and if such award and contract is disapproved by the fiscal supervisor, has the purchasing committee the right and power, in the exercise of its discretion to award the contract to a higher bidder, "if reasons satisfactory to the committee are shown why such award should be made."

OPINION.

It appears by the communication above referred to, and the copies of papers accompanying the same, that the purchasing committee of superintendents of institutions reporting to the fiscal supervisor, advertised for bids for supplying the New York State Soldiers and Sailors' Home at Bath with buckwheat, No. 3, anthracite coal, returnable March 23, 1915; that the quantity of such coal to be furnished for one year was estimated to be 14,000 gross tons for a period of twelve months from April 1, 1915; that the lowest bid was made by John W. Peale, at $2.22 per gross ton, 16 per cent ash, 12,100 B. T. U. dry 117,870 B. T. U. net for one cent.

The second lowest bid was made by G. H. Parker, representing D., L. & W. Coal Co., at $2.25 per gross ton, 18 per cent ash, 12,200 B. T. U. dry 116,786, B. T. U. net for one cent.

That the net difference in the two bids is about two cents per gross ton; that the committee awarded the contract to John W. Peale, the lowest bidder;

that the award is required to be approved by the fiscal supervisor before it becomes operative and that such approval has not been given.

The language of section 48 of the State Charities Law as amended by chapter 662 of the Laws of 1913, which applies to the question under consideration, reads as follows: "The boards of managers or trustees or other board or officer performing similar functions in the institutions reporting to the fiscal supervisor may be authorized by the fiscal supervisor to purchase by contract such supplies not included under joint contract as it may be found desirable to purchase for the use of any such institution. Such contracts shall be executed by the superintendent of such institution under the direction of the board of managers or trustees or other board or officer performing similar functions, as the case may be, and subject to the approval of the fiscal supervisor. Such contracts shall be let in conformity with the provisions of this article in relation to estimates and shall be awarded to the lowest responsible bidder. All contracts, if let, shall subject to the provisions of this article relating to estimates, be awarded to the lowest responsible bidder.” It thus appears that the words “shall be awarded to the lowest responsible bidder," occur twice in the same section and strongly indicates that the Legislature intended to emphasize its determination of letting contracts for such supplies in every instance to the lowest bidder.

The language is mandatory and in my opinion nothing is left to the discretion of either the purchasing committee or fiscal supervisor except the responsibility of such bidders.

In regard to the inquiry as to whether the purchasing committee will have the right and power to award the contract to the next lowest bidder in the event of the fiscal supervisor's disapproval of a contract with the lowest bidder, I desire to say that the statute under which you are acting does not contemplate any contract with any person, firm or corporation except the lowest responsible bidder and unless such lowest bidder is found not to be responsible, I think a refusal of the fiscal supervisor to approve of a contract with him would be in violation of both the spirit and the letter of the statute; but if such a condition should arise, I think it would be the duty of the purchasing committee to re-advertise for bids and upon such re-advertising to let the contract to the lowest responsible bidder with the approval of the fiscal supervisor. The fact that there is only a net difference of about two cents per ton in the two lowest bids should not influence either the purchasing committee or the fiscal supervisor from following the plain mandate of the statute, for while the difference upon a ton is trivial, the aggregate difference amounts to quite a sum.

While the reservation made by the purchasing committee "to reject any or all proposals made," was a wise provision, it does not authorize the committee to arbitrarily reject the lowest bid and award the contract to a higher bidder unless the lowest bidder is found to be irresponsible.

Much discretion is given to the fiscal supervisor in various matters connected with the duties of his office, but as hereinbefore stated, I think the only discretion given to him in the approval or disapproval of a contract of the nature referred to in your communication, where the prices bid are apparently reasonable, applies only to the responsibility of the lowest bidder. Dated April 14, 1915. E. E. WOODBURY, Attorney-General.

To J. E. EWELL, Commandant of New York State Soliders and Sailors' Home, Bath.