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This is conceded by the appellants, and it is also practically conceded that the statute in that respect has not been followed, but it is claimed that the violation of the statute is only a technical one, and that the village has not been injured by it.

It appears that many claims were paid by the treasurer and never passed upon by the board of trustees until they examined the treasurer's accounts at the end of the year, and that then, in examining his vouchers for moneys paid out, they passed upon such claims; and it is claimed that passing upon and approving his accounts at that time was practically an audit of the claims.

Assuming that such action was, in a sense, an audit of the claims, it should need no argument to convince any one that the payment of a claim first and the ascertainment of its legality and correctness afterwards is a grossly improper way of paying out the public moneys, even if there was no statute regulating the matter. Here there is a statute, and the method pursued is directly the reverse of that provided for by the statute.

It is not a mere technical violation of the law. All provisions of law enacted to protect our public treasuries are matters of substance, and a violation of any of them is a substantial and not a technical violation of law.

It may be that in this particular case the village has not suffered, but we do not know. We can readily understand that an account that has been paid will not, in many cases, be subjected to the same rigid scrutiny as one that has not.

This practice inevitably leads to looseness in the examination of claims against the village, and invites the presentation of illegal, improper and extravagant claims, and must sooner or later result in plundering the treasury. It is a method of transacting the public business that cannot be too strongly condemned.

The next class to be considered is that of liabilities and claims contracted, for which no appropriation has been made, or which are in excess of the amount appropriated therefor.

There is no need of discussing this. Section 3 of title 7 absolutely forbids the contracting of debts for which no appropriation has been made, or in excess of the appropriation for the current year, and makes further explanation unnecessary.

The next class to be considered is that of moneys paid for streets

App. Div.]

THIRD DEPARTMENT, MARCH TERM, 1898.

not opened on lands not theretofore acquired by the village, and for the construction of sewers without authority of law.

It

appears that two streets were laid out and constructed without any resolution or ordinance having been passed by the board of trustees providing therefor, and without the land having been previously acquired; and no part of the expense of the work appears to have been raised from or paid by an assessment upon the property benefited, as the law requires, but paid from the village treasury, and without being previously audited by the board of trustees. Not a single requirement of the statute in regard to the opening, laying out and improvement of the streets, and of paying the expenses therefor, seems to have been complied with.

Section 31 of title 8 of the statute provides, amongst other things, as follows: "Whenever the board of trustees shall intend to make and construct any of said drains or sewers exceeding twenty rods in length, they shall, before ordering the same, cause a notice of such intention to be published for two weeks successively in one or more of the newspapers published in said village, stating the time when and the place where said board will meet to act thereon. At such meeting, or at such adjourned or subsequent meeting as they shall order said hearing to be had, they shall hear such reasons as shall be given for or against the same."

This statute was not complied with, neither does it appear that the board of trustees ever authorized the construction of the sewers, but the work was apparently done under the direction and by the authority of the sewer committee, or of the chairman of that committee. The statute confers no such power upon a committee of the board of trustees.

The power to order the construction of sewers is conferred upon the board of trustees. In this case they did not attempt to delegate their authority to the committee, and if they had it would have been nugatory. The power conferred is one involving the exercise of judgment and discretion and cannot be delegated. (Matter of Emigrant Ind. Savings Bank, 75 N. Y. 388, 393.)

The expense of constructing these sewers appears to have been paid from the village treasury without being previously audited by the board of trustees, and no part of such expense was provided or paid for by assessments upon the property benefited.

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It was claimed upon the part of the appellants that these sewers were constructed by order of the board of health, and that that relieved them from complying with the requirements of the statute. I can find no evidence that these sewers were constructed either by the order of the board of health or under their authority and direction; the most that appears is a recital by them of the condition of the localities where the sewers were laid and the need of sewerage, followed by a resolution reading as follows: "Resolved, that the matter be brought to the attention of the board of trustees with the urgent request that suitable remedies be applied at once."

So that these sewers were not constructed under the authority or even by the direction of the board of health, but at the most upon their recommendation, and this recommendation could be and should have been carried out in the manner provided by law for the building of sewers.

The deed of the ground where the streets were laid out, and where some of these sewers or portions of them were laid, was given to the village after the streets had been laid out and constructed. While that vests the title to the land in the village, it does not otherwise cure the violation of law by the trustees in laying out such streets or constructing such sewers in disregard of the statute, or in paying the expense of these improvements to private lands wholly out of the village treasury, instead of paying it or a portion of it out of assessments upon the property benefited, as the statute requires.

All the provisions of the statute that I have so far considered are evidently intended for the protection of the taxpayers, to prevent waste and extravagance, and to limit the amount that can be raised or expended for village purposes, and they should be strictly construed to carry out that purpose and intent.

The next to be considered are alleged illegal items contained in bills of the board of health.

The item of $211 for registration of births, marriages and deaths, the justice found to be an overcharge to the amount of $105.50, and his finding in that respect does not appear to be questioned by the appellants. Another item is $1,532.88 for groceries furnished by a member of the board of health, by direction of the board of health, to different persons and families while isolated in their own dwellings by direction of the board of health, because they had, or had

App. Div.] THIRD DEPARTMENT, MARCH TERM, 1898.

been exposed to, some infectious disease. This expenditure I understand to have been, not for medicines or anything in the nature of medicines, but for food for the ordinary maintenance and support of such persons and families. The following is part of a bill for supplies furnished to one of the persons quarantined:

"1 half cord of wood, $2.25; cartage, 25 cts. ; paid woman for washing clothes, $2.00; 1 bottle cod liver oil; 1 bottle pickles, 25 cts.; 3 lbs. rice, 24 cts.; 1 doz. of eggs, 20 cts. ; 2 Meat, 20 cts. ; 2 cans tomatoes, 20 cts.; 2 cans corn, 20 cts.; 1 sack of something, 30 cts.; 1 mug mustard, 10 cts. ; 1 bottle catchup, 25 cts.; 14 lb. cheese, 23 cts.; 1 can strawberries, 25 cts.; 3 doz. c. pins, 12 cts. ; 4 lbs. beefsteak, 63 cts. ; 5 lbs. trout, 40 cts.; 1 qt. syrup, 13 cts. ; 2 lbs. butter, 50 cts. ; 4 lbs. sugar, 24 cts.; 1 doz. eggs, 18 cts."

It is claimed on behalf of the appellants that these bills for supplies were properly contracted for by the board of health, and audited by the board of trustees under the Public Health Law, being chapter 661 of the Laws of 1893, with its amendments. (See 1 R. S. [9th ed.] 787, et seq.)

The respondents claim that it is no part of the duty of the board of health to furnish provisions to isolated persons; that, if such persons are needy, the proper officers to supply their wants are the poor authorities of the town.

We are not required, however, to pass upon that question, for it appears that such provisions were furnished by a member of the board of health out of his own store, and he participated in the audit of his own bills. This is more than a mere impropriety; it is a positive illegality. A member of the board of health is a public officer and trustee for the public, and has no right to deal with himself. His claim for articles furnished is disposed of by the cases of Smith v. City of Albany (61 N. Y. 444) ; Beebe v. Supervisors of Sullivan County (64 Hun, 377). (See, also, § 473 of the Penal Code.)

The next class of expenditures are those claimed to have been made utterly without authority of law, one item being money paid to an architect for drawing plans and specifications for a town house, and the other being the payment of attorneys for appearing before committees of the Legislature and before the Governor, and urging the passage of a law to bond the village to pay for various proposed public improvements.

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I find more embarrassment in dealing with these items than with those heretofore considered. At the time when the plans and specifications for the town house were drawn up, no town house had been authorized to be erected; it was contemplated to submit the question of building a town house to the electors of the village.

The statute, in providing for what purposes money may be raised, provides (see subd. 7, § 1, tit. 7) for including an amount for "contingent expenses and other general purposes," thus recognizing the fact that there come up from time to time matters not foreseen at the time of making up the budget, and, therefore, not expressly provided for, and recognizing also the fact that, in the administration of every municipal government, there are incidental matters of business administration and expenses that are not expressly provided for in the statute, but that must be met.

The provisions in subdivision 8 of this same section, by which money may be raised for special purposes, such special purposes to be passed upon by the electors, may also fairly be taken into consideration in determining that the village may go into some matters of public concern not expressly authorized by its charter; and the procuring or erection of buildings wherein its officials may be housed and the public business transacted, is one not at all foreign, but incidental, to the purposes of a municipality; and in submitting the proposal to the electors as to whether such a thing shall be done, an estimate of the probable expense is certainly proper, if not necessary, in order to enable them to pass intelligently upon that question. Of course the probable expense cannot be estimated unless there are plans and specifications of the building proposed to be erected. Who shall prepare them, and who meet the expense? Shall it be left to the enterprise and public spirit of a private citizen or citizens, or can it not fairly be said to be incident to the powers and duties imposed upon the municipality, and that it should be paid out of the fund raised for contingent and general purposes?

The board of trustees, by subdivision 20, section 5 of title 4, is authorized "to employ an attorney and counsel when the business of the board of trustees or village requires, either by the year or otherwise, and to pay him a reasonable compensation."

Under that provision of the statute, had the trustees power to employ counsel to appear before committees of the Legislature