State institutions cannot supply water to villages without authority from the legislature. STATE OF NEW YORK, Hon. C. M. DISSELL, State Fiscal Supervisor, Albany, N. Y.: DEAR SIR. Your communication regarding the proposed sale of water to the village of Newark by the State Custodial Asylum for Feeble-Minded Women at Newark, has been received. I understand the facts to be as follows: The State has provided a water supply for this institution, which supply is taken from a spring purchased by the State in 1904. The capacity of this spring is far in excess of the present needs of the asylum. The question presented by you is whether the superintendent of the institution may sell surplus water to the village of Newark, said water to be metered and charged for at a rate to be fixed. The Legislature, in making an appropriation for securing this water supply, evidently contemplated only the establishment of a water system for the use of the institution, and no provision was made for the disposal of any surplus which might arise. While the sale of this water might result in financial benefit, it is not one of the objects contemplated in the formation of the institution nor in the establishment of the water system thereof. It is not necessary for the ordinary and proper management of the asylum, nor for attaining the ends and purposes thereof, that such a contract for the sale of surplus water should be made. It is, therefore, my opinion that the superintendent or board of managers of said asylum have no power to contract with the village of Newark for the sale of such surplus water, but such authority may be conferred by act of the Legislature. Yours truly, WILLIAM S. JACKSON, State institutions have no authority to sell water to any city, village, corporation or individual. STATE OF NEW YORK, ATTORNEY-GENERAL'S OFFICE. Hon. C. M. BISSELL, State Fiscal Supervisor, Albany, N. Y.: DEAR SIR.—I am pleased to acknowledge receipt of your favor of the 12th inst., in which you ask for my opinion as to the right of a State institution to sell water to a village except in an emergency, and you inform me that the superintendent of the Custodial Asylum for Feeble-Minded Women at Newark, N. Y., is now supplying the village of Newark with water to tide over the present drought which is reported as urgent and that the village has no other recourse. Section 81 of the State Charities Law vests in the board of managers of the above-named institution the custody and control of all the property thereof, which would include the control of the water plant connected therewith. I am unable to find any statutory authority for the sale of water from a State plant to a city, village, corporation or individual, but inasmuch as the water supply at the custodial asylum far exceeds the needs and requirements thereof, and the village of Newark is suffering from the drought and its municipal supply of water is insufficient for its present purposes, and as permission is only asked to tide over the present emergency, I can see no impropriety in the managers of the institution allowing the village to use the surplus, upon distinct understanding that such use is only temporary and can be discontinued at any time. Yours truly, EDWARD R. O'MALLEY, Authority of State Architect to issue "special orders" in excess of $1,000 and as orders for extra work. Necessity of advertising for bids, pre STATE OF NEW YORK, ATTORNEY-GENERAL'S OFFICE. Hon. FRANKLIN B. WARE, State Architect, Albany, N. Y.: DEAR SIR.- I have your letter of the 15th inst., in which you request my opinion as to the proper interpretation of section 49 of the State Charities Law. This section provides in part as follows: "Section 49. Plans and specifications, contracts, special orders, orders for extra work, special fund estimates, payments. The governor, the president of the state board of charities and the fiscal supervisor, or a majority of such officers, shall approve or reject plans and specifications for the erection, alteration, repairs or improvements of buildings or plant for any state institution reporting to the fiscal supervisor; and no such erection, alteration, repairs or improvement shall be made until the plans and specifications therefor have been so approved. Contracts for such work of erection, alteration, repairs or improvements may be let by the board of managers or trustees, with the approval of the governor, the president of the state board of charities and the fiscal supervisor, or a majority of such officers, for the whole or any part of the work to be performed, and, in the discretion of the managers or trustees, and subject to such approval, such contracts may be sublet. Special orders for such work in amounts less than one thousand dollars may be issued by the state architect upon authorization by the board of managers or trustees, subject to the approval of the fiscal supervisor. The fiscal supervisor and the board of managers or trustees shall determine to what extent and for what length of time advertisements are to be inserted in newspapers for proposals for the erection, alteration, repairs or improvements of buildings, or plant of state institutions reporting to the fiscal supervisor. A preliminary deposit or certified check drawn upon some legally incorporated bank or trust com * * pany of this state shall in all cases be required as an evidence of good faith, upon all proposals from contractors for such work, to be deposited with the superintendent of the institution for which the work is to be performed, in an amount to be determined by the state architect. All contracts in an amount greater than one thousand dollars shall have the performance thereof secured by sufficient bond or bonds, to be approved by and filed with the comptroller. All work done by special orders in an amount less than one thousand dollars need have no surety bond provided payment is to be made only after the work is completed and approved." You state that under this statute, it has been the practice in your department to issue special orders in the form approved by a former AttorneyGeneral for two purposes, (1) as orders for work which amounts to less than one thousand dollars, in accordance with the provisions of the State Charities Law, (2) as orders for extra work on contracts in force without regard to the limitation of $1,000. These orders would more properly be called, as you state, orders for extra work. I note that it is your contention that as these special orders in the first class constitute contracts, they may be issued by you in excess of the amount of $1,000, provided they are approved by the board of managers and the building improvement commission (composed of the Governor, the president of the State Board of Charities and the Fiscal Supervisor). Referring to the second class of special orders which should properly be designated "orders for extra work" under existing contracts, you state that in many instances it would be impossible to keep the amount under $1,000, you therefore ask my opinion upon the following two propositions, (1) whether special orders in sums greater than $1,000 can be issued by you in connection with State charitable institutions with the approval of the board of managers and of the building improvement commission, and (2) whether special orders for extra work under existing contracts can be issued by you in sums greater than $1,000. It is my I have given both of these questions very careful attention. opinion that the second question presents but little difficulty, as I understand from personal conversation the contracts all contained provisions authorizing orders for extra work which may be found necessary and it is under these provisions that such special orders are issued. The authority to do this depends upon the terms of the contract, not upon the provisions of section 49, and such orders, therefore, need not be limited in amount to $1,000, unless the contract itself should so provide. The first question which you ask is a more difficult one. A careful examination of the language of section 49, quoted above, fails to disclose authorization for any special orders in amounts greater than $1,000. It would, therefore, in my opinion, be necessary for you, if you desired to have any work done costing more than that sum to conform to all the requirements of the section in the case of contracts. The question then arises, and in our oral conference you asked me to pass on it, whether it will be necessary in every such case to advertise for bids and compel the party entering into the contracts to make a preliminary deposit and to give a bond. You will observe that there is no provision in the statute ex plicitly requiring contracts to be let after advertisement or to the lowest bidder. By implication, however, the provision that "the fiscal supervisor and the board of managers or trustees shall determine to what extent and for what length of time advertisements are to be inserted in newspapers for proposals" requires such advertisement. It is my opinion that this requirement must be satisfied in the case of the letting of every contract. It is true that, as you point out, where only one person or corporation can perform the work desired, it seems an unneces sary expenditure of the State's money to advertise; yet the principle of publicity for which this provision was enacted is of such great importance that it should be enforced uniformly, so as to avoid the possiblity of disregarding it, where it should be followed. At any rate, since the statute itself makes no exceptions, it is my opinion that those acting under its authority have no power to do so. The provisions of the statute in reference to the preliminary deposit and the furnishing of a bond also are mandatory and it is my opinion that they must be followed in every case of a contract, or special order independent of contract exceeding $1,000. The amount of such deposit, however, rests in your discretion, and the sufficiency of the bond rests with the Comptroller; so that in both cases it would be possible to take into consideration the actual risks of the State in determining these amounts. Very truly yours, EDWARD R. O'MALLEY, Boards of managers may not contract for any changes that will incur addi tional expense to State nor may they agree to save harmless railroad companies from losses and damage. STATE OF NEW YORK, ATTORNEY-GENERAL'S OFFICE, Hon. FRANKLIN B. WARE, State Architect, Albany, N. Y.: DEAR SIR.I have your letter of the 4th instant asking for my opinion as to the form of agreement between the Erie Railroad Company and the New York State Industrial School at Industry, N. Y., which you enclose, for improving the plant and property of said school by the elimination of a grade crossing of a private road on its property and the railroad of said company, and constructing at such point an overhead crossing. By Chapter 433 of the Laws of 1909 there was appropriated for this school. for under and over passes, $5,000, which appropriation was apparently ex pressly made for work contemplated by said contract. The only authority in the Board of Managers to make a contract at all for improving the plant of said school is found in section 49 of the State Charities Law, and then the contract must have the approval of the Governor. the president of the State Board of Charities and the Fiscal Supervisor. This section further provides: "All such contracts and special orders for the erection, alteration repairs or improvements of buildings or plant of State institutions, re porting to the fiscal supervisor (and said school is one of them) shall contain a clause that the contract shall only be deemed executory to the extent of the moneys available, and no liability shall be incurred by the State beyond the moneys available for the purpose." And along the same line, section 35 of the State Finance Law provides: "A state officer, employee, board, department or commission shall not contract indebtedness on behalf of the state, nor assume to bind the atate, in an amount in excess of money appropriated or otherwise lawfully available." The substance of the last mentioned statute is also in section 21 of Article III of the State Constitution in this language: "No money shall ever be paid out of the treasury of this state or any of the funds under its management, except in pursuance of an appropriation by law." I am constrained, therefore, to disapprove the contract as to form, for it fails to contain any clause whatever as provided in the State Charities Law above quoted, that the "contract shall only be deemed executory to the extent of the moneys available." Furthermore, the board of managers agrees, at its own expense, to make all the necessary changes in respect to said undergrade or overhead crossings, or either of them, which may be required, in connection with the construction and installation of any additional track or tracks by the railroad company on its right of way, which might incur an enormous expense to the State, and thereby be a violation of section 35 of the State Finance Law, already quoted. The clause that the board of managers agree to save harmless said railroad company from any losses, damages, suits, claims and demands which the company may directly or indirectly suffer, is a clause that might result in damages to the State, which would seem to be in conflict with the provisions of the Finance Law also. For the reasons given, I do not feel that I can approve the contract in its present form. Very truly yours, EDWARD R. O'MALLEY, Lowest bid for contract being in excess of the appropriation made for such work, and an unexpended balance remaining from the appropriation for cottages and a trunk conduit, etc., such balance may lawfully be used for sewerage plant. STATE OF NEW YORK, ATTORNEY-GENERAL'S OFFICE, Hon. CLARK WILLIAMS, State Comptroller, Albany, N. Y.: DEAR SIR.—I have the honor to acknowledge receipt of your communication of February 16, 1910, enclosing a letter from the State Architect. It appears that by Chapter 466, Laws of 1908. Chapter 461, Laws of 1909, and Chapter |