uncompleted work to Mr. Shaughnessy, and if the contract with him should be thrown up or canceled by mutual agreement and upon a re-letting of the same it should be done at a lower figure, such amount would still be good evidence of the damages sustained by the State, for it is well known that prices of both labor and material are constantly changing; but suppose that should be done at some later period for the purposes of this action against these defendant corporations that "excess of cost" has been fixed at the aforesaid amount of $22,380.05 shortly after the failure of the said Aikenhead, Bailey & Donaldson, Inc., to complete and fulfill their contract, and if either defendant should answer, it would devolve upon it to show that the amount so ascertained is excessive; and it would simply raise a question of fact as to the excess of cost" in that case and, like all questions of fact, is open to contest and settlement upon the trial. The statute does not say that the amount at which the uncompleted work is let shall be fixed or established as the basis of the excess of cost," but that such defaulting contractor and bondsmen shall pay the excess of cost," and it follows that the actual excess of cost " will be the true measure of damage in the action however the amount may be arrived at, and I therefore conclude that the withdrawal of Mr. Shaughnessy from the contract, no matter how it is brought about, cannot in any way affect the action pending between the State and the contractor and bonding company.

66

The second inquiry is more difficult of solution.

There is ample power vested in the commissioner of highways to cancel an uncompleted contract if the work is not being done according to the contract, plans and specifications, or for the best interests of the State, but there seems to be no provision for the cancellation of contracts on account of the lack of funds to carry on the work. However, such a condition seems to have arisen and the suspension of work on road No. 976 is occasioned entirely by the lack of available funds; hence the State is in default, and if Mr. Shaughnessy is willing to waive all questions of damages, and consent to a cancellation of the contract, thereby severing all contractual relations between himself and the State as to that road, I think the commissioner of highways, vested as he is with the general supervision of all State and county highways, would

have the power and authority to enter into an agreement for such cancellation, which agreement should include a waiver by both parties of all damages for loss of profits, action, or causes of action, which have accrued or may hereafter accrue to either party on account of such contract or the annulment and cancellation thereof.

The road could then be re-advertised and re-let after the funds. for the completion thereof have become available, either by a recovery in the pending action or by a new appropriation, if such course is deemed for the best interests of the State, but in no event would it be proper to withdraw the security or release the surety as long as the contract remains uncanceled and in force and I must, therefore, answer the second inquiry in the negative. Dated, January 28, 1915.

E. E. WOODBURY,

Attorney-General.

To Hon. JOHN N. CARLISLE, Commissioner of Highways.

INSANITY LAW, SECTIONS 64 AND 65- PROPER CONTRACTING PARTY TO OBTAIN RIGHT TO CROSS RAILROAD RIGHT OF WAY FOR ELECTRIC CONDUITS, AND EXTENT OF POWER TO CONTRACT

The State Hospital Commission may enter into a contract with a railroad to obtain permission to cross the tracks with an underground conduit necessary to supply electric power to a State Hospital, but a contract assuming to bind the State in an amount in excess of money lawfully available is not authorized or proper.

FACTS

The power house of the Binghamton State Hospital is located outside of the hospital grounds. The conduits required to supply electric current to the hospital of necessity must cross the tracks and right of way of the Erie Railroad Company. A proposed contract for underground conduits has been prepared by the railroad for this purpose.

INQUIRY

State Hospital Commission desires to be advised as to its authority, or of the hospital officials, to execute such an agreement on the terms as outlined.

OPINION

By section 64 of the Insanity Law such a right or interest as is required across the railroad right of way could be obtained under the Condemnation Law by a proceeding instituted and maintained in the name of the People of the State of New York by the Attorney-General, if the State Hospital Commission is unable to agree with the railroad upon a contract conveying such license.

As at present worded, the contract goes beyond the power of the State Hospital Commission to bind the State, for it does not contain the provision required by section 65 of the Insanity Law:

66* * * All contracts for the erection, alteration, repair and improvement of hospitals 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."

Section 35 of the State Finance Law also has been violated:

"A State officer, employee, board, department or commission shall not contract indebtedness on behalf of the State nor assume to bind the State in an amount in excess of the money appropriated or otherwise lawfully available.”

The paragraphs of the proposed contract which are referred to particularly are "Fourth," "Fifth" and "Sixth." The former undertakes to save the railroad harmless from all liability, present and future, which may result from constructing the conduit, and the latter two paragraphs place the expense on the hospital which would be caused by re-locating or removing conduit at the will of the railroad.

It is my opinion that the alteration or improvement desired comes fairly within sections 64 and 65 of the Insanity Law and the State Hospital Commission is the proper contracting party on behalf of the Binghamton State Hospital, and that a new contract should be drawn as indicated therein. If agreement cannot be reached with the Erie Railroad Company, the State Hospital Commission should issue a certificate as to the necessity of

acquiring such right or interest, approved and endorsed by the Governor, and send same to this office as a basis for a condemnation proceeding under section 64.

LAW, SECTION 70-LAWS OF 1913, CHAPTER 3.

Assistants of the Adjutant-General may be granted commissions by the Governor upon the recommendation of the Adjutant-General.

INQUIRY

The Adjutant-General has asked for an opinion "As to the legality of granting military commissions to assistants thus constituting them officers of the active militia with rank commensurate with duties required."

OPINION

Prior to the enactment of chapter 3 of the Laws of 1913, provision was made by section 18 of the Military Law for the appointment of five assistants by the Adjutant-General, "Two of the grade of colonel and three of the grade of lieutenantcolonel; one military storekeeper of the grade of captain; necessary clerks and employees and as many laborers as may be required from time to time."

It was further provided that the assistants and military storekeeper should be in active service and that they should be commissioned by the Governor upon the recommendation of the Adjutant-General, and entitled to all rights and privileges granted to officers of the National Guard.

Chapter III of the Laws of 1913 is an amendment to the above mentioned section 18 of the Military Law and provides, among other things, as follows:

"The Adjutant-General of the State shall have such assistants and such clerks, employees and laborers as may be

necessary from time to time who shall be appointed and shall be removed by him at his discretion, and any officer who is such an assistant may be rendered supernumerary by the Governor at any time. He may by writing filed in his office designate any one of his assistants to act as the Adjutant-General of the State in the absence of the latter from the capital city of the State or in case of his inability. to perform the duties of his office."

There is no provision in section 18 as thus amended, providing for the granting of commissions to such assistants, neither is there any prohibition therein against the granting of such commissions if such assistants are eligible under section 71 of the Military Law.

I also find the following provision in the above named section 71 of the Military Law which applies directly to the officers under the Adjutant-General as follows:

"officers of the corps of engineers, the signal corps, the adjutant-general's department, the inspector-general's department, the quartermaster's department, the subsistence department and the ordnance department above the grade of captain must possess the same requirements as officers of the line of the same respective grades."

This provision, placed as it is in that section of the Military Law prescribing the eligibility required of the individual about to receive a commission in the National Guard indicates the intention on the part of the Legislature to permit the commissioning of officers of the Adjutant-General's department, providing they possess the qualifications specified in sections 71 and 72 of the Military Law.

The provision last above quoted does not appear to be in conflict or inconsistent with the provisions of section 18, as amended by chapter 3 of the Laws of 1913.

There seems to be no limitations upon the Adjutant-General as to his selections for such assistants, but it will be necessary for such assistants to have had the active service in the National Guard for the grade or rank required by section 71 of the Military Law before such appointee can receive a commission.