
    The People of the State of New York ex rel. Charles W. Spaulding, Appellant, v. The Board of Supervisors of Saratoga County, Respondent.
    
      Supervisors — employment of a person to find homes for indigent children — he does not "place out” children or require a license from the Slate Born'd of Oharrities— effect of an assignment of his claim for compensation to the superintendent of the poor — it is not within section 473 of the Penal Code.
    
    The board of supervisors of Saratoga county adopted the following resolution: “Whereas, Rev. W. J. Maybee, of Syracuse, Superintendent for the State of New'York of the National Children’s Home - Society, appeared before this Board in behalf of said society, and offered to take the children who are now confined in orphan asylums at the expense of this county and find proper and suitable homes for such children at a sum not to exceed fifty (§50) dollars each, therefore, be it
    “ Resolved, That this Board recommends to the Superintendent of the Poor of this County that, whenever practicable, he place all children chargeable to the County in charge of the National Children’s Home Society, at an expense not to exceed the sum of fifty ($50) dollars for each child.”
    
      Held, that such resolution empowered the superintendent of the poor to employ Maybee to assist him in finding homes for indigent children, which was one of his official duties;
    That such a resolution was within the power of the board of supervisors;
    That the duty of placing children in the homes found by Maybee devolved upon the superintendent of the poor and not upon Maybeé', and, therefore, that the fact that Maybee was not licensed by the State Board of Charities to “place out” children, as required by section 3 of chapter 364 of the Laws of 1898, did not render the contract of employment invalid;
    That an assignment to the superintendent of the poor by Maybee of his claims for compensation for finding homes for the indigent children in pursuance of his contract was not within the condemnation of section 473 of thé Penal Code, which makes it a misdemeanor for a public officer authorized to make a contract in his official capacity to voluntarily become interested individually in such contract; that such an assignment was not obnoxious to public policy, as no assignment was necessary and the superintendent of the .poor might ■ have paid Maybee and have presented a claim for reimbursement in his own name.
    Appeal by the relator, Charles W. Spaulding, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Saratoga on the 21st day of May, 1901, denying the relator’s motion for a peremptory writ of mandamus, and also from a judgment entered upon said order in said clerk’s office on the 21st day of May, 1901.
    At its annual session in 1896 the board of supervisors of Sara-toga county passed the following resolution :■
    “Whereas, Rev. W. J. Maybee, of Syracuse, Superintendent for the. State of New York of the National Children’s Home Society, appeared before this Board in behalf of said society, and offered to take the children who are now confined in orphan asylums at the expense of this county, and find proper and suitable homes for such children at a sum .not to exceed fifty ($50) dollars each, therefore, be it
    
      “ Resolved, That this Board recommends to the Superintendent of the Poor of this County that,, whenever practicable, he place all children chargeable to the County in charge of the National Children's Home Society, at an expense not to exceed the sum of fifty ($50) dollars for each child.”
    In pursuance of such resolution the relator, who was the superintendent of the poor of Saratoga county, employed Maybee, the superintendent of the National Children’s Home Society, to find homes for indigent children for whose support the county was ■chargeable, and for the number so found in which such children were placed in 1897 Maybee presented his bill to the board, at its session in that year, and the same was duly audited and paid.
    At its annual session in 1897 the board of supervisors passed the following resolution :
    “ Resolved, That Superintendent Spaulding be and is hereby authorized to continue the arrangement with Rev. J. W. Maybee for providing homes for indigent children.”
    Maybee’s bill, at the rate of fifty dollars for each indigent child placed in the home found by him, was presented to the board at its session in 1898, and duly audited and paid. At its session in 1898 the board of supervisors passed the same resolution as passed by it the previous year, and at its session in 1899 the bill of Maybee, at the rate of fifty dollars for each indigent child for whom a home was provided, was audited and paid. At its annual session in 1899 the board passed the following resolution:
    
      “ Resolved, That the Superintendent of the Poor be and is hereby authorized to continue the arrangement with Rev. J, W. Maybee, for providing suitable homes for indigent children on the same terms as former years.”
    The resolution further provided that the superintendent should thereafter furnish the board on the first day of its annual session a list containing the names and ages of the children put out, and other facts in respect to them. At its annual session in 1900 three billsj verified by Maybee and assigned on the days of their verification to the relator, amounting in the aggregate to $1,026, for securing twenty homes for indigent children since November, 1899, at fifty dollars each, and twenty-six dollars for expenses incurred in taking and returning two such children, at the request of the superintend.ent, were presented to the board of supervisors. An error of fifty ■dollars was found in one of these bills, which, with the consent of Maybee and the relator, was deducted from the aggregate, and on the report of the committee to whom the bills Were referred the bills, after deducting said fifty dollars, were duly audited and allowed by the board.
    
      Thereafter the board reconsidered' the audit of these bills and they were referred to another committee, who reported against their allowance. Thereupon each of the bills was rejected and disallowed by the board,, with the following statement indorsed thereon- “ Rejected, not properly itemized. . The claimant not licensed by the State Board of Charities. The claimant not acting for any corporation or society approved by the State Board of Charities.”" Thereafter an application was made for a writ of peremptory mandamus, commanding the board to reconvene, audit and allow these claims. From the order denying the motion for such writ and from the judgment entered thereon this appeal is taken.
    
      Horace E. McKnight and Edgar T. Brackett, for the appellant.
    
      William D. McNulty, for the respondent
   Edwards, J.:

The ground for the rejection of the claims by the board of supervisors, that the claimant was not licensed by the State Board of Charities, is untenable. The provision of the statute requiring a. license is as follows : “ It is hereby made unlawful for any person or corporation, other than a charitable or benevolent institution,, society or association, or society for the prevention of cruelty to-children, now or hereafter duly incorporated tinder the laws of this, state, or a local officer charged with the relief of the poor and placing-out in the manner now provided by law, to place out any destitute child, directly or indirectly, unless such person or corporation shall be duly licensed, as hereinafter provided, by the state-board of charities, to place out destitute -children.” (Laws of 1898,. chap. 264, § 2.) If by the phrase, the claimant not licensed ” the-board of supervisors had reference to the relator, who was the-superintendent of the poor, it is clear that he was, within the exception of the statute,, “a local officer charged with the relief of the poor.”' He is an officer upon whom the statute imposes the duty of providing homes in, families for indigent children. Section 2 of chapter 438 of the Laws of 1884, which prohibits the sending-of children between the ages of two and sixteen years, as paupers,, to' any county poorhouse or almshouse, or the detention therein of such children for support, requires that' “ county superintendents, overseers of the poor, boards of charities or other officers, shall pro vide, for sueh child or children, i/n families, orphan asylums, hospitals, or other appropriate institutions, as provided by law.” Section 1 of the act requiring a license in certain cases (Laws of 1898, chap. 261) defines the term “ place out ” to be “ the placing of a destitute child vn a family, other than that of a relative within the second! degree, for the purpose of providing a home for such child P It is-evident that the placing out in families indigent children chargeable-to the county is one of the official duties of the superintendent of the poor. Nor did the duties of Maybee, under his contract, require-a license from the State Board of Charities. His employment under the resolutions of the board of supervisors was simply to find homes for the indigent children with whose support the county was-chargeable, and the superintendent, in pursuance of his statutory duty, placed out ” such children in such homes, in the exercise of the discretion which the law confided to him. Maybee had no legal authority to place them out. It was a pecuniary benefit to the-county to place indigent children in suitable homes and to be relieved from the further charge of such children other than the expense attending the placing of them in homes; and in view of the fact that it was impracticable for the superintendent of the poor, having various dpties to perform, to seek throughout the State for suitable homes in which such children could be placed, I think that the reasonable interpretation of the resolutions is, that the superintendent of the poor was thereby authorized to procure the assistance of Maybee, who was supposed to possess superior facilities for finding such homes, to aid' the superintendent in the discharge of his official duty, and for that purpose to authorize an expenditure of money not exceeding fifty dollars for each indigent child for whom the superintendent, through the aid of Maybee, should provide a suitable home. In other words, Maybee was simply an assistant to the superintendent of the poor, provided by the board of supervisors, who appropriated fifty dollars to defray expenses incurred by the superintendent in procuring homes for indigent children. It was simply an authority by the board of supervisors for the expenditure of a sum, not exceeding fifty dollars, by the superintendent of the poor for each indigent child placed by him in a suitable, home in pursuance of his statutory duty. This was an arrangement which. it was clearly competent for the board of supervisors to make.

The assignment of Maybee’s claims to the relator did not bring him within the condemnation of. section 473 of the Penal Code as contended by the respondent. That section makes it a misdemeanor for a public officer authorized to make a contract in his official capacity to voluntarily become interested, individually, in such contract. It prevents an officer from making a contract in his official capacity with himself as an individual, or from participating in the benefits of a contract made by him officially. The statute, regarding the infirmity of human nature, was designed to guard against the danger to the public from a conflict between individual interest and official duty. • The relator is not within the language or spirit of that section.

Nor were the assignments to the relator of the claims of Maybee in contravention of public policy. No assignments were necessary. The relator, as superintendent of the poor, was authorized to expend not exceeding fifty dollars for each indigent child chargeable to the county placed in a suitable home found by Maybee. Under his authority he could have expended this sum for each child and have a legal claim against the county for reimbursement. This was, in effect, what was done. The arrangement between him and Maybee was substantially the same as if the relator had paid Maybee and had presented a claim in his own name to the board of supervisors for reimbursement. That could not fall under the condemnation of being against public policy. The formal assignment to him of May-bee’s claim did not put him in any different relation to the county than he would have occupied if he had paid Maybee for his services and presented his claim under the resolution to the board of supervisors for expenses. It was a matter of form rather than of substance, and does not bring him within any principle of law prohibiting his recovery against the county.

I am of opinion that the order and judgment appealed from should be reversed and the relator’s motion for- a peremptory writ of main damns should be granted requiring the board of supervisors to reconvene and to audit and allow the claims at such sums as are proper.

All concurred.

Judgment and order reversed on the law and facts, with ten dollars costs and disbursements, and motion for writ of peremptory mandamus granted, with fifty dollars costs.,  