George Crane Morehouse.

The supervisors' manual : a practical treatise on the law applicable to the duties of supervisors from the date of their election to the end of their official term; also, the law relative to town bonds, railroad aid bonds, defective roads and bridges, town meetings, assessment and collection of taxe online

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Online LibraryGeorge Crane MorehouseThe supervisors' manual : a practical treatise on the law applicable to the duties of supervisors from the date of their election to the end of their official term; also, the law relative to town bonds, railroad aid bonds, defective roads and bridges, town meetings, assessment and collection of taxe → online text (page 1 of 96)
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Cornell University Law Librai^

The Moak Collection

PURCHASED FOR

The School of Law of Cornell University

And Presented February 14, 1893

IN nEnoRY OF

JUDGE DOUGLASS BOARDMAN

nPST DEAN OF THt SCHOOL

By hi!. Wife and Dausrhter
A. M. BOARDMAN and ELLEN D. WILLIA/Hs,




The original of this book is in
the Cornell University Library.

There are no known copyright restrictions in
the United States on the use of the text.



http://www.archive.org/cletails/cu31924022869345



THE



SUPERVISORS' MANUAL.



PEACTICAl TREATISE ON THE lAW



APPLICABLE TO THE



DUTIES OF SUPERVISORS



FROM THE DATE OF THEIR ELECTION TO THE END OF THEIR

OFFICIAL TERM; ALSO, THE LAW RELATIVE TO TOWN BONDS,

RAILROAD AID BONDS, DEFECTIVE ROADS AND BRIDGES,

TOWN MEETINGS, ASSESSMENT AND COLLECTION OF

TAXES, EQUALIZATION, TOWN OFFICERS' FEES,

AUDITING OF ACCOUNTS, DUTIES OP THE

CLERK, ETC., WITH THE



DECISIONS OF THE COURTS AND NECESSARY FORMS.



SEPTEMBER 1, 1889.
Bt GEORGE C.'M^REHGUSE,

Of the Utica Bar^ formerly one of the Supervisors of Oneida County,



ALBANY:

H. B. PAKSOSrS, PUBLISHER.

1889.



Eniered according to Act of Congress, in the year one thousand eight hundred and eighty-nine,

H. B. PARSONS,
In the office of the Librarian of Congress, at Washington.



WEED, PARSONS & CO.,

PRINTERS AND ELECTROTVPKRS.

ALBANY, N. Y.



PKEFACE TO THE SECOND EDITION.



The numerous changes in the laws have rendered necessary a revi-
sion of the Manual. The work has been re-written, enlarged and
revised to date, and is believed to contain^ a correct statement of the
law and practice governing the subjects treated.

In order to accomplish this, a careful examination of the session
laws, the decisions of the courts and the journals of proceedings of the
seyeral boards throughout the State have been made, and the results
embodied in the work.

The same general plan contained in the first edition has been con-
tinued in this, for the reason that it has met the hearty approval of
the judges, lawyers, supervisors and others using the work, whose
commendation is worthy of consideration, and whose experience and
opinion command respect.

Several chapters have been added upon those subjects which seem
to be most necessary, such as Roads and Bridges, Defective Roads and
Bridges, Municipal Debts, Railroad Aid Bonds, Town Meetings, etc.,
which occupy so large a part in the duties of towns, counties and their
oflBcers, together with the decisions upon these questions which are
both numerous and important.

These have necessarily crowded out many local laws which would
have been gladly inserted.

G. C. M.

September 1, 1889.

The references to the Revised Statutes are to the seventh edition.



PREFACE TO THE FIRST EDITION.



One of the marked tendencies of legislation in this State, for the
past few years, is that of intrusting the direction and control of purely
local affairs to local officers, leaving the State legislature to act in
those cases which affect the whole State.

This is manifest in the additional powers conferred upon town and
county officers, the responsibility of towns for the acts and negligence
of their officers, and particularly in the extensive legislative powers
granted to boards of supervisors over matters formerly under the ex-
clusive control of the State legislature.

The statutes defining the powers of supervisors were formerly con-
tained in a page or two of the session laws; now a volume is required
for the same purpose.

With the extension of power comes a corresponding increase in
duties and responsibilities and a consequent demand for more intelli-
gent, better qualified officers.

The questions to be acted on by boards of supervisors are perplex-
ing and complicated, and require, if properly decided, great care,
discretion, sound judgment, and a thorough knowledge of the statutes
on the subject.

Such knowledge is not intuitive nor inherited. It cannot be ac-
quired except by diligent effort and careful study, and they are a wise
people that, having found a competent officer, retain him in his place
as long as he will consent to serve.

It is the aim of this work to give the law and the practice per-
taining to the office of supervisor, as they exist on November 1,
1886.

For this purpose a careful examination of the statutes, the decisions
of the courts and the practice of the several boards of supervisors
throughout the State has been made.

The work is an enlargement of a brief used by the writer while
serving as one of the supervisors of Oneida county, and is arranged
in the way found by him to be most convenient for practical, every-
day use.



IV



Preface.



Judging from experience and from an examination of the published
journals of the several boards of supervisors in the State, such boards,
are liable to err in two particulars :

First. Blindly following in the steps of their predecessors without
knowing whether or not tlie precedent followed is founded upon
sound legal principles.

Second. The assumption of more power than the law confers upon
them.

It cannot be too thoroughly understood that the board of super-
visors possess only such powers as are expressly or by necessary impli-
cation given to them ; that they are not invested with absolute powers
over all legislative subjects; that within the limited field, expressly
defined and marked out for them by the legislature, they are author-
ized to act, and beyond this they cannot go ; that the first question to
be settled by them in any given case is, not are we prohibited from
acting in the matter but is there any statute conferring upon us the
right to act therein? If no statute conferring such power to act can
be found, then they have no right to act.

The references in this volume to the Revised Statutes are to the
seventh edition, by Banks Bros.

Acknowledgment is hereby made to Hon. M. H. Merwin, Hon. W.
B. Sutton, A. C. Miller, Esq., E. 0. Jones, Esq., of Utica, N. Y.,
to Messrs. Wauful, Lewis, Marshall, of the Oneida county board of
supervisors, to R. B. Maxfield, clerk of the board, Hon. W. D.
Biddlecome, school commissioner, Geo. E. Dunham, and Mr. John
Kohlor, ex-county treasurer, for many valuable suggestions.

To J. B. Cushman, of TJtica, N. Y., one of the oldest and best
qualified supervisors in the State, I am especially indebted for the
benefit of his experience and the suggestions he has given, which have
rendered his assistance invaluable.

G. C. M.

November 1, 1886.



CONTENTS.



PAQE.

Introductory chapter , , . . . vii

CHAPTEK I.
"What acts public officers are prohibited from doing 1

CHAPTER IL
Election and qualification of supervisor 4

CHAPTER III.
The supervisor 31

CHAPTER IV.
Elections 145

CHAPTER V.
Of the assessment and collection of taxes 185

CHAPTER VL
•Corporations — assessment and taxation of 299

CHAPTER VII.
Equalization 332

CHAPTER VIII.
Auditing of accounts 337

CHAPTER IX.

Of the powers and duties of counties as bodies corporate — Of the
board of supervisors 447

CHAPTER X.
Of the board of supervisors (continued) — Miscellaneous duties. . 513



Ti" Contents.

CHAPTER XL

PAOE.

Organization of the board of supervisors 623^

CHAPTER XII.

Committee on legislation — committee on ratio and apportion-
ment 635

CHAPTER XIII.
Of the duties of the clerk 64S

CHAPTER XIV.
Roads and bridges — Defective roads and bridges, etc 660

CHAPTER XV.
Municipal indebtedness — Railroad aid bonds 709

CHAPTER XVI.

Actions and proceedings by and against towns, the supervisors
and counties 735'

CHAPTER XVII.
Towns as bodies corporate, town meetings, etc 765

CHAPTER XVIII.
Digest of fees 794

Note "A" 809



SUPERVISORS' MANUAL.



INTRODUCTORY CHAPTER.

Jurisdiction of " local legislatures," etc. Local authorities apt to exceed their jurisdic-
Extent of powers conferred. tion.

The test to be applied.

Jurisdiction of " liocal Legislatures," etc. —

It is the theory of our government that the people is the sovereign
and the Constitution of the State the organic structiire through
which the predominating social forces there existing are made mani-
fest ; that the sovereign power is exercised through the channels es-
tablished for it by the Constitution, to-wit, the legislature, the execu-
tive and the judiciary.

The will of the sovereign people is expressed in the laws which it
enacts through the legislature, and such enactments are limited and
restrained only by the Constitution.

There is another fundamental principle which also plays an im-
portant part; that of local self-government, by the town meeting, the
boards of supervisors and other local authorities, all of whose rights,
powers and duties are specifically. defined and set forth in statutes
enacted by the legislature under and subject to the provisions of the
.Constitution.

These local authorities are not the sovereign power, nor invested
with any powers except in the special cases and upoA the specific
subjects confided to them by the legislature, and the means by which
it can be ascertained just what powers have been intrusted to them,
must be found in some Statutes duly enacted by the legislature.

In all cases and upon all subjects not thus specifically confided to
them, the people have reserved the power to themselves. Jurisdic-
tion means the limit within which power may be exercised. When
the powers, the territory or the subjects over which jurisdiction may



viii Introductory Chapter.

be exercised, are confined within narrow limits, snch jurisdiction is
said to be inferior.

The jurisdiction of town and county authorities is inferior. They
cannot act upon what they think the law ought to be, nor can they
acquire jurisdiction by asserting it.

Their jurisdiction is limited as to territory, persons and particular
subjects, and unless some statute gives them power to act concerning
such territory, persons or subjects, they have no right to ac£, and
any act beyond their jurisdiction is void, of no more validity than
are the acts of other individuals, and should such void acts cause in-
jury to others, they are personally liable therefor.

Hxtent of POTTers Conferred. — Statutes containing
grants of power must be construed so as to include the authority to
do all things necessary to make the object of the grant effectual, and
to enable the donee of the power to accomplish the expressed pur-
poses of the act.

Mayor, etc., v. Sands, 105 N. Y. 210.

The grant of an express power carries with it, by necessary impli-
cation, every other power necessary and proper to the execution of
the power expressly granted.

1 Kent's Com. 404.

So far has this principle been carried, that the courts have sus-
tained grants of power by the legislature to boards of supervisors,
which could not be exercised by the legislature itself.

People, exrel. Morrill, v. Supervisors, 112 If. Y. 585.

When control over the whole subject is conferred, the legislative
discretion as to all incidents and details and the mode of accomplish-
ing the purpose, is also conferred, and cannot be reviewed upon appeal.

Hubbard t. Sadler, 104 N. Y. 223.

Local Authorities apt to Exceed their Ju-
risdiction. — An examination of the proceedings of the boards
of supervisors shows that it is tlieir custom to exercise powers not
conferred upon them by law, to legislate upon subjects not com-
mitted to them, to audit claims not legal charges, upon some notion
of their own as to its equity, to act upon the theory that because
they are not especially prohibited from acting in certain cases, that,
therefore, they have the right to act therein, etc.



iNTEODtrCTOEY. ChAPTBE. JX

Tbe Test to be Applied.— It is not a difficult nor im-
possible test to apply to the many questions presented to such boards,
and that test is, what statute confers on us the right to act in this
case ? If none can be found, then the right does not exist. It is
hoped that this book will aid in answering such questions.



CHAPTER I.

Sbo. 1. Public officer not to be interested Acts of ofUcer de facto .

in any sale, lease or contracts, Corrupt bargain for appointment

etc. ' to office.
Misappropriation, etc., and falsi- Sec. 3. Taking fees not authorized by law

fication of accounts by public or for services not rendered,

officers. Intrusion into public office.

Other violations of law. Officer refusing to surrender books,

Certain contracts may be declared etc., to successor,

void . 4. Neglect of duty.
2. Penalty for acting in a public of-
fice without qualifying.

Section 1. Public Officer not to be Interested
in any Sale, Lease or Contracts, etc. — A public

officer or school officer who is authorized to sell or lease any prop-
erty, or to make any contract in his official capacity, or to take part
in making any such sale, lease or contract, who volnntarily becomes
interested individually in such sale, lease or contract, directly or in-
directly, is guilty of a misdemeanor.

Penal Code, § 4?3, as amended by chap. 493, Laws of 1888.

Misappropriation, etc., and Falsification of
Accounts by Public Officers.— A public officer, or a
deputy or clerk of any such officer, and any other person receiving
money on behalf of, or for account of the people of this State, or
of any department of the government of this State, or of any bu-
reau or fund created by law and in which the people of this State
are directly or indirectly interested, or for or on account of any city,
county, village or town, who

1. Appropriates to his own use, or to the use of any person not
.entitled thereto, without authority of law, any money so received by
him as such officer, clerk or deputy, or otherwise ; or

2. Knowingly keeps any false account, or makes any false entry
or erasure in any account of. or relating to. any money so received
by him ; or

3. Fraudulently alters, falsifies, conceals, destroys or obliterates
any such account ; or

4. Willfully omits or refuses to pay over to the people of this
State or their officer or agent authorized by law to receive the same,



2 Supervisors' Maitual.

or to such city, village, county or town, or the proper officer or au-
thority empowered to demand and receive the same, any money re-
ceived by him as snch officer when it is his duty, imposed by law, to
pay over, or account for, the same;

Is guilty of felony.

Id., 8 470. See, also, id., § 528.

Other Violations of Law. — An officer or other per-
son mentioned in the last section, who willfully disobeys any provis-
ion of law regulating his official conduct, in cases other than those
specified in that section, is guilty of a misdemeanor, punishable by
a fine not exceeding $1,000, or imprisonment not exceeding two ,
years, or both.
Id., §4n.

Certain Contracts may be Declared Void.—

It seems that contracts in violation of section 1 above, may be de-
clared void at the instance of the city, county, village or town inter-
ested in such contracts.

§ S, chap. 57, Laws o£ 1348.

§ 2. Acting in a Public Office -witbout having^
Qualified. — A person who executes any of the functions of a
public office without having taken and duly filed the required oath of
office, or without having executed and duly filed the required security,
is guilty of a misdemeanor ; and in addition to the punishment pre-
scribed therefor, he forfeits his right to the office.

Penal Code, § 42.

Acts of Officer de facto not Affected.— The last

section must not be construed to affect the validity of acts done by
a person exercising the functions of a public office in fact, where
other persons than himself are interested in maintaining the validity
of such acts.

T'enal Code, § 43.

Corrupt Bargain for Appointments, etc.— A

person who asks or receives, or agrees to receive, any gratuity or reward,
or any promise thereof, for appointing another person, or procuring
for another person an appointment to a public office or to a clerk-
ship, deputation, or other subordinate position in such an office, is



The Supbrvisoe. 3

guilty of a misdemeanor. If the person so ofEending is a public of-
ficer, a conviction also forfeits his oflBce.

Penal Code, §53.

§ 3. Taking Fees not Authorized by La^r, for

doing any official act,

Id., §§48,49.

or Taking Fees for Services not Rendered,

except in cases of charges for prospective costs, or fees demandable
in advance in the cases allowed by law, is a misdemeanor.

Id., § 50.

Intrusion into Public Office. — A person who will-
fully intrudes himself into a public office, to which he has not been
duly elected or appointed, or who, having been an executive or ad-
ministrative officer, willfully exercises any of the functions of his
office, after his right so to do has ceased, is guilty of a misdemeanor.

Id., § 56.

Officer refusing to Surrender to Succes-
sor. — A person who, ha^dng been an executive or administrative
officer, wrongfully refuses to surrender the official seal, or any books
or papers, appertaining to his office, upon the demand of his lawful
successor, is guilty of a misdemeanor.
Id., § 51.

§ 4. Neglect of Duty. — A pubhc officer, or person hold-
ing a public trust or employment, upon whom any duty is enjoined
by law, who willfully neglects to perform the duty, is .guilty of a
misdemeanor. This and the preceding section do not apply to cases
of official acts or omissions, the prevention or punishment of which
is otherwise specially provided by statute.

Id., § IIT; and see id., § 164.



CHAPTER II.

ELECTION AND QUALIFICATION.

Sfc. 5. Election. Sec. 17. Tenure of office.

6. What qualifications a supervisor 18. If a supervisor not chosen at

must possess. town meeting, bow proceed.

1. What offices a supervisor may not 19. Vacancies, what are, how filled.

hold. 20. Form of order appointing super-

8. Who are ineligible . visor.

9. Penalty for refusing to serve. 21. Such appointment cannot be ques-

10. Oath of office . tioned collaterally .

11. Form of oath. 22. Resignation of office.

12. Before whom oath to be taken. 23. Supervisor elected to give security .

13. Certificate. 24. Form of bonds or security.

14. Certificate to be filed. 25. Qualifying, what is.

15. Penalty for acting without taking Credentials, what are,

oath.

16. Notice to be given supervisor elected.

Election and Qualification.
§ 5. XHection. — One supervisor shall be chosen at the annual
town meeting in each town,

1 R. S. 808.

by the electors of the town, who are to vote for him by ballot.

Id. 816.

The time for holding town meetings is not uniform throughout the State. It
is generally fixed by the board of supervisors, by resolution, so that the town
meetings of every town in the same county shall be held on the same day.

§ 15, chap. 389, Laws of 1839; 1 R. S. 815. See post, " Town Meetings."

After being so fixed, it cannot be changed for three successive years.

Id.

In Kings county it was attempted to change the time for electing supervisors
and other officers to the general election day in the fall. Some doubts exist as to
whether such change was properly made or is valid.

People, ex rel. Smith, v. Schiellein, 95 N. Y. 124.

Each ward in a city usually has one supervisor also, but the counties of New
York and Kings act under special laws, and the general statement above does not
apply to them.

§ 6. Wbat Qualifications a Supervisor must
Possess. — No person is eligible to the office unless he is an
elector of the town for which he is chosen.

1 E. S. 817.

An elector must be a male citizen of the age of twenty-one years.
He must have been a citizen for ten days, and an inhabitant of this
State one year, next preceding an election, and for the last four



ElECTIOK AKD QuALinCATION. 5

months a resident of the county, and for the last thirty days a resi-
dent of the election district in which he may offer his vote.

Constitution, art. 2, § 1.

§ 7. What Offices a Supervisor may not Hold.

— No supervisor can be appointed or elected to hold the office of
superintendent of the poor in any county.

Chap 852, Laws of 1829, as amended by chap. 80, Laws of 1853; 3 R. S. 1869.

Nor appointed to or hold the office of county treasurer.

1 E. S. 363.

Nor trustee of a school district, nor member of a board of educa-
tion.

2R. S.1163.

Nor commissioner for loaning the moneys of the United States.

1 K. S. 525.

Nor a loan officer appointed under the act of the llth of March,
1792.

Id. 817.

In the above cases a supervisor is ineligible to election or appointment to said
offices. If a supervisor is elected or appointed thereto the election or appoint-
ment is a nullity.

People T. Clute, 50 N. T. 451.

But there is a number of cases in whicli a different question arises, e. g., the
charter of the city of Brooklyn says: " No alderman shall, during the term for
which he is elected, hold any other public office." An alderman was elected to
Congress. It was held that the office of alderman became vacant.

Thomas Kelly v. The Common Council of Brooklyn, 77 N. Y. 503.

So in People v. Nostrand, a highway commissioner was elected sheriff. Section
1, article 10 of the Constitution provides that sheriffs shall hold no otter office.
It was held that the election of the commissioner to be sheriff operated as a resig-
nation of the office of commissioner.

Armstead C. Henry v. James Nostrand, 46 N. Y. 375.

So a Echpol commissioner, if elected supervisor, vacates his office as commis-
sioner.

2R. S.1144.
Illustrations of this principle may be found in

People T. Carrlque, 2 Hill, 93; Tan Orsdall v. Hazard, 3 Hill, 243-249; People v.
Board of Police, etc., 35 Barb. 535-540, 541-553; Angell & Ames on Corp. 443;
People V. Conklm, 7 Hun, 188-194; James Ryan v. Andrew H. Green, 58 N. Y.
295-304.

As boards of supervisors have jurisdiction to decide cases of contested member-
ship, care must be used In examining the statute claimed to render a contestant
eligible or ineligible. The above decisions will assist in a proper determination
of the question.

§ 8. Who are Ineligri^^®* — The loan commissioners
above mentioned are not eligible to the office of supervisor.

1 R. S. 525, 817.



6 SupEKVisoKs' Manual.

Nor a railroad commissioner of a town.

Chap. 720, Laws of 1873 ; 1 R. S. 879.
In some towns, by special statutes, the office of railroad commissioner is
abolished, and their duties devolve upon the supervisors of such towns. These
acts being local are omitted. By chap. 402, Laws of 1889, every town is author-
ized to transfer the powers and duties of the railroad commissioners to the su-
pervisor by a resolution passed and adopted by a majority vote of all persons
voting at the annual town meeting or at a special town meeting duly called for
such purpose.

§ 9. Penalty for Refusing to Serve.— If any per-
son chosen or appointed supervisor shall refuse to serve, he shall for-
feit to the town the sum of $50.

IR. S. 819, §25.

If any person, so chosen or appointed, shall not take and subscribe
the oath of office, and cause the certificate mentioned below to be
filed as required, such neglect shall be deemed a refusal to serve.

' Id. 818, §16.

§ 10. Oatll of Office. — Before entering upon the duties of
his office, and within ten days after he shall be notified of his elec-
tion or appointment, every person chosen or appointed shall take
and subscribe the oath of office.

Id. 817.
When notice to be given, see post, % 16.

§ 11. Form of Oatb. — The following oath will comply
with the provisions of the law :

STATE OF NEW YORK, )

County of Oneida,
Town of Tkknton,

I, Thomas J. Lewis, of the town of Trenton, in said county, having been elected
supervisor of said town, do solemnly swear (or affirm) that I will support the Con-
stitution of the United States and the Constitution of the State of New York, and
that I will faithfully discharge the duties of the office of supervisor of said town,
according to the best of my ability.

And I do further solemnly swear (or affirm) that I have not directly or indirectly
paid, offered or promised to pay, contributed, or offered or promised to contribute
any money or other valuable thing as a consideration or reward for the giving or
withholding a vote at the election at which I was elected to said office, and have
not made any promise to influence the giving or withholding any such vote.

THOMAS J. LEWIS.
Subscribed and sworn to before me, ]
this 6th day of March, 1886.

EOBEKT PrICHAKD,

Justice of the Peace.

CERTIFICATE OF JUSTICE.



Online LibraryGeorge Crane MorehouseThe supervisors' manual : a practical treatise on the law applicable to the duties of supervisors from the date of their election to the end of their official term; also, the law relative to town bonds, railroad aid bonds, defective roads and bridges, town meetings, assessment and collection of taxe → online text (page 1 of 96)