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 20 of 96)
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were entered in a tabulated statement prepared by that committee
for the final adoption of the board as their determination of the re-
sult of the canvass. Held, that the inspectors were not possessed of

Elections. 179

power or jurisdiction to make this change in the statement, and
that the second statement was wholly invalid as an efficient and
legal change of their first determination and statement.

That a proper case was presented for the aid of the court in ju-
dicially investigating the true nature of this second statement.

That a mandamus should issue directing that the board of can-
vassers should not canvass the returns as stated in this irregular
paper, and that it should substitute the return filed in the county
clerk's office for the said irregular return, and use the same in its
further proceedings as the genuine return.

People T. County Board of Canvassers of Albany Co., 46 Hun, 390.

The remedy by writ of mcmdamus may only be resorted to where
a clear legal right is made to appear, and there is no proper adequate
or legal means to obtain it.

When asked against public officers to compel the performance of
an alleged public duty, the granting or refusing of the writ is some-
what a matter of discretion.

The relators, claiming to represent the united labor party of the
city of New York, which party, they allege, polled more than fifty
thousand votes at "the next preceding election," on proof that the
board of police had refused to appoint inspectors of election of the
political faith and opinion of that party, as required by the amend-
ment of 1887 (chap. 490, Laws of 1887), of the consolidation act,
applied for a peremptory writ of mandamus to compel such ap-
pointment, which was denied. The record, on appeal to this court,
showed that two other organizations claimed to be the sole and
proper representatives of the voters who deposited the votes in ques-
tion, and that they were entitled to the additional inspectors. Held,
that the writ was properly denied ; that in the exercise of a legal
and proper discretion, upon being satisfied from the record that there
was an honest dispute as to material facts which should be deter-
mined, the court was justified in refusing a peremptory writ, al-
though the issues were in a strict and technical construction of the
papers inartificially or loosely made up.

An alternative writ was granted, to which two of the four mem-
bers of the board made a return, the other two refusing to join
therein. Held, that the return was properly received and enter-
tained; that the court would not be driven into issuing a peremp-
tory writ to guide the conduct of public officers charged with a
public duty upon any narrow construction of a return to its alterna^

180 SuPEKVisoEs' Manual.

tive writ, where, from all the papers, it is seen that there is a sub-
stantial and material issue of fact.

People, exrel., v. Board of Police, 107 N. T. 235.

At a charter election for city officers for the city of Binghamton,
held on the 14th day of February, 1888, the board of inspectors of
election in the second district of the fifth ward, in said city, con-
sisted of the appellants, together with one Myron Kaught. Upon
the closing of the polls the ward ballot-box, in which the ballots for
aldermen were deposited, was opened before the box containing the
votes cast for the city ticket was opened. The ballots were counted,
and being found to exceed by one the number of votes shown by the
poll-list to have been cast for the office of alderman, were returned
to the box and one ballot was drawn therefrom. On opening the
city box five ward ballots were found therein, which were, by the
appellants, against the objection of Myron Raught, placed in the
ward box, together with the one ballot which had been already drawn
therefrom ; six ballots were then drawn therefrom, to make the same
conform with the poll-list, and the ballots remaining in the box were
again counted. The appellants, two of the said inspectors, there-
upon made a return of the said ward election certified to by them,
to the city clerk, showing the result of the second counting ; their
associate, Kaught, refusing to join in making the same, insisting that
such return was illegal and in violation of the provisions of the
election law. This action of the inspectors changed the result of
the election.

Upon an appeal from an order of the Special Term granting a per-
emptory mandamus, directed to the appellants and Myron Eaught,
commanding the said board of inspectors to forthwith reassemble, meet
and make, sign and deliver to the city clerk of Binghamton a full, true
and correct return of the votes cast for the several candidates for alder-
men in said second district, and that, in making such return, they do
not take into account or include any action, or the result of any ac-
tion, taken by them, or any of them, in regard to the ward ballot-
box, or the ballots therein contained or placed, after they had opened
the,city ballot-box of said second district. Held, that as the board of
inspectors, upon making and filing its certificate, had fully discharged
its official duty, and thereafter become functus officio as a board, a
writ directed to them would be of no effect, and they would not be
compelled by a mandamus to reconvene and recanvass the ballots.

That as to the provisions contained in the writ commanding the
board "not to take into account or include any action, or the result

Elections. 181

of any action, taken by them, or any of them, in regard to the ward
ballot-box, or the ballots therein contained or placed after they had
opened the city ballot-box," the court found no authority for the ex-
ercise of such a power, and was not willing to concede its existence,
as it would establish a dangerous precedent in regard to a matter of
the utmost importance to the people, and, in a government like ours,
one fraught with incalculable mischief.

SemUe, that the remedy of the relator was by quo warranto after
the certificate of election had been given to his adversary and the
office was in his possession.

People, ex rel,, y. Keardon, 49 Hud, 425.

§ 256. Practice to be tlie Same as in Man-
damus. — The practice in such proceedings in mandamus shall
be the same as in cases of mandamus against a board of supervisors,
and for the purpose of service of papers and other proceedings, the
board of county canvassers, as organized and existing at the time of
making the original canvass, shall be deemed a continuing board.
Id., s 2.

Broome County— Instructions for. — At a meet-
ing of the board of county canvassers of Broome county, held at
the office of the county clerk, November 10, 1885, the following
preamble and resolution were unanimously adopted :

" "Wheeeas, It appearing to this board by the returns of the sev-
eral election districts that a great majority of them are incorrect, by
reason of a misconstruction of the law relative to pasting and re-
■turning ballots upon the returns, causing great inconvenience and
delay in canvassing, and incurring great expense to the county;

Sesol/oed, That the county clerk, as secretary of this board, be and
he hereby is authorized and directed to formulate and publish for
distribution annually to the inspectors of election of the several elec-
tion districts of the several towns and wards of this county a pam-
phlet of instruction setting forth and explaining the method and
manner of returning and pasting tickets upon returns, in conformity
with the law as construed by this board."

In compliance therewith I have formulated the follovring instruc-
tions, hoping thereby that the present law, upon which tlie instruc-
tions are based, may be made to appear more plain to those upon
whom devolves the important duty of making election returns.

No portion of the Election Code has so puzzled the inspectors and
clerks of election as that relating to "attaching" ballots to the re-
turns. This seems to be due to the difference of opinion prevailing

182 SuPEEVisoBs' Manual.

in nearly every board of inspectors, as to the meaning of the in-
structions on page 331 of the Code, which read as follows : [" And
so proceed with each kind of regular ballot received."] Had the
codifier used the words " and so proceed with one oi each kind of
all ballots received," it seems to us that the true intention of the law
would have been set forth and been more readily understood, for it
must be borne in mind that all hallots are regular that are not re-
jected as defective. Section 723, at page 327, tells which are de-
fective ballots, therefore the idea that by regular is meant only
straight tickets is erroneous ; a split ticket is regular if not defective.

By a careful reading of section 730, on page 333, of the Code, it
will appear that one of each kind of the regular ballots found to
have been given for the ofi&cers then to be chosen, must be securely
attached to the statement, etc.

Then follows the requirement of the law that " a statement must
then be written, partly on such ballot and partly on the paper to
which it is attached (as illustrated on page 331 of the Code), setting
forth the whole number that were received corresponding with the
one so attached.

Therefore, keeping in mind what regular ballots are wlien we at-
tach one of each kind and write partly on it and partly on the paper
tQ which it is attached, the whole number received like the one at-
tached, we have performed our task. That is to say, if we find fifty
regular ballots of one kind, where the names are all the same upon
it, no matter whether Republican, Democratic or otherwise, we attach
one, and, complying with the law, say, " the whole number like this
received was lifty. " Then finding forty of another kind with names
all the same we attach one of that kind and proceed in the same
manner, writing partly upon it the number received, viz., forty, etc.,
and so continuing with one of each kind where the names are found
to be the same for the respective officers.

In thus doing we have proved the statement made in the written
portion of the returns as to how many votes each candidate received.

It would be erroneous to attach all the split tickets, as supposed by
some ; only one of each kind is required.

Therefore we think, if the following rules are observed, they will
be found of advantage in making proper returns of election :

As the law distinctly says (§ 304, page 117), "The remaining
ballots not so pasted or attached shall be destroyed," etc., the neces-
sity for providing for emergencies is apparent. Therefore :

1st. Early in the day let some one of the inspectors secure of the
tickets of the different parties, if possible, at least three for each
name on it, together with some of the pasters of the several candi-
dates, which will be found useful in making duplicate ballots for the
balance of the returns in case one split of a kind only is found to
have been voted. If pasters cannot be found, duplicate of the bal-
lot voted can and should be made by erasing the name over which
the paster is put and writing the name voted either above or be-
low it.

Elections. 183

2d. The back of each sheet of the printed returns will be found
blank. On this blank space let the ballots for the officers mentioned
in the printed portion of the sheet, if possible, be attached, then at
the bottom of the page upon which the ballots are pasted put the
usual certifl-cate and sign same, for it being part of the returns
should be certified in the same manner as the rest.

Avoid attaching ballots on the extreme back of the return, or in
any manner so that they extend beyond either edge. Such precau-
tions will prevent them being torn off by handHng. The practice
of attaching ballots on the edge or margin of returns should be dis-

The practice of attaching one ballot, and opposite each name
thereon writing the number received, is not correct, and should not
be so returned.

In attaching ballots the following plan may be followed, for in-
stance : The straights of all parties having been separated from the
splits, take :

1st. One of the straight Eepublican, of the box first canvassed,
attach it and write partly on the ballot and partly on the paper the
number of ballots received corresponding therewith, being the whole
number of straight Eepublican ballots. Then,

2d. Take one of each kind of Eepublican split ticket, attach and
say how many of each like that (that is, with the same names upon
it for the same offices) were received; it may b? one or more.
Having thus disposed of one party tickets, proceed in the same man-
ner with the others.

To further illustrate : For instance, you find among the splits ten
of the straight Eepublican tickets, excepting, that ip place of the
first name on the ticket the candidate of an opposite party is pasted,
attach one of that kind, and say, whole number like this is ten ; then
finding, for instance, three Eepublican tickets straight in every par-
ticular excepting that the name of an opposing candidate is pasted
over the second name, paste one of these and say whole number like
it is three ; and so continue with the balance of that ticket, and with
the spKts of other party tickets.

Not forgetting to attach all ballots rejected as defective as re-
quired by law, duplicates being made where necessary.

If but one split appears, as in some instances, by use of the pasters
and tickets procured as above suggested, duplicates for the other re-
turns may easily be made.

It can readily be seen that by a strict compliance with the above
plan of attaching ballots, the county canvassers have before them
the contents of every ballot-box in the county, and can easily prove
by computation the written statement of the return, which to ns
seems to have been the primary object of the law in having the
ballots so attached.

While it is claimed by some that the object of the law in having
tickets so attached is to show the form and style of ballots voted,
and while it may so operate, yet the fact that tickets were required

184 SuPEEvisoBS' Manual.

to be so attached hefore the change in the law requiring tickets to be
of certain prescribed size, color and type, is a su£5cient answer to
such theory.

It will be observed by the law, section 734, page 335, that the
returns delivered to the supervisor and county clerk, respectively,
are to be executed in duplicate, while that for the town or city clerk
should be a certified copy. Section 735.

The returns should be carefully compared to see that all are in
every respect alike. The practice of simply copying the returns
and not carefully comparing them is productive of many errors often
occasioning delay and expense.

The number of votes received is required to be written at length
in the statement. This must be done, but the practice of setting
opposite the number so written, the same in figures, in the column
prepared for them, is a good one, and aids much in computation.

It should not be forgotten that the law requires one of the returns
to be dehvered to the supervisor and another at the county clerk's
office, within twenty-four hours after the closing of the polls.

County Clerk and Secretary Board of Camvaasers.

The author acknowledges his obligation to Mr. Tupper for a copy
of the law as interpreted in his county.




Sbo. 257.















Property liable to taxation. Sbo.

Land, real estate — what is.

Flankroads and turnpike roads.

State lands in Forest Preserre.

Assessment of State lands for local

Real estate of corporations.

Lands sold by the State.

Personal property.

Debts owing to non-residents.

Debts and obligations due or ow-
ing residents of this State.

Taxable personal property of cor-

Property exempt from taxation.

Personal property of ministers of
the gospel.

Property exempt by law from exe-
cution .

Homestead not exempt from tax-
ation .

Agricultural society lands .

Flankroads and turnpikes — toll-

Soldiers' monument associations.

Firemen in incorporated villages.


Warner's Observatory.

Indian reservations.

Light-houses — lands ceded to the
United States.

Owner of stock.

New York city bonds.

Bonds, mortgages, etc., for collec-

Deposits in savings banks.

Co-operative or assessment life in-
surance companies.

Registered vessels.

Gas-light companies.

United States securities.

Town, city, village and county

Where property to be assessed.

Lands of corporations.

Definition of land.

Occupied lands.

Divided by town or county line.

How if boundary of town, city,
etc., passes through dwelling-
house or building.

Occupancy defined.

TJnocccopied lands.

When the line between two towns,
wards or counties divides a farm.

Where personal property to be as-

Personal property belonging to a
resident of the State, in the hands
of an agent.


300. Committee of the estate of a lunatic.

301. Where a person has two or more


302. Personal estate of corporations.
^03, Duties of the assessors.

304. Assessment districts.

305. Inquiry to be made.

306. Time when an assessment is made.

307. Assessment-roll — residents.

308. Trustee, guardian, etc.

309. As to corporations.

310. Assessment-roll — non-residents.

311 . Duty of assessors, as to rents.

312. Duty of board of supervisors.

313. Debts owing for the purchase of

real estate.

314. Agents of non-resident creditors to

report to county treasurer.

315. Penalty for not making report.

316. Abstract to be sent to assessors.

317. Name and amount due to be entered

on assessment-roll.

318. Unpaid taxes — how collected.

319 . Warrants therefor — how made out.

320. Lien of warrant.

321. Sheriff — how proceeded against

for neglect to return warrant.

322. Proceedings when warrant returned


323. Expenses of treasurer and assessors

— how paid.

324. Yaluation of real and personal


325. Omitted lands.

326. Assessment-roll — deposit for in-

spection — notice thereof.

327. Contents of notice.

328. Review day — reduction of valuation.

329. If assessors neglect to meet on re-

view day, boarA of supervisors
may review and correct assess-

380. Assessment- roll — when to be com-
pleted and delivered to the su-
pervisor — oath to, by assessor.

S31, Bolls to be delivered to town clerk,

332. Boll to be delivered to supervisor.

333. Neglect of assessors.

334. Duties of the supervisors after de-

livery of the roll.
835. Assessment-roll — ^ form of.

336. Tax on land vacant by removal of


337. Duties of boards of supervisors as

to assessment-rolls — committee
on form of assessment-rolls.

338. Form of report.

S39-342. Committee on erroneous assess-

186 Supervisors' Manual.

Sec. 343. Correcting mistakes, manifest Sec. 364. Suits for neglect to pay.

errors, etc. 865. Statement of arrears.

844. Form of report. 366. Rejected taxes.

345. Resolution confirming alterations 367. Taxes on lands imperfectly de-

in the rolls. scribed.

346. As to State taxes. 368. Transcript to be delivered to super-

847. Refunding taxes. visor.

848. Overcharges. 369. Description of land to be made.
348}^. Overcliarges to be recharged to 370. If not made, tax assessed upon town.

county. 371. How assessed in case of division of

349. Town to be liable therefor. town .

349}^. Tax to be extended. 372. Tax — when canceled.

350. Collectors fees not to be added. 373. Account to be transmitted to super-
851. Form of assessment-roll with tax visors.

extended. 374. Comptroller may require correct re-
352-3. Assessment of lands — where one turns.

person owns two or more sepa- 375. Duty of supervisors thereupon.

rate, distinct and discounected 376. Where sales are invalid — tax to be

pieces or parcels thereof. re-assessed.

354. Delivery to collector. 377. Purchase of land for benefit of
855. Warrant to be annexed — its con- county.

tents. 878. Certificate of sale of lands bid in.

356. Cities. 379. Deed to and vesting of title in su-

857 . Account to be transmitted to county pervisors.

treasurer. 380. Rejected taxes.

858 . Where collector neglects to qualify. 381 . Proceedings by supervisors in case

859. Where collector refuses to serve. collector neglects to pay over
859X. Collector's warrant — town col- money.

lector. 382. Certificate of unpaid taxes.

360. Tax for road scraper, road machine, 383. Apportionment of State tax.

etc. — noxious weeds. 384. Lands imperfectly described.

361. Board of supervisors may extend 885. Arrears — how paid.

time. 386. Accounts with county treasurer.

362. Losses by certain officers — on 387. Suits for neglect to pay.

what to be charged. 387X- Unpaid sonool taxes.

863. When supervisors to furnish map. 387%. Hignway labor not worked.

In the preparation of this chapter, the author acknowledges his
obligations to the excellent work, " System of Taxation," by Julien
T. Davies, Esq.

Po-wer of the Legislature to Impose Taxes,
to Determine Taxable Persons, Property, etc.

— The rule seems to be that except as restrained by the Constitution
of the United States and the Constitution of the State, the power of
the legislature is unlimited.

The following cases show the decisions :

The legislature has power to determine the amount of a tax for a
local im.'pro'oement, and the property to be assessed therefor, and its
action in these respects is conclusive. It may impose one portion
of the cost upon one designated district and the balance upon another.

Spencer v. Merchant, 100 N. Y. 585.

It is the settled law of this State that the power of taxation and
the apportionment of taxation are vested in the legislature, and are
identical and inseparable ; that there is no constitutional restraint
upon the exercise of that power, and that it includes the right and
power of determining what portion of a pubhc burden shall be borne
by any individual.

Litchfield v. Vernon, 41 K. T. 123, 187, and cases cited.

Of the Assessment and Collboxion of Taxes. 187

It is within the power of the legislature to impose a tax upon a
locality for any purpose deemed by it proper, and this power is not
restricted by the Constitution.

Id.; People V. Brooklyn, i id. 42T; Horn v. Town of New Lots, 83 id. 100; People
V. Equitable Trust Co., 96 id. 387; Thomas v. Leland, 24 W. 65; Pumpelly v.Vil-

io^^j" n9f ^®S°' ** ^""^ ^^^' ^^°P'« "• ^'"gg- ^8 N. T. 405; In re Van Antwerp,
OD id. 2ol .

Its power, at least as regards the purposes for which it is to be
exercised, is not without limit, and it is within the power of the
courts to determine whether, in a particular case, the extreme
boundary of legislative power has been reached and passed; it must
be made quite clear, however, that the legislature has erred before
the court can interfere with its action.

Weismerv. Village of Douglass, 64 N. Y. 91.

It has no power to authorize a municipal corporation to issue its
obligations for the purpose of raising money wherewith to pay a
subscription of said corporation to the capital stock of a private
corporation, and to provide for payment of such obligation by taxa-
tion ; it has not power to tax for private purposes only.


" The power of taxation " (of the legislature) " must be exercised
for a ptiblic purpose.

Spencer v. Merchant, 100 N. Y. 585-8 ; Cole v. La Grange, 113 U. S. 1.

The power of apportionment is included in the power to impose
taxes, and is vested in the legislature, and in the absence of any con-
stitutional restrictions the exercise of it cannot be reviewed by the

Gordon v. Comes, 47 N. Y. 608.

A tax imposed on a particular locality to aid in a public purpose,
e. g., a normal school * * * inequality in the apportionment of
the expenses, with reference to the benefits resulting respectively to
the State and to the locality, cannot be alleged for the purpose of
impugning the validity of the law.

The legislature cannot provide for a local assessment without no-
tice to those affected, and the right to a hearing and an opportunity
to be heard. It cannot dispense with all notices, but it may pre-

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 20 of 96)