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 3 of 96)
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sioner by such statute, and all securities and evidences of debt transferred by
said commissioners to said supervisor as aforesaid, which by the terms thereof are
payable to the said railroad commissioners, shall be paid when due to said super-
visor, upon his indorsement as supervisor, in the same manner and to the same
effect as if indorsed by said railroad commissioners.

Penalty of Supervisor's Bond, when and how Fixed. — OfficiaZ Bond Hereafter
Given hy Supervisor to Include this Act.

§ 4. The board of town auditors shall meet for the purpose of fixing the pen.'
alty of the bond of said supervisor, as provided In the second section of this act,
at the office of the town clerk within ten days after the town meeting at which
the resolution hereinbefore provided for was passed, upon a day to be fixed by
said town clerk, whereof each member of said board shall be notified by said
clerk either personally or by mail, at least three days before the time fixed for
said meeting. In fixing the penalty of the bond to be given by said supervisor
under the provisions of section two of this act, said board of town auditors shall
take into consideration the amount of moneys likely to come into the hands of
such supervisor by reason of the additional duties imposed upon him by this act.
Hereafter, in a town in which the duties of railroad commissioner have been
transferred to the supervisor, the general bond given by such officer, conditioned
to safely hold and pay over all moneys coming into his hands and belonging to
said town, shall be deemed to include and be a security for the payment over of
all moneys coming into the hands of such supervisor under and by reason of the
provisions of this act.

Compensation of Supervisor.

§ 5. For the performance of the additional duties devolved upon him under the
provisions of this act, such supervisor shall be entitled to a reasonable compensa-
tion, to be fixed by the board of town auditors of such town.

§ 6. This act shall take effect immediately.

By chapter 410 of 1874, when the town shall have voted to buy
and cancel its bonds, by issuing and selling new bonds, the super
visor is to give security for double the amount received by him f roir-
the county treasurer, derived from the sale of the new bonds.



Election- and Qualificatioit. 17

The law in relation thereto will be found in chapter , post, and
is only applicable to towns having a bonded indebtedness.

The sureties to the above bonds will be liable only for dereliction in duty dur-
ing the term for which the supervisor was chosen at the time the obligation was
entered into, and not for those which happen under his reappointment.

Kingston Mut, Ins. Co. v. Clark, 33 Barb. 196.

Sureties on a supervisor's bond are only liable for moneys which their principal
is authorized and bound by law to receive in his oflBcial capacity, and not for that
which he receives voluntarily, or which the board of supervisors without authority
order paid to him. So where a town collector, in pursuance of his warrant, paid
to the supervisor moneys collected for support of the poor and repair of highways,
held, that the sureties were not liable for their principal's appropriation of those
moneys, because it was the duty of the board to require them to be paid directly
to the overseers of the poor and the commissioners of highways, respectively.

People V. Pennock, 60 N. Y. 421.

A bond to " H., town clerk," to be " paid to said town clerk or his successors in
oflSce," held sufficient,

Edmund G. Sutherland v. James Carr, 85 N. Y. 105.

and can be sued in the name of the supervisor of the town.

Id.

As to what funds he receives " as supervisor," officially, see cases cited in notes
to this section. <

The act above cited, chapter 534, Laws of 1866, speaks only of supervisory
"elected," and makes no mention of those "appointed." It is the safer practice,
to require a bond of the one appointed, s well as the one elected.

This bond would seem to secure the town for all moneys received by the super-
visor, " as supervisor," and to supersede the special bond for "local school mon-
eys " required by chapter 78, Laws of 1866.

People v. Ebenezer Pennock, 60 N. Y. 421-424: Elijah P. Taylor v. Emory W.
Gurnee, 26 Hun, 624; Charles A. Hawkins v. Mayor of New York City, 64 N. Y.
18-21 ; Edmund G. Sutherland v. James Carr, 85 id. 105.

The first act is general, is later in its enactment and covers the whole ground.

Id.; Charles Heckmann v. John M. Pinkney, 81 N. Y. 211 ; People v. City of Brook-
lyn, 69 id. 605; Dexter & Limerick Plankroad Co. v. Alden, 16 Barb. 15.

Bonds given by a public officer for the faithful performance of his duties, ex-
tend to and include all such duties as may be added to the office or imposed upon
the officer as such.

Board of Education v. Quick, 99 X. Y. 138 ; Mayor t. Kelly, 98 id. 467 ; Board of
Supervisors v. Clark, 92 id. 391.

For reference, however, the latter act is inserted.

In addition to the bond or bonds that the supervisors of the several towns of
this State are now by law required to execute, the supervisor of every town in this
State, which has a local school fund belonging to said town, shall, before entering
upon the duties of his office, execute a bond with two or more sufficient sureties
in double the amount of all school moneys, funds or securities belonging to such
town, and which by law is under the control, or in the custody of the supervisor
of such town; such bond to be in accordance with the requirements of section 30
of chapter 179, Laws of 1856, and subject to all of the provisions thereof, except
as herein specified.

Laws of 1866, chap. 78.

Chapter 179, Laws 1856, has been superseded by chapter 555 of 1864, and the
latter act provides for the duties of the supervisor relating to the "local school

3



18 SUPEEVISOES' Makual.

fund " (or " gospel and school lots funds "), and requires him to give a bond to
the county treasurer, not only for moneys " apportioned" by the school commis-
sioners, but for " ail other gcJiool moneys that may come into his hands from any
other source."

It would seem that the bond to the county treasurer and the general bond men-
tioned in the first subdivision of section 33, supra, vpould be suflBcient to meet the
requirements of the statutes, without giving the one mentioned in chapter 78,
Laws of 1866.

§ 24. Form of Bonds or Security Required.

See ante, §23, "first."

BOND OF SUPERVISOR — (General).

Know all men by these presents, that we, Charles L. Marshall, as principal, and
William J. Millard and Herbert C. Sholes, as sureties, all of the town of Paris,
county of Oneida, and State of New York, are held and firmly bound unto John
Doe, as town clerk of said town, in the penal sum of $10,000, to be paid to the
said Doe, as town clerk aforesaid, or to his successor in office. For which pay-
ment well and truly to be made, we bind ourselves, our heirs, executors and ad-
ministrators, jointly and severally, firmly by these presents.
Witness our hands and seals this 12th day of March, 1886.
Whereas the above bounden, Charles L. Marshall, was, on the 5th day of March,
1886, duly elected supervisor of the town of Paris, in said county:* Now, there-
fore, the condition of this bond is such, that if the said Marshall shall faithfully
discharge his duties as such supervisor, and shall well and truly keep and ac-
count for and pay over all moneys and property belonging to his said town and
coming into his hands, as such supervisor, without fraud or delay, then this obli-
gation to be void, otherwise to be in full force and virtue.

CHARLES L. MARSHALL, [l. s.

WILLIAM J. MILLARD, l. b.

HERBERT C. SHOLES. [l. b.

ACKNOWLEDGMENT

STATE OF NEW YORK, ) .
CotTNTT OF Oneida, )

On this 12th day of March, 1886, before me, the subscriber, personally appeared
Charles L. Marshall, William J. Millard and Herbert C. Sholes, to me personally
known to be the same persons described in and who executed the above instru-
ment and severally acknowledged that they executed the same.

M. M. JONES,

JUBTICB OF THE PEACE.

JUSTIFICATION.

STATE OF NEW YORK, )
CotTTTTY OP Oneida, ^ *' ■ ■

William J. Millard and Herbert C. Sholes, the sureties named in the foregoing
bond, being severally duly sworn, doth each for himself say, that he is a resident
and freeholder (or householder) within this State, and worth $10,000 over and
above all his debts and liabilities, which he owes or has incurred, and exclusive
of property exempt by law from levy and sale under an execution.

Signed,

WILLIAM J. MILLARD

HERBERT C. SHOLES. '

Severally sworn and subscribed before "

me, this 12th day of March, 1886.

M. M. Jones,

Justice of the Peace.



Election and Qualification. 19

approval.

We hereby approve the foregoing (or within) bond, as to its form and manner
of execution and the sufficiency of the sureties therein.
Dated March 13, 1886.

A. B.,
CD.,
E. F.,
G. H.,

Board of Town Auditors.

The above bond, when completed, is to be filed with the town clerk.

BOND FOE SCHOOL MONEYS.
(See ante, § 23, " Second.")

Know all men by these presents, that we, Andrew L. Williams, supervisor of
the town of Kirkland, in the county of Oneida, and State of New York, as prin-
cipal, and George Beach and Jacob F. Getman, of the same town, as sureties,
are held and firmly bound unto John E. Edwards, as treasurer of the county of
Oneida, in the penalty of five thousand dollars, to be paid to the said Edwards,
as treasurer of said county, his successor in office, attorney or assigns; to which
payment, well and truly to be made, we bind ourselves, jointly and severally, by
these presents. Sealed with our seals and dated this 10th day of June, 1886.

The condition of this obligation is such that if the above bounden Andrew L.
Williams, as supervisor aforesaid, shall safely keep, faithfully disburse and justly
account for and pay over all the school moneys apportioned to said town, and all
other school moneys that may come into his hands, as such supervisor, from any
other source, then this obligation to be void; otherwise to remain in full force
and virtue.

ANDREW L. WILLIAMS,
GEOEGE BEACH,
JACOB P. GETMAN.

[Add acknowledgment and justification, as in preceding form.]
The county treasurer approves the bond, if satisfactory, as follows:

I hereby approve the foregoing (or within) bond as to its form and manner of
execution and the sufficiency of the sureties therein.
Dated June 11, 1886.

JOHN R. EDWARDS,

THBASTrREB OF ONBIDA COUKTY.

This bond is filed with the county treasurer, who should give the supervisor
filing the same a certificate thereof.

Chap. 555, Laws of 1864, § 6, subd. t.

From the preceding forms any other bond required can be adapted by a little ♦
care.

§ 25. Qualifying', Trhat is.— To qualify for an office ig
to take and subscribe the oath of office.

People T. James H. McKinney, 52 N. Y. 374-880.

Generally speaking, after an officer has taken and subscribed his oath of office,
filed the same and furnished the security required, he is " qualified" to perform
the duties of the office.

See decisions under § 19, ante.

Credentials, "Wliat are. — The credentials of an officer's
right to office are the certificate of election from the proper officer,

People, ex r<!i. Watkins, v. Perley, 80 N. Y. 624.



EL. S.
L. 8.
L. S.



20 Supervisors' Manual.

The statement of the result of the canvass of votes given at a
town meeting, held for the election of town officers, entered by the
clerk of the meeting in the minutes of the proceedings kept by him
as required by law, is intended by the statute as the certificate and
evidence of election.

Case V. Campbell, 16 Abb. N. C. 270-1; Inre Baker, 11 Hovr. Pr. 418.

The certificate of a town clerk, showing that particular persons
were declared duly elected inspectors of election and that no others
have been elected in their stead ; and that no appointment of any
others has been filed in his office, is not evidence for any purpose.

People T. Cook, 14 Barb. 259.

A certificate of tlie appointment of persons as inspectors of elec-
tion, proved by the town clerk to be in the handwriting of his
predecessor in office and to have been taken from the files of the
town clerk's office and brought to court and which paper is signed
by the clerk, supervisor and a justice of the town and filed on the
back in the former clerk's handwriting, is the best evidence of the
appointment of such inspector and is sufficiently proved.
Id.

Whether such certificate is filed on the day of election or after-
ward, is immaterial.
Id.

The fact that a board of canvassers proceed for a time in receiving
votes without clerks, one of the inspectors acting as such in conse-
quence of their inability to procure suitable clerks, will not invali-
date the election.

Id.

Nor will the fact that during part of the time there were four in-
spectors acting at the polls and that the returns are signed by four,
although an irregularity, aflEect the election.

Id. See decisioDS, §§ 246-256, pott.



CHAPTER III.



THE SUPBRVISOK.



Skc. 26. His duties and powers . Sec. 80.

27. Classification thereof. 81.

28. Demand and receive books, papers, 82.

and moneys.

29. Delivery refused. 83.
SO. To whom application is made.

31. Form for application.

32. Order to show cause on application. 84.

33. AflSdavit of delivery. 85.

34. Order thereupon.

35. Warrant of arrest.

36. Search warrant.

37. To demand from his predecessor 86.

all school and town moneys. 87.

38. Keeping accounts.

39. Form of account. 88.

40. Certificate by town auditors.

41. When to account.

42. Bonds of other town officers. 89.

43. Commissioners of highways. 90.

44. Collector.

I 45. Constables. 91.

46. Justices of the peace. 92.

47. Excise commissioners.

48. Overseers of the poor.

49. Form of bonds of other town 93.

officers.

50. Bond of collector. 94.

51. Bond of constables. 95.

52. Bond of justice of the peace.

53. Bond of excise commissioners. 96.

54. Bond of overseer of the poor.

54a. Bond of railroad commissioners. 97.

55. Filing papers, bonds, etc. 98.
66. Reports by supervisor.

57. In relation to rejected taxes.

58. In relation to highway commis- 99.

sioner's statement.

59. Report as to town debt. 100.

60. List of collectors and assessors.

61. Sheep injured by dogs. 101.

62. List of grand jurors.

63 . Report to superintendent.

64. Report paupers. 102.

65. To make a return of moneys in 103.

their'hands. 104.

66. State boundary monuments. 105.

67. Account of school moneys. 106.

68. To the comptroller.

69. Suits against the town. 107.

70. As to town debt. 108.

71. As to common school districts. 109.

72. Supervisor' s duties in relation to. 110.

73. When town divided. 111.

74. Moneys in the bands of over- 112.

seers of the poor. 113.

75. Disbursing of and accounts for

school money. 114.

76 . Alteration of school districts.

77. Form of order forming a dis- 115.

trict.

78. Form of consent by trustee.^ 116.

79. Form of notice by commis-



Form of decision thereupon.
On the dissolution of a district.
Equalizing taxes on lands in

several towns.
Annual meeting in neighbor-
hood.
Annual district meeting .
Terms of officers.
Trustees of new school dis-
tricts, etc.
Trustees to make annual re-
ports, etc.
Employment of schoolteachers.
District taxes, how appor-
tioned.
Supervisor may consent to re-
newal of warrant for school
tax.
Form of renewal.
Certain duties and powers of

the supervisors abolished.
Duty of town clerk.
Supervisor to sue for penalties
imposed by laws relating to
schools.
Certificate of apportionment of

school moneys.
Duty of supervisor.
Who may vote at school meet-
ing.
Supervisor to call district

school meeting when.
Notice to be given thereof.
Apportionment of valuation of
railroads among school dis-
tricts.
Women eligible to vote at

school meeting.
Cnder compulsory education

act.
Supervisor may receive real
estate or personal estate in
trust.
In respect to dogs.
The Ontario (ibunty act.
The Richmond county act.
Deaf-mutes and blind.
Form for the admission of county

pupils.
As to the blind.
To cause survey to be made.
Survey of non-resident lands.
May administer oaths.
Surplus moneys.
To receive moneys for strays.
When to act as guardian, in bind-
ing out orphan children.
As to buying and canceling town

bonds.
As to payment of bonded debt to

railroads.
Sale of stock and bonds of bank-
rupt railroads.



23 SupEKVisoKs' Manual.

Sec. 117. To supply vacancy in office of au- Sbc. 146. To appoint collector.

(Jitor. 147. Yacanciea in board of excise.

118. Attend board of supervisors. 148. Certain towns and cities author-

119. Duties under the drainage act. ized to sell railroad stock.

120. Summary investigation of unlaw- 149-150. Duty in connection with jus-

ful expenditures. tices and town clerk.

121. When supervisor to pay judgment. 151. To suppljr vacancies in inspectors

122. Sue for penalties. of election,

123. Supervisor may institute supple- 152. Duties as board of health.

mentary proceedings for tax. 153. Duties as board of town auditors.

124. Form of affidavit therefor. 154. When to act as inspector at a vil-
124a. Order thereon. lage election.

125. Duties in connection with town 155. To make jury lists .

officers. 156. In cities.

Powers of a majority of such offi- 157. Who are disqualified from

cers. serving as jurors.

126-128. Duties on the division of a town. 158. Who are entitled to exemp-

129. Personal property, how ap- tion from jury duty.

portioned. 159. Who are qualified to serve as

130. Meeting under this title, how jurors.

called. 160. Duplicate lists of jurors se-

131. Cemeteries excepted. lected to be filed.

132. Debts to be apportioned. 161. Form of list.

133. Gospel and school lots. 162. Jurors to serve three years.

134. Duty in case of fire in woods. 163. Duties as board of health.
135-140. Duties in connection with 164. Formation of water-works oom-

highway commissioner. ' pany.

141. Powers and duties as water com- 165. In relation to roads and bridges.

missioner. 166. Form for consent.

142. To control town house. 167. Meeting to determine what amount

143. To lease public buildings to grand shall oe borrowed.

army post. May purchase stone crusher.

144. To appoint town sealer. Duty as to peach and other trees

145. To appoint firemen. diseased.

§ 26. Duties and POTrers. — After a supervisor has duly
qualified he is ready to proceed with the duties of his office.

He derives his right to act as a public officer from statutes enacted
by the legislature, which expressly, or by necessary implication,
limit, define and prescribe what he may lawfully do.

Within such limits so conferred his jurisdiction is confined.

If he attempts to go beyond this jurisdiction he does so at his
peril, and becomes personally responsible therefor.

§ 27. Classification. — The jurisdiction of a supervisor
extends to these cases :

"First. As a town officer.

Second. As a member of the board of county canvassers.

Third. As a county officer, or sitting as a member of the board of
supervisors.

The first class is naturally divided into three subdivisions, viz.:

1. Those that are to be performed by the supervisor only.

2. Those that are to be performed by him in connection with
other town officers.

3. Certain general duties relating to such matters as the schools
dogs, etc., which belong to both of these subdivisions.

For the powers of a majority of such, officers when acting together, see § 125,
post.



The Supervtsok. 33



HIS DUTIES AS A TOWN OFFICER.

1. To he perfortned iy the sujpe^'visor.

§ 28. To Demand and Receive Books, Papers
and Moneys from his Predecessor.— After the

bond of the supervisor has been approved by the town auditors, as
prescribed by section 23, ante, he mnst demand from his predecessor
all the records, books, papers and the balance of moneys remaining
in his hands, as ascertained by the auditors of town accounts. If he
desires, it is the duty of his predecessor to make oath that the same
are all the records, etc., in his hands. The following is a statement
of the law :

At the expiration of the term of office of a supervisor, or when
he resigns, it is the duty of his successor, immediately after he shall
have entered upon his duties, to demand of his predecessor all the
records, books and papers under his control belonging to such office,
and it is the duty of such supervisor to deliver, when so requested,
upon oath, to his successor, all such books and papers, and to pay
over the balance of moneys remaining in his hands as ascertained by
the auditors of town accounts.

1 R. S. 842, §§5 and 7; Victory v. Blood, 25 Hun, 515.

The oath may be administered by the officer to whom such de-
livery is made.
Id.

In case of the death of such supervisor he shall make such demand
of the executors or administrators of such deceased officer ; it is
made the duty of his executors or administrators to make such de-
livery upon like oath.

Id.; id. 376.

If any person appointed or elected to any office shall die or his of-
fice shall in any way become vacant, and any books or papers belong-
ing or appertaining to such office shall come to the hands of any
person, his successor may in like manner demand the same of such
person, and if they* are withheld, like proceedings may be had as in the
other cases mentioned above, and sections 29 to 36, post, and such
person may in Hke manner make the oath mentioned in section 33,
post.

1 R. S. 876, S 56.



34 Supervisors' Manual.

On receiving such records, etc., he should give his predecessor a
receipt, which may be in the following form :

Received of F. A. Willard, late supervisor of the town of Boonville, three
hundred dollars and five cents ($300.05), the balance of town moneys remaining
in his hands.

Also vouchers No. to No. , both inclusive, in support of his charges

for disbursements bearing the same number in his cash account, and amounting
in the aggregate to the sum of dollars and cents.

Also one (or more as the case may be) bound account book, one copy Thompson's
Supervisors' Manual (and so on mth each book or other property in his custody as
sxipervisor).

Dated March 15, 1886.

T. A. LOWERT,

Sdpkrvisob op the Town of Boonville.

§ 29. If Delivery Refused.— It shall be the duty of the
officers entitled to demand such records, books and papers to pro-
ceed to compel the delivery thereof.

1 R. S. 842, I 9 ; id. 376, | 51 ei seq.

The proceedings to compel the delivery of books and papers by
public officers to their successors are authorized by the Revised
Statutes.

Id. 376.
The title to office cannot be determined by these proceedings.

Matter of North v. Gary, 4 T. & C. 357; In the Matter of Whiting, 2 Barb. 514;
People V. James Allen, 61 How. 97 ; Hodgkin v. A. & P. R. R. Co., 5 Abb. 78 ; 16
Abb. N. C. 269-272; Ninhola v. M'Lean, 101 N. T. 636; /» re Baker, 11 How. 418;
/» re Bagley, 27 id. 161 ; People v. Stevenson, 5 Hill, 616.

The applicant's title to the office must be clear and free from reasonable doubt
to entitle him to institute these proceedings.

2 Crary's Special Proc. 206; People T. Allen, 51 How. 97-99; 16 Abb. N. C. 269-272;
In re Application of Benjamin Case v. Andrew Campbell, to compel delivery of
books, 17 N. T. W. Dig. 473; Matter of North v. Cary, 4 T. & C. 357, and cases
supra. \

But it is sufficient if the applicant is in possession of the office under color of
title, though if both parties claim to be in possession, and it is doubtful which is
the actual occupant, the court will require the parties to have the right to the
office determined by action before entertaining the proceeding.

In the Matter of Conover v. Devlin, 24 Barb. 587 ; Conover v. Devlin, 16 How. 470;
Conover's Case, 5 Abb. 74-281.

§ 30. To Wliom Application is Made.— The appli-
cation is made to a justice of the supreme court or the county judge
of the county where the person so refusing shall reside.

1 B. S. 376.

And if such officer shall be satisfied, from testimony offered, that
any such books or papers are withheld, he shall grant an order
directing the person so refusing to show cause before him, within
some short and reasonable time, why he should not be compelled to
deliver the same.

Id.



The Supervisor. 25

§ 31. Form for Application.



1 In the Matter of the Application of D.

D. C. to Compel Delivery of Books



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 3 of 96)