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 37 of 96)
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justice has been done to said town by the act or decision of the board of super-
visors of the county of , in the equalization of assessments and the
correction of the assessment -rolls of said county, as made on the day of
A. D. 18

Signed ( ,)

Subscribed and sworn to before me, this )
day of . A. D. 18 . )

Rule 1st of January 22, 1884.

The other rules are as follows-

Second. On the hearing, the appellant shall be deemed to have the affirmative,
and the action of the board of supervisors shall be regarded prima facie, as cor-
rect, until such presumption is overcome by evidence establishing the allegation
of injustice done to the appealing town, ward or city.

Third. The board of supervisors shall be deemed the respondent.

Fourth. In order to establish the allegation of injustice and erroneous equali-
zp.tion, the appellant must show by evidence, oral documentary (or by deposi-
tions, when said board so directs), the full and true value of sufficient property in
each town, ward or city of said county, to determine the full and true value of
the whole of the property of said town, ward or city, with reasonable accuracy.

Mfth. The board of State assessors will require the production of all the assess-
ment-rolls on which the board of supervisors made the equalization appealed
from, and such rolls will be regarded as a part of the evidence in the case.

Sixth. The appellant will be required to present a correct statement of the rail-
roads in each of the towns and cities of the county. Such statement must contain
the name of the railroad, miles of road-bed and width of the same, number of
continuous tracks and length of switches or side tracks, real estate, if any, outside
of road bed, and the estimated full value of all buildings, as depots, workshops,
round-houses, water tanks, etc.

Seventh. The appellant will also be required to present at such hearing,
the area in acres and assessment (for purpose of county and State taxation) of
each incorporated village in the county. This will not be required in counties
where assessors have made separate assessments for farm and village property.

Eighth. The appeal will be heard at the time and place appointed, unless
sufficient cause shall then and there be shown by affidavit, why an adjournment
should be granted.

Ninth. After the fixing of the time and place for the hearing of said appeal, it
shall be the duty of the appellant or his successor, to serve notice of the said
hearing and the time and place thereof, on the clerk of the board of supervisors
of the county wherein said appeal originates, at least fourteen days prior to the
time so appointed, personally or by mail, addressed to him at his place of resi-
dence, or of his usual post-office address; and to furnish said board of State
assessors at the time of hearing, proof by affidavit of the due service of said
notice, made by the person making such service, or by the written admission of
such service, signed by said clerk (unless some person duly authorized shall
appear at said hearing in behalf of the respondents). In case of vacancy in the
office of clerk of the board of supervisors, then such notice shall be served by the
said appellant or his successor, upon the clerk of the said county, within the
time and in the manner hereinbefore provided. It shall be the duty of the clerk
receiving such notice, to immediately serve a copy of the same on each of the
supervisors of said county, personally or by mail, addressed to him at his place
of residence, or of his usual post office address.

Tenth. The board of State assessors will require a detailed and itemized state-
ment of all expenses claimed by the respective parties, verified by affidavit
proving the amount of such disbursements and charges and showing the necessity
thereof before said board will proceed to certify the reasonable costs and expenses
arising from and connected with said appeal. But the aggregate of all the



334 Supervisors' Manual.

expenses and counsel fees which may be certified to the appellant shall not
exceed two thousand dollars, nor shall the aggregate of all the expenses and
counsel fees which may be certified to the respondent exceed two thousand dollars.

Eleventh. When more than one appeal shall be pending in a county, brought
by difierent supervisors, on behalf of different towns, wards or cities, said appeals
shall all be heard at the same time and together.

Twelfth. Not more than one counsel will be heard on either side, on the final
argument of the matter, unless for special reason then shown.

Thirteenth. Subpoenas will be furnished on request, by the State assessors, to
either party.

Bules issued January 23, 1884

Decision of tlie State Board of Equalization
Revie-wable on Certiorari. — This proceeding was in-
stituted to review a decision of the State assessors, sustaining an ap
peal taken by the supervisor of the town of Perth, from the equali-
zation of the assessments of the county of Fulton, made by the board
of supervisors of Fulton county, and directing that a sum therein
named should be credited to the town. Upon the. hearing of the re-
turn made to the writ of certiorari it appeared that the State asses-
sors admitted in evidence records of deeds of conveyance of lands in
the several towns of the county against the objection of the relator,
and that subsequently the considerations expressed in the several
deeds thus admitted, were claimed by the town of Perth to furnish
some evidence as to the value of the several pieces of real estate de-
scribed in them.

Held, that the decision of the State assessors, in admitting the
evidence, was not a violation of " any rule of law, ajBEecting the
rights of the " relators, as these words are used in subdivision 3 of
section 2140 of the Code of Civil Procedure, for the reason:

First. That in the disposition of appeals like the one in question,
the State assessors are governed and controlled by statutory provi-
sions, and the rules and regulations made by them in pursuance of
the authority so to do conferred upon them by the said acts ; and

Second. That while they have not full power to render a decision
of their own volition and without evidence, yet they are, to some
extent, vested with a discretionary power to take action, without re-
stricting their proceedings to strict technical rules.

People, ex ret. Schabacker, v. State Assessors, 47 Hun, 450.

The action of the State board of equalization in the discharge of
the duty imposed upon it of equalizing the State tax among the
several counties of this State, is judicial in its character, and when it
has acquired jurisdiction any error in its judgment or mistake in its
conclusions can be asserted only in some direct proceeding for review.

Mayor, etc., of New York v. Davenport, B2 N. T. 604.



Equalization. 335

The fact that said board did not have before it at its meeting a
written digest of facts to be prepared by the State assessors, is not a
jurisdictional defect, and is immaterial.

Id.

The fact that the board increased the valuation of a county with-
out swearing and examining witnesses is immaterial; that is the
duty of the State assessors, and iipon the information given by them
to the board, it is authorized to act.

Id.

Nor does the fact that the board, after a short secret session,
adopted a schedule of equalization, prepared by one of the assessors,
affect the validity of its decision.

Id.

The fact that the S.tate board of equalization, after giving a county
full opportunity to present proof, information and argument, went
into secret session when deliberating upon the equalization of assess-
ments, excluding the representatives of the county from participa-
tion therein, and declined their assistance and advice in making such
equalization, does not justify a charge of misconduct against the
board.

People V. McCarthy, 102 N. T. 631.

Nor is it just ground for such a charge against the State assessors,
that, in seeking information as to the value of real estate in the
county, they did not accept offers of assistance and advice tendered
by the county tax and assessment officers.

Id.

It seems the price paid on private sale of real estate is not compe-
tent evidence of value, and a comparison of the difiEerence between
the consideration stated in transfers of real estate, and the assessed
valuation of such real estate in two counties of the State is not con-
clusive or cogent evidence to show that the assessed valuation in the
one county is nearer the real value than in the other.

The statutory scheme of valuation for purposes of taxation
stated and explained.
Id.

The court will not reverse a decision upon certiorari, as against
the preponderance of evidence, under Code of Civil Procedure, sec-
tion 2140, subdivision 5, if there was evidence before the body
whose decision is sought to be reviewed, legitimately tending to sup-
port the determination as to all material facts.



336 Supervisors' Manual.

So hdd, upon certiorari to review the decision of the State asses-
sors npon appeal by tlie supervisors of a city from the equalization
of assessments of the county made by its board of supervisors, the
material fact being the value of the real estate of the several towns
and in the city.

People, a. rel. WyM, v. Williams, 17 Abb. N. C. 366.



CHAPTER VIII.



AUDITING OF ACCOUNTS.



Skc. 428. Practice and principles governing.
429-440. Rules goTerniug the auditing
of accounts .

441 . Greneral form of accounts to be pre-

sented .

442. Special form of account.

443. Uow accounts should be audited.

444. Who are to audit accounts.
445-448. Laws governing the action of

town auditors.

449. Who compose the board of town

auditors.

450. Auditors of supervisors' account.

451. When to meet.

452. Accounts of overseers of the poor.

453. Account of the overseer of the poor

under the poor law of Livingston
county.

454. Account of highway commission-

ers.

455. Auditors to state account.

456. Auditors to meet, when.

457. Town charges.

458. For certain expenses, judgments,

etc.

459. Accounts for sheep killed by dogs.

460. Justices' and constables' fees in

criminal cases chargeable to a
town.

461. Form of justice's account.

462. Form of constable's account.

463. Statement with account.

464. Costs.

465. Town bonds.

466 . Cancellation of bonds and coupons.

467. Commissioners to keep records.

468. Board of town auditors to prescribe

bond of railroad commissioners.

469 . Duty on vote of town to levy a tax

for the purpose of buying and
canceling bonds.

470. Old bonds may be paid up or re-

tired by issuing new bonds.

471 . Bonds need not be audited .

472. Gospel and school lot funds .

473. Town notes, so called, etc.

474. Certificate of town auditors.
475a. Supervisors to raise amount

audited .
476b. Abstract of town accounts.

477. County charges.

478. Town charges.

479. Principles and practice.

480. When accounts to be presented.

481. Items to be stated and verified.

482. Accounts to be numbered.

483. What are county charges.

484. Printing calendar.

43



Sec. 485 . Printing session laws .

486. fiesolutions, publishing of .

487 . Terms of court — Advertising.

488. Printing, expenses of .

489. Election notices and official can-

vass.

490. Census.

491 . Salaried county officers.

492. Judgments.

493. Proceedings for removal of

county officers.

494. Default of tax collectors.

495. Default of county treasurer.

496 . Support of the poor.
• 497. Game and fish.

498. Insuring buildings.

499. Court criers.

500. Damages by mobs.

501 . Election expenses, criminals, etc.

502. Stenographers.

503. Stenographer for county court,

etc.

504. Costs.

505 . Contingent charges .

506. Torts.

507. Court-rooms and other county



property, etc.
ail f



508. Jail furniture.

509. Counsel.

510. Counsel to assist district attorney.

511 . Counsel assigned by the court.

512. Counsel employed by the super-

intendent of the poor, etc.

513. Excise commissioners.

514. Coroners.
615. Ph^icians.

516. Coroner's jurors — Fees of.
517-518. Jurors.

519. Lunatics.

520. Idiots.

521. Orphan asylums.

522. Militia.

523. Moneys necessarily expended.

524. Referee's fees.

525. Superintendent of the poor.

526. Account and report of superin-

tendent of the poor.

527. Supervisors' accounts.

528. Taxes.

529. Form of general account.
530-532. Accounts of justices of the

peace.
533a. Justice's report.

534. Form of justice's account.

535. Accounts of constables.

536. To publish audits.
Albany county, system in .



338 yuPEKTisoEs' Manual.

The word " audit" means to hear and examine, to pass upon and
adjust, a judicial investigation and decision as to the merits of a claim.

In re Murphy, 24 Hun, 592-4.

§ 43S. Practice and Principles Governing.—

The general practice and principles governing the auditing of ac-
counts, either by town or county boards of auditors, are the same,
and are as follows :

§ 429. First. The powers of such boards are strictly limited
by statute. They cannot admit and audit a claim upon any notion
of their own of its equity ; but are simply to admit and audit such
claims only as are made by statute, expressly or by necessary impli-
cation, legal charges.

People V. Lawrence, 6 Hill, 24i ; Osterhoudt T. Eigney, 98 N. Y. 222.

When they transgress the limitations prescribed by statute their acts are void.
Osterhoudt v. Eigney, 98 N. Y. 233.

Boards of supervisors cannot hind their counties by an act not
within the limits of the express powers conferred upon them hy
statute, they cannot allow a claim on any notions of their own as to
its equity.

Chemung Canal Bank v. Supervisors, 5 Denio, 617.

They are bound to provide funds to pay orders drawn by the
superintendents of the poor and certificates given for service as ju-
rors, and if the funds are wasted or lost, to provide otters to replace
them.

Id.

They cannot make hills of exchange. County orders paid by the
treasurer have lost their vitality and cannot again become valid se-
curities in the hands of an innocent holder ; but where, without any
fraudulent intent, the bolder of large county orders exchanged them
with the treasurer for smaller ones which he had paid but which had
never been allowed in his accounts, the debt represented by the
large orders is not extinguished.
Id.

§ 430. Second. Amount Fixed by Statute.—

When the amount of a charge is fixed by statute the board have no
discretion over it, and must audit the claim according to such
statute.

People, exrel. Kinner, t. Supervisors of Cortland Co., 40 How. 63; 98 Jf. T., tupra,
232.

Where a salary is fixed by law which the board are required to audit and allow
they have no discretion, and are liable to be fined for refusing so to do.
Morris v. People, 3 Denio, 381.



Auditing of Accounts. 339

lui^i'!'^ ^^X^^ imposed upon an officer, since his salary was fixed, he is not
entitled to additional pay therefor. ."<"=. um

People, ex rel. Phoenix, v. Supervisors, 1 Hill, 362.

K person holding a public office has a j^rma facie right to the salary thereof,
although he be physically disabled from performing his duties. If there be no
law or regulation authorizing the discontinuance of the compensation during the
disability, the only remedy is his removal.

Sleigh V U. S 9 Ct. 01. 369; 5 Wait's Act. and Def. 20; People, ex rel. Ryan v
French, 91 N. Y. 265; O'Leary v. Bd. of Education, 93 id. 1. ^ '

A salaried officer is not entitled to a per diem allowance for performing a new
duty imposed upon him, even for Sunday labor.

Palmer t. Mayor, 2 Sandf. 318. See Baker r. City of Utioa, 19 N. Y. 326 • City
of Poughkeepsie y. Wiltsee, 36 Hun, 270. '

Where an officer, entitled by law to a fixed annual salary, 'h&s been prevented
for a time, through no fault of his own, from performing the duties of his office,
and has during that time earned wages in another and different employment, he
cannot be compelled, in an action to recover his unpaid salary, to deduct the
amount so earned.

Fitzsimmons y. City of Brooklyn, 102 N. T. 536.

There is no contract between an officer and the State or municipality by force
of which his saXa/ry is payable, but it helongs to him as an incident to his office so
long as he holds it, and when improperly withheld, he may recover the amount.
Id.

TJneamed saXa/ry of a public officer is in no respect salary and may be changed
at any time during the term of office when the legislative power is unrestricted
by the Constitution.

Board of Supervisors of Erie Co. v. Jones, 28 N. Y. W. Dig. 502.

When the legislature, by statute, made the compensation of a county treasurer
a salary, in place of fees which before then he was entitled to receive, the act
taking efEect January 1, 1883, held, that a county treasurer elected in November,
1881, was entitled to the salary so fixed and should account to the county for the
fees received by him.

Id.

§431. Third. If not Fixed by Statute.— When
the amount is not fixed by statute, but the claim is a legal charge,
the board are to determine the amount.

However much the board may err in judgment, so long as it keeps within its
jurisdiction and acts in good faith its audit cannot be overhauled, but is final both
to the claimant and to the tax payer.

Id.; People, ex rel. Johnson, v. Supervisors, 45 N. Y. 196-9; Metropolitan Gas-light
Co. v. Mayor, 9 Hun, T06; Hobbs v. City of Kingston, 102 N. Y. 13.

If they audit an account not legally chargeable, it is not only void, but may be
disregarded by other town or county officers, and is not binding and conclusive
upon a succeeding board.

Board of Supervisors of Richmond Co. v. Ellis, 59 N. Y. 620; id. (above).

And may be recovered.

kossy. Supervisors, 38 Hun, 20, and cases supra; People, ex rel. McSpedon, v.
Stout, 4 Abb. 22; People v. Lawrence, 6 Hill, 244.

Boards of supervisors, in auditing and allowing accounts, are limited to the
powers conferred upon them by statute .
If the subject-matter of the account be within the jurisdiction of the board of



340 SUPBEVISOES' Manuai.

supervisors, and they allow it, the county treasurer has no right to refuse pay-
ment on the ground that the allowance was for too much, or was made upon in-
sufficient evidence.

Otherwise, if it appear on the face of the account that the subject-matter was
not within the juriscUction of the board.
People T. Lawrence, 6 Hill, 244.
The auditing of an improper item does not vitiate the whole levy of taxes.

Parish t. Golden, S5 N. T. 462.
But a mandamus lies to annul the illegal item.
People, ex rel. Lawrence, v. Suprs., TS M. T. 173.

If it could not be ascertained what amount of the illegal claim was allowed, or
whether the deduction was made therefrom, or from the items which the board
had jurisdiction to audit, the whole audit will be vacated.

Osterhoudt t. Rigney, 98 N. Y. 222.

No court can audit a. claim, or order the officer to pay it, unless some statute
authorizes it so to do.

In re Tinsley,!90 N. T. 231 ; People, ex rel. Johnson v. Bd. of Suprs., 45 id. 196, 200.

In all cases where the exercise of discretion is required, and the board is not
satisfied with the sum charged, it is better, it is just, that notice be sent to the
claimant with a request to appear and explain, before making a blind and arbi-
trary reduction of the account without evidence or knowledge to support their
decision.

People, ex rel. Sherman, v. Supervisors, 30 How. 173; 45 Hun, 62.

In settling the amount if the claim is for any matter the price of which is fixed
by law, by custom, by authority, or by contract with one having authority to
contract on behalf of the county, the board have no discretion, but must settle or
declare the amount according to such law, custom or contract.

Id.

An act of the legislature (Laws of 1867, chap. 938) " authorized and empow-
ered " the boards of supervisors of certain counties therein mentioned to hear and
determine claims for illegal assessments upon United States securities, and to
repay the amount collected upon such assessments. Held, that the act was man-
datory, and not merely permissive. And that, upon the presentation of a claim
thereunder, the only questions to be determined by the board, and in reference to
which it has any discretion, are whether the claimant has such a claim, and, if
so, the amount thereof. That, when the fact of the existence of the claim is
undisputed, the board has no authority to reject it as illegal ; and it can be com-
pelled, by mandamiiS, to exercise its discretion upon the facts, and the amount of
the allowance.

People, ex rel. The Otsego County Bank, v. Supervisors of Otsego, 51 N. T. 401 ;
S. C, 53 Barb. 564.

The only subject upon which the judgment of the board of supervisors is to be
exercised, in such a case, is whether it is established before them that bonds,
stocks or national securities not subject to taxation have been taxed; and, if so,
the amount so erroneously taxed and paid, and who is entitled to the repayment
thereof.

People T. Supervisors of Herkimer, 56 Barb. 452.

The board act judicially in examining, settling and allowing accounts. This
involves the right to receive evidence, hear, consider and determine the justice
of the claim presented.

People, ex rel. Baldwin, v. Supervisors, 12 How. 204; People, ex rel. Brown, v.
Supervisors of Herkimer Co., 8 How. (N. S.) 241; Osterhoudt v. Bigoey, 98 N. T.
222.

Under an act giving a marshal $2 per day for each day actually and necessarily
employed, he presented a claim for fifty-nine days; the board found and detei-



Auditing of Accounts. 341

mined that he was not necessarily and actually employed fifty-nine days, but only
forty days; held, the decision was a judicial determination which could not be
reviewed on mandamus.

12 How. 204, tupra.

It is the office of a common-law certiorari to review the determinations of a
board of supervisors; and this remedy is proper in case such a board rejects, as
not just or legal, a claim which the legislature has declared, by statute, to be just
and legal, and directed the board to audit and allow. Although the court cannot,
by certiorari, compel a performance of this duty, it can reverse the erroneous
decision, leaving the party, in case of further refusal to perform its duty, to such
further remedy, by mandamus or otherwise, as the law gives him.
People V. Supervisors of Madison, 51 N. T. 442.

Where a tax upon the capital stock of a bank, including that portion invested
in United States securities, was assessed, levied and paid prior to the decision of
the supreme court of the United States, holding that the portion so invested was
exempt from taxation; and where a claim was made to a board of supervisors,
under the provisions of the act of 1867 (chap. 938) to provide against illegal tax-
ation, for the repayment of that portion of the tax so illegally assessed, it was
Mid that it was no answer to the claim that the claimant did not appear before the
assessors and object to the assessment, or that it paid the tax voluntarily.

Id.

A county board of commissioners of excise has power to employ an attorney to
conduct the prosecutions for penalties which they are authorized to institute ; and
as it acts as the agent of the county in so doing, the claim for such services is a
county charge.

People T. Supervisors of Delaware, 45 N. T. 196.

An account for such legal services must be presented to the board of supervis-
ors, and must be audited and allowed by them; but the amount to be allowed, in
the absence of express contract or statute, is somewhat in their discretion. If they
are legally chargeable to the county, it is the duty of the board to audit them,
and on their refusal, a m^indcmius is the proper remedy.

Id.

The auditing of a claim against the county of New York, by the board of super-
visors, is an allowance of the claim, and when funds are provided for its pay-
ment, no further auditing is required. Such auditing is conclusive upon the
board and their successors; and no subsequent board of supervisors will be
authorized to require the same to be audited a second time.

People V. Green, 64 Barb. 162.

Where any body of men is directed, by law, to audit a claim, it seems that an
order of the court, directing the amount at which such claim shall be allowed,
would be improper; except in case of salaries and claims where the amount to be
recovered is fixed by statute. In other cases, the board which is to audit must



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 37 of 96)