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 39 of 96)
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Strough v. Supervisors of Jefferson County, 50 Hun, 54.

§ 436. Ei^btll. An account audited or rejected, after a de-
termination and decision thereon, on the merits, cannot be audited
or allowed by a subsequent board or by another board having con-
current jurisdiction.

Osterhondt v. Kigney, 98 N. T. 222; Board of Supervisors v. Ellis, 69 id. 620.

A claim by a sole commissioner of highways for money expended
in repairing bridges without the authority of the board of auditors,
as required by chapter 103, Laws of 1858,_ but which the board has
audited and allowed, may, on being again presented by the com-
missioner, be re-examined and passed on, by the board.

People, ex rel. Meyers, v. Barnes, 21 N. B. Kep. 739, Court of Appeals, Second
Division, June i, 1889.

No Suit can be Broug-lit on a Town or County
Cliai*ff e. — Where a board of audit having the power to hear
and decide claims, have acted and decided, an action cannot there-
after be brought by the claimant on such claim or any part of it.

350 Supervisors' Manual.

Such decision is hinding on the parties to it, so long as it remains

Metropolitan Gas-light Co. t. Mayor, 9 Hun, 706; People, ez rel. Case, v. Collins,
19 W. 56; Osterhoudtv. Rigney, 98N. Y. 222-232, and cases cited; People v.
Supervisors, 45 id. 196 ; People, ex rel. Brown, v. Supervisors, 8 How. (N. S.) 241 j
People, - — ■ r, , rT.ii „^n vi._i o

Y. 645 1

Lawren-_, ,

2 Den. 26-39; People, ex rel. Cutwater, 56 N. Y. 469.

Such decision is in the nature of a judgment.

People, ex rel. Brown, v. Supervisors, 3 How. (N. S.) 241 ; People, ex rel. McDon.
ough, T. Supervisors, 33 Hun, 305-7.

No fiction for the recovery of a county charge can be maintained
against a county or the board of supervisors.

Brady v. Supervisors, 10 N. Y. 260.

The claim must be presented for audit.

Td.; People, ex rel. Cagger, v. Supervisors, 2 Abb. (N. S.) 78.

This power to audit is exclusive of all other authority over the
subject, and no actio7i can be maintained for a fmon or county charge.
See cases supra, under this sub-liead; see § 544, post,

§ 437. Nintll. Where a proper claim has been disallowed be.
cause not presented in proper form,., or not properly verified or ac-
companied by proper vouchers, or for any reason not involving a
determination on the merits, it may be audited by a subsequent
board, or one of concurrent jurisdiction.

Id.; People V. Supervisor, 45 Hun, 62.

And if informal or not properly verified, the claimant should be
allowed to amend it, if he desires.

People V . Supervisors, 45 Hun, 62.

And if permission to so amend is refused, the board may be com-
pelled, by mandamus, to allow the amendment.


§ 438. Tentll. The same board can reconsider its action, on
any claim, at any time during its session before final adjournment.

Id. ; People, ex rel. Hotchkiss, v. Supervisors, 65 N. Y. 222.

On November 7, 1873, relator's claim was presented to and audited by defend-
ant. On November 10, 1873, at another meeting of the same board, the same
members being present, it was unanimously voted to reduce it to $200, and on the
same day the board adjourned, after making and signing a summary of accounts
and certificate, including relator's claim at $200. This summary and certificate
were, on November 12, recorded in the town clerk's office, and delivered to the
supervisors. Held, that the resolution of the board, allowing relator's claim at
$200, with their action in making and signing the certificate, must be taken as
their allowance of the claim. It is the final action of the board, which consists

Auditing of Accounts. 351

in makiug and signing a certificate, that terminates their right to reconsider and
re-examine accounts.

People, eiarel. Smith, v. Town Auditors, 6 Hun, 647.

§ 439. Uleventll. All accounts should be accompanied by-
proper vouchers and books of account.

§ 440. Twelfth. The Audit Must be Made by
the Board. It Cannot Deleg'ate such a Poorer
to a Committee. — The final auditing of claims must be made
by the auditing board. The preliminary examination may be prop-
erly done by a committee of the board, but when the question of
allowing or disallowing claims, or any part thereof, arises, it must be
determined by the board itself and cannot be delegated to a com-
mittee or any other person.

Board of Commissioners v. Sackrider, 35 N. T. 154; People, exrel. Thurston, v.
Board of Town Auditors, 20 Hun, 150; People, mrel. Kimball, v. Supervisors, 25
id. 131; Bellinger v. Gray, 51 N. Y. 610; People v. Hagadorn, 104 id. 616.

Where all the officers constituting the board have met, a majority
of them may decide and their certificate will be suflScient, though
one of the members has refused to sign it.

People, ex, ml. Onderdonk, v. Supervisors, 1 Hill, 195.

It seems that when the board are properly formed, a majority of
the members present could act.

Id. 200.
See the powers of a majority set out in full, § 125, ainte.

In the board of supervisors, certain questions require a majority
of the quorum, others a majority or two-thirds of the members

Officer not Entitled to Fees unless Pre-
scribed by IiaTT. — Each clerk of a court must perform all
the duties required of him, in the course and practice of tlie court,
"without fee or reward, except as expressly prescribed by law. Each
public oflicer, upon whom a duty is expressly imposed by law, must
execute the same without fee or reward, except where a fee or other
compensation therefor is expressly allowed by law. An oflScer or
other person, to whom a fee or other compensation is allowed by
law, for any service, shall not charge or receive a greater fee or re-
ward, for that service, than is so allowed.

Code Civ. Proc, § 3280.

Officer to Keep an Account of Fees. — Where

a public officer is required, by law, to keep an account of, or to pay


over, the fees or other moneys, received by him for oflScial services,
he must include therein all sums received by him, to which he was
entitled, by reason of any act performed by him in his official ca-
pacity, whether the act did or did not pertain to his office, or to the
business thereof.

Id., §3286.

False Auditing* and Paying- Claims. -A public
officer, or a person holding or discharging the duties of any office or
place of trust under the State, or in any county, town, city or village,
a part of whose duties it is to audit, allow or pay, or take part in
auditing, allowing or paying claims or demands upon the State, or
such county, town, city or village, who knowingly audits, allows or
pays, or directly or indirectly consents to, or in any way connives at
the auditing, allowance or payment of any claim or demand against
the State, or such county, town, city or village, which is false or
fraudulent, or contains charges, items or claims which are false or
fraudulent, is guilty of felony, punishable by imprisonment for not
less than two, or more than five years, or by a fine not exceeding
$5,000, or by both.

Penal Code, § 165.

A person who, being or acting as a public officer or otherwise,
by willfully auditing or paying, or consenting to, or conniving at the
auditing or payment of a false or fraudulent claim or demand, or by
any other means, wrongfully obtains, receives, converts, disposes of,
or pays out, or aids or abets another in obtaining, receiving, con-
verting, disposing of, or paying out any money or property, held,
owned, or in the possession of the State, or of any city, county or
village, or other public corporation, or any board, department, agency,
trustee, agent or officer thereof, is guilty of a felony, punishable by
imprisonment for not less than three nor more than five years, or by
a fine not exceeding five times the amount or value of the money or
the property converted, paid out, lost or disposed of by means of the
act done or abetted by such person, or by both such imprisonment
and fine. The amount of any such fine, when paid or collected, shall
be paid to the treasury of the corporation or body injured. A con-
viction under this section forfeits any office held by the offender,
and renders him incapable thereafter of holding any office or place
of trust.

Id., § 166.

X!iXtOX*tion> — A public officer who asks or receives, or agrees
to receive, a fee or other compensation for his official service, either,

1. In excess of the fee or compensation allowed to him by statute
therefor; or,

2. Where no fee or compensation' is allowed to him by statute
therefor ;

Commits extortion, and is guilty of a misdemeanor.

Id., § 557.

Auditing of Accounts. 353

Presenting Fraudulent Claims. — A person who,

knowingly, with intent to defraud, presents, for audit, or allowance,
or for payment, to any oflBcer or board of officers of the State, or of
any county, town, city or village, authorized to audit, or allow, or to
pay bills, claims or charges, any false or fraudulent claim, bill, ac-
count, writing or voucher, or any bill, account or demand, containing
false or fraudulent charges, items or claims, is guilty of a felony.

Id., 8672.

TVlien Board Xeglects to Act Upon a Claim

Presented. — A claim presented to a board of supervisors who
permitted their session to expire without taking any action upon it,
is to be regarded as rejected for the purposes of a manda7nus to
compel its allowance.

People, airel. Aspinwall, v. Supervisors, 20 N. Y. 252.

The facts in this case were not very fully reported, and the above
is taken from the head-note. The editor understands that in the
fifth judicial district, a writ of mandamus was refused, where the
action was begun, after the board had adjourned sine die, by service
of the papers upon the chairman of the adjourned board, upon
the ground that suit could not be begun after final adjournment
by such service. The case is not reported, and he has been unable
to verify this statement.

Where the supervisors of a county have neglected to perform any duty required
of them at their annual meeting, they may be compelled by mandamus to meet
again and perform it. They cannot by their neglect nullify a statute imposing
duties upon them.

People T. Supervisors of Chenango Co., 8 N. Y. 318.

The supervisors, or their successors, can be convened for that purpose.

Id. 330; see also People v. Supervisors, 10 W. 363; Caswell v. Allen, 7 J. 68, 68;
People, exrel. Case, v. Collins, 19 W. 56.

A mandamvas lies to require the chairman and clerk of the board of supervisors
to reconvene the board and declare a resolution carried, and the clerk to so record
it, where the chairman had before illegally declared it lost.
People, ex rel. Burroughs, v . Brinkerhoff, 68 N. Y. 259.

Where one Auditing- Board Neglects a
Legal Duty, a Subsequent One may be Com-
pelled to Perform it. — In 1872, at the animal session of
the board of supervisors, a claim was presented, audited and allowed
at $5,500, on condition that it should not be levied or assessed, until
the claimant executed a bond of indemnity against certain litigations
pending, which condition was illegal, under the statute giving them


354 Supervisors' Manual.

power to act. No tax was levied to pay the claim. On September
28, 1874, an alternative writ was issued to the board of 1874, to
show cause why the $5,500 should not be levied, collected and paid.
Hdd, that it was the duty of the board to cause the tax to be levied,
and mandamus was proper to compel the board to assess and collect
the amount allowed.

People, exrel. Conway, t. Supervisors, 68 N. Y. 114.

The facts are more fully given in 6 Hun, 572. The board have no riglit
to audit a claim to " get rid of it," or as a gratuity.

Hill V. Supervisors, 19 J. 259-263.

§ 441. General Form of Accounts to be Pre-
sented. — As accounts are to be filed and preserved, they should
be properly made out on suitable-sized paper for filing and folding,
clearly written on only one side of the sheet, fully itemized, verified
and handed in in due season.

Each account should explain itself.

In most counties large-sized bill paper, with the last column
blank, is oreferred.

To Jones & Hower. Dr.


Feb. 31, 1207 lbs. broken rice, at six cents $72 43

May 12, 2400 lbs. imported beans, forty bushels, at $2. IS 86 00

June 10, 200 lbs. cod, at six cents 54 00

$212 42

Verification to be added, viz. :

Oneida County, »«.;

, being duly sworn, says that the items of the annexed account
are correct; and that the disbursements and services charged therein have been in
fact made or rendered; and that no part thereof has been paid or satisfied.

Sworn to before me, , 188


Signed ( .)

Forms for general accounts can be adapted from the above.

§ 442* Special forms are required for justices of the peace,' con-
stables, highway commissioners, overseers of the poor, railroad
commissioners and supervisors.

See ■poit, §§ 453, 454, 460, 462, 526, 527, 533A, 534, 535.

Auditing of Acooukts. 355

§ 443. How Accounts Should be Audited.

They are

Fvrst. To examine and determine wlietlier the account is properly verified and
proper in form.
Second. If so, to see if it is properly chargeable against the town.
Third. To settle and fix its amount.
Fourth. Allow it as thus settled.

People, ex ret. Sherman, v. Supervisors, 30 How. 173.
See "Principles and Practice,'' ante.


In addition to the fonr requirements above mentioned, the county board must
Mfth. Provide means for its payment. '


§ 444. Who are to Audit Accounts.

There are two boards for the auditing of accounts, viz. :

1st. The board of town auditors.

2d. The board of supervisors.

The acts of each board are governed by laws, which prescribe
what their powers and duties are, and each is limited to the powers
and duties so prescribed.

The " town charges " ought to be presented and audited by the
board of town auditors. Such is the general practice and the evi-
dent intent and spirit of the law, while all county charges are acted
on by the county board. But, with certain exceptions, as justices'
and constables' accounts for services in criminal proceedings, the
county board has concurrent jurisdiction over "t6wn charges" with
the town board, and should such town charges be presented to the
county board for audit, it would be their duty to act on them.

People, exrel. Millspaugh, t. Town Auditors, 1 How. (N. S.) 226.

§ 445. I*iz*st. In most of the counties the town board act
under the following statute :

LAWS OF 1840, CHAP. 305.
AN ACT in relation to the accounts of Town Officers.

Board of Town Auditors.

Section 1. The supervisor, town clerk, and justices of the peace, or any two
of the said justices of the peace of the several towns in this State, shall constitute
a board of town auditors for the purpose of auditing and allowing the accounts
of all charges and claims payable by their respective towns.

356 SupEKvisoKs' Manual.

To Meet Annually.

§ 2. The said board of auditors shall meet for the purpose of auditing and
allowing such accounts annually in each town, at the place of holding the last
town meeting, on the last Thursday preceding the annual meeting of the board oj
supervisors of the county.

Thus amended by Lairs of 1844, chap. 288.

To Make Gertifieaiei.

% 3. The said board shall make a certificate to be signed by a majority of said
board, specifying the name of the person in whose name the account is drawn,
the nature of the demand and the amount allowed, and shall cause a duplicate of
said certificate to be made, one of which shall be delivered to the town clerk of
said town, to be by him kept on file for the inspection of any of the inhabitants
of the town, and the other shall be delivered to the supervisor of said town to be
by him laid before the board of supervisors of his county at their annual meeting.

Dutff of Board of Supervisors.

% 4, The said board of supervisors are hereby authorized and directed to cause
to be levied and raised upon said town the amount specified in said certificate in
the same manner as they are now directed to levy and raise other town charges.

1 R. S. 885.

LAWS OF 1860, CHAP. 58.
AN ACT conferring additional powers on boards of Town Auditors.

AddUvmai Powers of Town Auditors.

Section 1. The board of town auditors of the several towns of this State, in
addition to the authority now vested in such board, shall have the power and, it
shall be their duty at their annual meeting to audit the accounts of the justices
of the peace and constables for fees in criminal cases, which are by law charge-
able to any such town, and the amount thereof shall be included in their certifi-
cate and assessed by the board of supervisors of the county upon such town, in
the same manner as other town charges are now assessed and collected.

Thus amended by Laws of 1866, chap. 832.

% S. All acts and parts of acts inconsistent with this act ar« hereby repealed.
1 R. S. 835.

LAWS OF 1863, CHAP. 173.
AN ACT in relation to the accounts of Town Officers.

Duty of Toum Auditors.

Section 1. The town auditors in the several towns of this State shall examine
the accounts of the overseers of the poor and the commissioners of highways of
such town, for all moneys received and disbursed by them, and shall meet for the
purpose of examining the same, annually, in each town of this State, on the
Tuesday preceding the annual town meeting to be held in each town.

Certain Officers to Account for Moneys.
§ 2. The commissioners of highways in each towns of this State, and all town
omcers who receive or disburse any moneys belonging to their respective towns

AuDiTiKG OF Accounts. 357

shall, on the last Tuesday preceding the annual town meeting of their town
account with the board of town officers of such town for all moneys recSvedTnd
disbursed by them by virtue of their offices. receivea ana

Auditors to State Account.
§ 3. The said board of town auditors shall make a statement of such accounts
??f ft^F^f .*^''^*° ^ certificate to be signed by a majority of the board. shoTng
the state of the accounts of the said highway commissioners and other officers at
the date of the certificate; which statement and certificate shall be filed with the
town clerk of the town, and be by him produced at the next annual town meet-
mg, and publicly read. "iooi.

IR. S.

LAWS OP 1866, CHAP. 833.

AN ACT to amend an act entitled " An act conferring additional powers on
boards of Town Auditors," passed March third, eighteen hundred and sixty.

Appeal to Supervisors of County.

§ 2. In every case where any account of a justice of the peace or town con-
stable, for fees in criminal cases, is audited by a board of town auditors of any
town, any tax payer of said town may appeal from such auditing and allowance
to the board of supervisors of the county, and such board of supervisors shall
thereupon have power to audit and allow such bill; and in case any such accoun'
shall be disallowed, or the amount thereof reduced, the party presenting the
same shall have the same right of appeal as above provided.

As to justices, see Laws of 1860, 1866, ante, § 445, and Laws of 1869, chap. 855, on nest
page below.

Within what Time to be Taken,

§ 3. Such appeal shall be taken within five days after the allowance or disal-
lowance of a bill by such town auditors, in whole or in part, by the service of a
notice of appeal in writing on the town clerk, and said town clerk shall forth-
with thereafter transmit said bill to the board of supervisors of said county to be
audited and allowed by them, and said board of town auditors shall have no
further jurisdiction over any such bill after the service of said notice of appeal.

When Bill not to be Levied, etc.

§ 4. If after service of any notice of appeal, the bill is not transmitted to the
board of supervisors, as herein provided, no part thereof shall be levied or col-

Collected by Tax.

§ 5. Such part of the town bills audited by the board of supervisors after such
appeals as shall be allowed, shall be assessed, levied and collected by the said
board in the same manner as other town charges.

§ 1 is set forth in Laws of 1860, chap. 68, ante; Laws of 1869, chap. 855; 1 R. S. 836.

The bills rendered by justices of the peace for services in criminal proceedings
shall, in all cases, contain the name and residence of the complainant, the offense
charged, the action of the justice on such complaint, the constable or officer to>
whom any warrant on such complaint was delivered, and whether the person
charged was or was not arrested, and whether an examination was waived or had
and witnesses swore thereon; and the account shall also show the final action of
the justice in the premises. At any time within fifteen days after the board of
town auditors of any town shall have filed with the town clerk thereof, the cer-
tificate of accounts audited as required by law, any tax payer of said town may
appeal from the action of said board of town auditors, in auditing the account of
any justice of the peace, to the board of supervisors of the county. Said appeaL

358 SupBRTisoRs' Manual.

shall be nuide by serving notice thereof, in writing, on the town clerk of the town,
and on the clerk of the board of supervisors, within the time above limited. The
said supervisors shall thereupon audit the accounts of such justices of the peace,
and their decision in the auditing and allowing of said accounts shall be final.

Laws of 1869, chap. 855, § 6, as amended bj Laws of 1871, chap. 274.

The statutes of 1840, 1860, 1863, 1866 and 1869 contain all the provisions of the
Revised Statutes, and the latter are, therefore, omitted.

§ 446. Second. Some few towns, viz.: Ausable, Cham-
plain, Peru and Plattsbnrgh in Clinton county ; Lenox in Madison
county ; Queensbury, Chester and Caldwell in "Warren county, and
the county of Essex, are acting under chapter 180, Laws of 1875,
which provides for the election of three town auditors, who form
the board of town auditors, having all the powers conferred by the
laws above set forth.

The following is the law :

TO'Wn Auditors. — In addition to the officers now author-
ized by law to be elected at town meetings, there shall be chosen in
the manner hereinafter provided, in each of the towns of this State,
at the next annual town meeting held after the passage of this act,
and annually thereafter, three town auditors, whose terms of office
shall continue during one year after their election, and who shall
form the board of town auditors of the town for which they are

Laws 1875, chap. 180, § 1.

POTTers and Duties. — AH the powers conferred by law
upon boards of town auditors, and all duties required by law to be
performed by such boards, are conferred upon and shall be required
of the town auditors elected or appointed under and pursuant to
this act. All bills and claims must be presented on the first day of
their session.

Id., § 2.

Voting fox*. — Such town auditors shall be voted for upon the
same ballots as other town officers, and the ballots received and can-
vassed, and their election certified, excepting, however, that only
two of such auditors shall be voted for on each ballot, and the two
persons having the highest number of votes shall be declared elected
as two of such auditors, and the person having the next higheet
number of votes shall be appointed by the presiding officer of such
town meeting, or in case the election is held in election districts, by
the supervisor and justices of the peace of such town, or a majority
of them, as the other of such auditors.

Id, §8.

Wlio Eligible. — No person shall be elected or appointed as
such town auditor, or shall hold office as such, unless he is a free-

Auditing of Accoukts. 359

holder of the town for which he shall be elected or appointed, and
no person so elected or appointed shall hold any other office in such
town during the term for which he is elected or appointed ; and if he
shall accept an election or appointment to any other office in such
town, he shall immediately cease to bo a town auditor, and the va-
cancy in his office shall be supplied in the manner hereinafter re-

Id., § 4.

Compensaition. — Each of such town auditors shall be
entitled to and shall receive for his services $3 per day for each
day (not exceeding three) actually employed by him in the per-
formance of the duties of his office, except in towns having a popu-
lation of over six thousand, in which towns they may sit not to

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 39 of 96)