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 51 of 96)
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of a legislative character, in favor of the regularity of which all presumptions
are to be indulged. Those who would impeach it have the burden of disproving
a compliance with the conditions imposed by the statute.

People V. Carpenter, 24 N. T. 86.

A notice of intention to apply to a board of supervisors to fix, establish, locate
and define a disputed boundary line between two towns, which omits to describe
pa/rticiUarly the line in dispute, is defective, although the line proposed to be
acted upon is fully stated, and such a notice confers no jurisdiction on the board.
Said board acts judicially in such case.

Prohibition lies to restrain proceedings of the board of supervisors, judicial in
their nature, under a notice which confers no jurisdiction.

The People, ex rel. Town of Knox, v. Supervisors of Albany Co., 68 How. 411.

A judgment creditor of a town which has been divided under the act of 1873
(chap. 319, Laws of 1873), is not entitled to a mandamus requiring the board of
supervisors of the county to levy and assess the amount due upon the territory
formerly included in the town.



Powers and Duties of the Board. 473

It seems, that the remedy of the creditor is by maridamus against the officers of
the towns which have any portion of the territory of the old town, requiring them
to meet and discharge the duties devolved upon them by the provisions of the
Revised Statutes (1 R. S. 338, §§ 4et seq.), which provisions are at least, in the
first instance, exclusive and must be pursued.

It seems, also, that the legislature had power to require the debts of the town
to be paid in the way so prescribed.

The act of 1880, to facilitate the collection of judgments against towns,
etc. (chap. 554, Laws of 1880), has no application to such a case ; but simply had
reference to towns which have not been divided or altered.

People, ex rel., v. Board of Supervisors of Ulster Co., 94 N. T. 263.

In order to render the expense of maintaining all the poor of a county a county
charge, the board of supervisors must not only determine to abolish the distinc-
tion between county and town poor, but mttst file such determination with the
county clerk.

Until such determination be filed, the duties of the officers arising out of such
change in the poor system do not attach.

Thompson v. Smith, 2 Denio, 177.

Such filing cannot be proved by parol unless it be first .shown that primary evi-
dence cannot be obtained. The service of the resolution of the board of super-
visors on the town clerks Is not essential to effect a change of system, such pro-
vision being only directory.

Id.

Where, owing to a dispute as to the boundary line between two towns, an in-
dividual's real estate has been assessed and taxes paid in both towns, and the
board of supervisors of the county have refused to ascertain and determine the
amount which he is equitably entitled to receive back as authorized by the act of
1873 (chap. 119, Laws of 1878, subd. 16, § 4, ante), it is not essential to relief by
mandiimus that an action could have been maintained against the assessors ; the
statute may be invoked without regard to that question.

People, exrel. Witherbee, v. Board of Supervisors, 85 N. T. 612.

As to acqvAring real or personal property, see Decisions, ante, § 544.

Where, owing to a dispute as to the boundary line, the real estate of a person
is assessed in two towns, proceedings by mandamus may be maintained against
the board of supervisors of the county, in case of its refusal to act, to compel
such board to ascertain and determine the amount which the person is equitably
entitled to receive back, and from which of the towns, as authorized by the last
section.

People T, Supervisors of Essex Co., 70 N. Y. 228.

The fact that the assessors of one of the towns had no jurisdiction to make the
assessment, and that the relator has a cause of action against them, does not de-
prive him of the right to proceed by mandamiis ; the statute was intended to
provide a cumulative, less expensive and more speedy remedy, and is mandatory.

Id.

This act does not violate either the Federal or State Constitution.
Id.

This statute was Intended to apply to cases existing at the time of its passage,
as well as to those occurring subsequently.

Id.

60



474 r Supervisors' Manual.

§ 554. Under Laws 1880, chapter 336.

AN ACT supplemental to chapter 194, Laws 1849.

Formation of New Towns and Apportionment of Bonds for Construction oj

Railroads.

Section 1. Whenever any board of supervisors shall form a new town within
its respective county, from parts of other towns, or town which shall have bonded
to aid in the construction of any railroad under any act authorizing the same, and
such bonds, or any part thereof, shall remain unpaid, or when any board of
supervisors shall change the line of any town which shall have bonded to aid in
the construction of any railroad in this State, and such bonds, or any part thereof,
shall remain unpaid, the new town so formed and the part or parts taken from a
town and added to another town shall pay a proportionate share of such bonds as
shall remain unpaid, which share shall be ascertained from the assessed valuation
of such town or towns as contained in the last equalized valuation of the assess-
ment-roll, made prior to the formation of such town or the change of any such
town line.

2 R. S. 933.

Railroad Commissioners to Render Statement.

^ 3. It shall be the duty of the railroad commissioners of the town, any part of
whose territory shall have been detached as aforesaid, to render a true statement
to the board of supervisors, as now required by the general railroad act, of the
amount necessary to pay the proportionate share belonging to the territory
detached from their town, which may be then coming due, and the board of
supervisors shall add such proportionate share to the sums to be collected from
the town so formed, or to the part or parts which shall have been detached from
a town and added to another town, to be collected as prescribed by law.

Id.

Assessors to Make List of Taxable Inhabitants and Lands.

§ 3. The assessors of the town or towns to which shall have been added a part
of another town shall yearly, until such bonds be paid, make a separate and dis-
tinct list of the taxable inhabitants and lands contained in the territory so annexed
in the assessment-roll of the said town, in all respects similar in form and manner
to the assessment-roll as now made. Said list shall be designated in such roll
" List of annexed lands and inhabitants."

Id.

Moneys to be Paid by Supervisor to Railroad.

§ 4. Such proportionate share of moneys collected as provided In the second
section of this act shall be paid by the supervisor of the town wherein collected
to the railroad commissioners of the town or towns from which such territory
shall have been detached, and such commissioners shall use such moneys for the
payment of the bonds issued in the same manner they are required to use the
moneys raised in their own town.

Id. 934.

In what Cases Provisions of Act shall Apply.

§ 5. The provisions of this act shall apply to all cases where a new town shall
have been formed, or the line of any town shall have been changed by the board
of supervisors of any county since the first day of January, 1879, where no pro
ceedings have been taken under chapter 597 of the Laws of 1870.

Id.

See Decisions, § 552, ante.

§ 555. Under the Laws of 1855, chapter 249.

AN ACT to authorize boards of supervisors to adopt seals, and to make certified
copies of their records and proceedings evidence.



Powers akq Duties of the Board. 475

Seal.

Section 1. The board of supervisors of any county in this State may adopt a
seal, and when so adopted the clerk of such board shall cause a description thereof,
together with an impression therefrom, to be filed in the office of the county clerk
and in the office of the secretary of State, and the same shall thereupon be the
seal of the board of supervisors of such county.

2 R. S. 984.

Records, When SHdenee.

§ 3. Copies of all papers duly filed in the office of the clerk of the board of
supervisors of any county, and transcripts from the books of records kept therein,
certified by such clerk, with the seal of office affixed, shall be evidence in all,
courts and places, in like manner as if the originals were produced.
Id.

Records May he Read in Emdenee.

Any act, ordinance, resolution, by-law, rule or proceeding of the common council
of a city, or of the board of trustees of an incorporated village, or of a board of su-
pervisors of any county within this State, and any recital of occurrences taking
place at the sessions of any thereof, may be read in evidence on any trial, exami-
nation or proceeding, whether civil or criminal, either from a copy thereof certi-
fied by the clerk of the city, village, common council or board of supervisors, or
from a volume printed by authority of the common council of the city, or board of
supervisors of the county, or of the board of trustees of any incorporated village.

Laws 1878, chap. 219, § 1, as amended by Laws 1879, chap. 211. See Code of Civil
Frocedure, § 941

Printed Proceedings, Duly Certified, When Evidence.

Whenever the proceedings of the board of supervisors of any county are printed
in a volume by authority of the board of supervisors, the volume so printed and
duly certified by the chairman and clerk of the said board of supervisors to be a.
true record of such proceedings, shall be and constitute the book of records' of the
said board.

Laws 1873, chap. 219, § 2, as amended by Laws 1884, chap. 327.

For Form of Certificate, etc., see " Certificate, " po«i.

§ 556. Under the Laws of 1858, chapter 190.
See Decisions at end of this section.

AN ACT to enlarge the powers of the Boards of Supervisors.

Witnesses may be Summoned by CJiairman of Board.

Section 1. Whenever the board of supervisors of any county shall deem it
necessary or important to examine any person as a witness, upon any subject or
matter within the jurisdiction of such board, or to examine any officer of the
county in relation to the discharge of his official duties, or to the receipt or dis-
bursement by him of any moneys, or concerning the possession or disposition by
him of any property belonging to the county; or to use, inspect or to examine any
book account, voucher or document, in the possession of such officer or other per-
son, or under his control relating to the affairs or interests of such county, the
chairman or president of such board shall issue a subpoena in proper form, com-
manding such person or officer to appear before such board at a time and place
therein specified, to be examined as a witness, and such subpoena may contain a
clause requiring such person or officer to produce on such examination all boolts,
papers and documents in his possession, or under his control, relating to the
affairs or interests of the county,

2 R. S. 934.



476 SuPEKVisoEs' Makcal.



Duty of Sheriff.

§ 3. It shall be the duty of the sheriff, or any deputy shenfi or constable of the
county, to whom the subpoena may be delivered, to serve the same by reading it
to the person named therein, and at the same time delivering him a copy thereof;
and his official return thereon of the time and place of such service shall be
prima facie evidence thereof.

Id. 935.

Committee, Power of.

§ 3. Whenever the board of supervisors shall have appointed any member of
their body a committee upon any subject or matter of which the board has juris-
•diction, and shall have conferred upon such committee power to send for persons
and papers, the chairman of such committee shall possess all the powers, and be
liable to all the duties herein given to and imposed upon the chairman or presi-
dent of the board of supervisors.

Id.

Persons Subpanaed.

% 4. Whenever any person duly subpoenaed to appear and give evidence, or to
produce any books and papers as herein provided, shall neglect or refuse to
appear, or to produce such books and papers, according to the exigency of such
subpoena, or shall refuse to testify before such board or committee, or to answer
any question which a majority thereof shall decide to be propbr and pertinent, he
shall be deemed in contempt, and it shall be the duty of the chairman of the
board or of the committee, as the case may be, to report the facts to the county
judge or to the judge of the supreme court, or of the superior court, or of the
court of common pleas of any of the cities of this State, who shall thereupon issue
an attachment in the form usual in the court of which he shall be judge, directed
to the sheriff of the county where such witness was required to appear and testify,
commanding the said sheriff to attach such person, and forthwith bring him
before the judge by whose order such attachment was issued.

Id.

AttachmetU,

I 5. On the return of the attachment, and the production of the body of the
defendant, the said judge shall have jurisdiction of the matter, and the person
charged may purge himself of the contempt in the same way, and the same pro-
ceedings shall be had, and the same penalties may be imposed, and the same pun-
ishment inflicted as in case of a witness subpoenaed to appear and give evidence
on the trial of a civil cause before a circuit or special term of the supreme court.
Id.

Board may Adjourn, etc.

§ 6. The board of supervisors and any committee appointed by the board with
power to send for persons and papers may adjourn from time to time, and such
committee may hold meetings in pursuance of such adjournment, or on call of the
chairman thereof, during the recess, or after the final adjournment of the said
board of supervisors; but whenever an attachment shall have been issued accord-
ing to the provisions of this act, and is not returned, such adjournment of the
board or committee at whose instance it was issued shall be to a time and place
certain, of which notice shall be given by the chairman to the judge before whom
the said attachment shall be returnable, and in such case, if the person against
whom it issued shall be arrested, he shall not be discharged from custody until
he shall have entered into a bond to the board of supervisors of the county, in
the penalty of two hundred and fifty dollars, with two sufficient sureties to be
approved by the said judge, with a condition that he will appear and submit to
an examination before such board or committee, as the case may be, at the time
•and place to which it shall have adjourned.

Id.



Powers and Duties of the Board. 477

Bonds.

, I 7. Such bond shall be filed in the office of the clerk of the county, and if
default shall be made m the condition thereof, it shall be the duty of the district
attorney of said county to sue for and collect the same, and the money when
received, and all moneys received for fines and penalties under and by virtue of
the provisions of this act, shall be paid into the treasury of the county for the
benefit of the poor of said county

Id.

Orders, Decisions, etc.

§ 8. All orders, decisions and judgments made and given in proceedings tinder
this act by any judge out of court or term, shall be in writing subscribed by him,
and shall be filed in the office of the clerk of the county where such proceedings
are had, and the clerk shall thereupon enter the proper and necessary orders and
rules, and such orders, decisions and judgments shall have the like force and
effect as if made and given by the court at a regular term or session thereof.
Id.

Power to Administer Oaths.

§ 9. The chairman of the board of supervisors, and the chairman of any com-
mittee of such board shall severally have power to administer oaths and affirma-
tions to witnesses to be examined before such board or committee, and every wit-
ness so examined shall be obliged to answer all sucb questions as he would be
held bound to answer in the same case in a court of j ustice according to the rules
of evidence; but the testimony of any witness examined under the provisions of
this act shall not be given in evidence or used against him, on the trial of any
indictment or criminal prosecution, other than for perjury committed on such
examination.
Id. 936.

Decisions undbr § 554.

Railroad commissioners appointed in Livingston county under Laws of 1868,
chapter 442, had no relation to the county and were in no respect subject to the
supervision and subordinate to its supervisors; the latter, therefore, had no juris-
diction to appoint a committee to ascertain who were commissioners of a town,
and such committee, if appointed, had no power to issue a subpoena to witnesses^
Matter of Bradner, 87 N. T. 171; affirming 22 Hun, S79, just below.

On November 18, 1879, the board of supervisors of Livingston county adopted
a resolution appointing a committee to inquire who were railroad commissioners
for the town of E., if any, with authority to send for persons and papers and take
such proof of the subject-matter as to them might seem expedient, and if it
appeared that any person or persons were reputed to be in occupation of such
office, to notify him or them to appear before the committee, and inquire when
and by whom, and for what term of office such reputed commissioners had been,
appointed. The relator, the supervisor of said town, who was appointed chair-
man of said committee, made an affidavit setting forth facts tending to show that
no railroad commissioner had been lawfully appointed for said town; that a tax
had been imposed upon it and collected, the proceeds of which it was his duty
as supervisor to pay to such commissioners, to be applied upon the principal and
interest of certain bonds issued by the town; that certain persons claiming, or
reputed, to act as such commissioners had been duly notified and summoned to
appear before said committee and produce certain documents, and that they had
neglected and refused so to do. ^eld, that as the proposed inquiry was not insti-
tuted to enable the board of supervisors instituting it to discharge any duty im-
posed upon it by law, or to enable it to look after the affairs of the county, or
protect its interests, and the commissioners were not officers of the county, neither
the board nor the committee had jurisdiction of the subject-matter of the proposed
inquiry, and that an attachment issued by a justice of the supreme court to com-
pel the attendance of witnesses who refused to appear before such committee and
be examined, was unauthorized.
Faulkner v. Morey, 22 Han, 879.



478 Supervisors' Manual.

In an action for false imprisonment and malicious prosecution, the defendant may
allege, in mitigation, facts tending to show that what he did was done without
malice, and that he had a right to suppose there was reasonable cause for his
action.

Eradnerv. Faulkner, 93 X. Y. 515.

This statute furnishes ample power to make investigation of the facts pertain-
ing to claims presented to the board.

People, exrel. Otsego Co. Bank, v. Supervisors, 61 N. Y. 401-8.

The power to compel witnesses to appear and testify is essential to the exer-
cise of this right of investigation; and is, therefore, possessed by legislative bodies.

Either board of the common council of the city of New York has a similar
power to institute an examination into any matters respecting which it is entitled
to legislate, or in respect to which it may be deemed advisable to apply to the
legislature of the State to act.

The act of 1855, chapter 30, empowers the judge to whom application is made
to compel a witness to testify before a common council, to do whatever a court is
authorized to do, upon the neglect or contumacy of a witness subpoenaed in a
proceeding pending in such court.

Investigations directed by a board of the common council are to be conducted
in general according to parliamentary law. They are subject in particular to the
following rules:

1. The examination of each witness must be confined to the subject under in-
vestigation.

2. A witness is not bound to answer any question where his answer would tend
to criminate or degrade him, unless the question is essential to the direct proof of
the matter under investigation.

3. If a witness objects to answer a question, the sense of the committee is to
be taken, and if a majority decide that the question is proper, it is the duty of
the witness to answer.

4. It is in the power, however, of the witness to refuse, for the committee have
no means to coerce him. And in case of a refusal, it is in the province of the
judge to whom application for an attachment (under the act of 1855) is made, to
determine whether the question is proper.

It is competent for either branch of the common council to institute an inquiry
into the state and condition of the police department, into any frauds or corrup-
tion in the conduct of it, and into the management of it generally.

Briggs V. Mackellar, 2 Abb. SO.

A judge of a superior court or court of general jurisdiction is not liable for a
judicial act in a matter within his jurisdiction, although the act is in excess
thereof.

Lange v. Benedict, 78 N. Y. 12.

As by the Penal Code (§ 724), it is declared that it does not affect " any power
conferred by law upon any public body * * * to impose or infiict punishment
for a contempt," the provision of the Revised Statutes conferring the power upon
either house of the legislature to punish as for a contempt, a witness refusing to
answer before it or before a committee in legislative proceedings (1 R. S. 154, § 13,
subd. 4), was not abrogated by the two provisions of the Penal Code, one (§ 69)
making such refusal a misdemeanor, the other (§ 719), declaring that offenses
specified in said Code, committed after its going into effect, must be punished ac-
cording to its provisions " and not otherwise."

So, also as by said Code (§ 677), it is declared that " an act or omission which is
made criminal and punishable in different ways by different provisions of law
may be punished under any one of those provisions, but not under more than one,"
the rule that no person can be punished twice for the same offense does not re-
quire the abrogation of said provision of the Revised Statutes.

The said provision and the subsequent ones providing for its enforcement are
not violative of the constitutional provisions declaring that no person shall be de-
prived of life, liberty or property, without due process of law; as, if those provis-
ions were within the power of the legislature to enact, proceedings under them
are " due process of law."



PowEiis AND Duties of the Board, 479

The legislature had power to euact said provisions; such legislation is not pro-
hibited or restrained by the State Constitution or the Constitution of the United
States, and except as thus limited, the State legislature possesses the whole legis-
lative power of the State.

Gilman v. McArdle, 99 N. Y. 463; see, also, People v. Sharp, 107 id. 427; Kilbourn
T. Thompson, 103 D. S. 176.

A county treasurer who appears before a committee appointed by the board of
supervisors of a county, in obedience to a subpoena issued by the chairman of such
committee, in accordance with the provisions of section 3 of chapter 190 of the
Laws of 1858, cannot be compelled to answer interrogatories concerning moneys
io his hands as county treasurer, when he claims that such answers might subject
him to criminal prosecution, or to a penalty or forfeiture.

The witness is exempt from answer because, by the Revised Statutes (vol. 3 of
6th ed. p. 671, § 171), and the common law, no witness can be required "to give
any answer which will have a tendency to accuse himself of any crime or misde-
meanor, or to expose him to any penalty or forfeiture . "

The act of 1858, under which these proceedings are had, does not prevent the
evidence to be given by the witness from being used by the governor for his re-
moval, and, therefore, the rule that a witness "is not bound to speak when the
answer may subject him to a forfeiture, or any thing in the nature of a forfeiture
of his estate or interest," applies and exonerates the witness from answering the
questions propounded.

Qucm-e, as to the constitutionality of the statutes conferring the power on
boards of supervisors or its committees to compel the giving of testimony.

See Matter of Pilsbury, 56 How. 290; Matter of Proceedings against Dickinson, 58.
id. 260.

The application for attachment against the superintendent of the Albany peni-
tentiary to compel him to give evidence and produce his books and papers before



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 51 of 96)