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 52 of 96)
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such committee, he having refused so to do, is made upon certain provisions of
the Revised Statutes (pp. 879, 880 of vol. 1, 6th ed.), sections 44, 45, 46, 47 and 48
providing for the examination, by the board of supervisors, of any county, of any
officer of the county or any person or witness upon any subject or matter within
the jurisdiction of said board.

Seld, first. That the witness was not required to attend either by or before the
board of supervisors, or by or before any committee of such board. The commit-
tee before which the witness was summoned was not appointed by the board
of supervisors when convened as such, but was one appointed by "the board of
supervisors of the county of Albany and the mayor and recorder of the city of
Albany, in joint meeting" assembled. The application must fail because no com-
mittee of the board of supervisors, appointed by the board, nor any committee
consisting of supervisors only, appointed at a joint meeting, or anywhere, has re-
quired the witness' attendance before it.

Second. Even if the committee "in joint meeting," or the supervisors alone
who formed a majority of it, could be called a committee of the board of supervi-
sors, and the right to summon the witness be founded upon the clause in the
section of the statute (1 R. S. [6th ed.] 879, § 44), which provides for his ex-
amination " upon any subject or matter within the jurisdiction of such board,"
the application for the attachment must be denied, for the reason that section 4 of
chapter 153 of the Laws of 1844 places " the management and direction of the said
penitentiary, when completed * * * under the control and authority of the
said board of supervisors and the said mayor and recorder of the city of Albany ; "
and, therefore, the "subject or matter" is not " within the jurisdiction of such
board " of supervisors.

Third. He cannot be examined under the clause of section 44, giving the board
of supervisors or its committee the right to examine " any officer of the county,"
as he is no county officer.

Fourth. Nor can he be compelled, under section 44 to produce "any book, ac-
count, voucher or document " which such committee may need as "relating to the
affairs or interests of such county." Such book, account, voucher or document,
" must relate " to the affairs or interests of such county. Although, in some sense
the documents sought might be considered as relating " to the affairs or interests "
of the county of Albany, yet the better and safer construction seems to be, that
the limits upon the oral testimony apply to the written, and that the " affairs or



480 Supervisors' Manual.

interests " spoken of are those over which the board of supervisors, as such, exer.
cise control. The subject (convict labor in prisons) the board of supervisors, as
such, have no control over.

Held, further, that the application for an attachment against the superintendent
of the Albany penitentiary cannot be granted, for the reason that he has not been
subpoenaed by or before any board of supervisors, or by or before any committee
of such board, and also because even though the committee summoning him could
be called a committee of the board of supervisors, a case is not made out under
the statute.

Qumre, can the legislature confer upon the board of supervisors or a com-
mittee thereof, such general and sweeping powers as the statute in words seeks
to confer?

Matter of Pilsbury, 56 How. 290.

In March, 1875, a commission was created, by concurrent resolution of senate
and assembly, to investigate the affairs of the canals of this State. Upon the
hearing of an application for the discharge of a person committed by the com-
mission for contempt in refusing to produce before it certain books and papers, it
was insisted that such a commission could not be created by bill enacted by both
branches of the legislature and signed by the governor.

Held, that there was no clause in the Constitution expressly prohibiting the cre-
ation of a commission by concurrent resolution; and that, when not expressly
prohibited, the legislative power was unrestricted and unlimited.

The act (chap. 91, Laws of 1875) provided, that in case of the refusal of a wit-
ness to obey the subpoena, he should be brought before the commission by attach-
ment, and that " the like pvjceedings shall thereupon be had as if such commission
was a court of record and such witness had been duly subpoenaed to attend be-
fore it." Held, (1) that the act was not in conflict with the constitutional provis-
ion declaring that no person shall be deprived of life, liberty or property with-
out due process of law ; (2) that the act was not in conflict with section 17 of
article 3 of amended Constitution, providing that no act shall be passed which
shall enact that any existing law shall be deemed a part of or applicable to the
said act, except by inserting it therein; (3) that the said commission was em-
powered to issue subpoenas to enforce the attendance of witnesses and to compel
the production of books and papers, and to adj u dge any person willfully refusing
to produce such books or papers guilty of contempt, and to commit him therefor.

This clause of the Constitution, last mentioned, should receive a strict con-
struction.

People v. Learned, 5 Hun, 626.

§ 55T. Under Laws of 1869, chapter 855.

See Decisions at end of this section.

AN ACT to extend the powers of boards of supervisors, except in the counties of
New York and filings.

Boards of Supervisors may Authorize Towns to Borrow Money for Roads and
Bridges — Board of Supervisors to Prescribe Form of Obligation — Tax — Town Of-
ficers to Meet Annually to Determine Amounts, etc. — Certificate to be Indorsed
on Bonds — Town Clerk to Keep Record of Bonds — Bonds to be Delivered to Super-
visor — Proceeds, how to be Applied — Excess, hmo to be Applied.

Section 1. The boards of supervisors of each county in this State, except New
York and Kings, shall have power, at their annual meeting, or at any other regu-
lar meeting, to authorize the supervisor of any town in said county, by and with
the consent of the commissioner or commissioners of highways, town clerk and
justices of the peace of such town, to borrow such sum of money for and on the
credit of each town, not exceeding, however, in any year, the amount of one-half
of one per cent on the assessed valuation of the taxable property of the town for
such year, as the said town officers may deem necessary to build or repair any road
or roads, or bridge or bridges in such town, or which shall be partly in such town and
partly in an adjoining town, or to pay any existing debt incurred in good faith by
or on behalf of such town for such purpose, before the passage of this act; and
the said board of supervisors shall have power to prescribe the form of obligation
to beissued-on any such loan and the time and place of payment the time not to



Powers and Duties of the Bqabd. 481

exceed ten years from tlie date of such obligation, and the rate of interest thereon,
not exceeding six per cent per annum. And the said board of supervisors shall
have power and it shall be their duty from time to time, as the said obligations
shall become due and payable, to impose upon the taxable property of such town
sufficient tax to pay the said principal and interest of such obligations according
to the terms and conditions thereof. The town officers hereinbefore mentioned shall
meet at the town clerk's office in the town for which they are elected or appointed,
on the first Monday of March in each year at ten o'clock in the morning, to deter-
mine what amount, if any, shall be borrowed on the credit of such town for the pur-
poses contained in the first section of the act hereby amended, and for what roads
or bridges such amount shall be borrowed or appropriated, and for the same pur-
poses a meeting or meetings of the said officers may and shall also be held upon
the call of the town clerk, whose duty it shall be to call the same within one
week after the receipt of a written request of twelve tax payers of the town there-
for, and any such meeting may be adjourned from time to time, either for want
of a quorum or in default of any final determination of any question arising con-
cerning such appropriation, but no such meeting shall be held subsequent to the
first Monday of October in each year. The bonds authorized by this act shall
have indorsed thereon a certificate signed by the town clerk of the town for which
they are issued, to the effect that such bonds are issued with the consent of the
town officers herein mentioned, at a meeting the date of which shall be mentioned
in such certificate. The town clerk of any town on account of which such bonds
are issued shall keep a record showing the date and amount of such bonds, the
time and place when the same are made payable, and the rate of interest thereon.
Such bonds shall be delivered to the supervisor of the town, who shall dispose of
the same for not less than the par value thereof, and pay the proceeds thereof to
the commissioner or commissioners of highways of such town, to be used by him
or them for the purposes for which the same were appropriated; but not more
than five hundred dollars of such proceeds shall be expended upon any one road
or bridge except under and in pursuance of a contract to be made by the con-
tractor with the commissioner or a majority of the commissioners of highways of
such town for the construction or repair of such road or bridge, which contract
shall be approved by a majority of the town, auditors of such town, neither of
whom shall be interested in such contract. Any amount borrowed and appropri-
ated, pursuant to the provisions of this act, for the repair or construction of any
road or bridge in any town, and which it shall not be necessary to use for such
purpose, shall be applied by the commissioner or commissioners of highways to
the repair of any other road or bridge in such town.

As amended by Laws of 1882, chap. 250.

This act shall take effect September 30th, 1883.

See § 10 of this act; 2 R. S. 935.

Use ofAbandoTied Plank and Turnpike Roads — Improvement of Mighways — Erec-
tion, Repair and Purchase of Bridges — Borrowing of Money — Two-Thirds Vote
Requisite — Affirmative Vote of Resident Supervisor Requisite to Pass Special
Ordinance.

§ 2. Suoh boards of supervisors shall have power to provide for the use of
abandoned turnpike, plank or macadamized roads within any town as public high-
ways; and for the improvement of any public highway laid out in pursuance of
law; and foir the location, erection, repair or purchase of any bridge, except over
navigable streams; and for apportioning the expense of any public road or bridge
upon such town as may be just; and for the borrowing of money by any town or
towns or by the county for the purpose aforesaid; or for general purposes in an-
ticipation of taxation for such purpose authorized by law; but jurisdiction in the
cases aforesaid shall not be exercised without the assent of two-thirds of all the
members elected to such board, to be determined by yeas and nays, which shall
be entered on its journal, and no special ordinance, relating to any one town or
ward only, shall become operative unless it shall receive the affirmative vote of
the supervisor representing such town or ward.

2 II. S. 937. See chap. 435, Laws of 1876.

61



48a SuPEKVisoBS' Manual.

Sates of Toll upon Plank and Turnpike Hoods, and upon Ferries and Bridges ~
Notice of Application for Increase of Toll, to be PublisTied.

§ 3. Sucli boards of supervisors shall have power, by a like vote of two-thirds,
to authorize an alteration, reduction or change of the rates of toll charged op
received by any turnpike, plank or gravel road, or other toll road within such
county, or by any bridge company or ferry within such county, or, if within more
than one county, then by joint action with the supervisors of such counties, pro-
vided such alteration shall be asked for by the directors, trustees or owners of
such road, bridge or ferry; and provided further, that no increase of toll shall be
so authorized unless notice of intention to apply for such increase shall have been
published in each of the newspapers published in such county, once in each week
for six successive weeks next before the annual election of supervisors in such
county; and any alteration in rates of toll authorized by any board of supervisors
may be changed or modified by any subsequent board, on their own motion, by a
like vote of two- thirds of all the members elected to such board.

Id.

Town Meeting mag Vote Moneys for Soldiers' Monument — Vote of Majority of Tax
Payers Requisite Therefor — Action of Board of Supervisors Thereon — Moneys,
haw Expended — County Monuments — Power of Supervisors to Alter or BepeM
Action Thereon.

§ 4. It shall be competent for the electors of any town, at any regular town
meeting; or of any county at any regular election, to vote any sums of money to
be designated by a majority of all the electors voting at such town meeting or
election, for the purpose of erecting a public monument within such town, or for
the county as the case may be, in memory of the soldiers of such town or county,
or in commemoration of any public person or event; but no debt shall be created,
nor shall any tax be imposed on any town or county for such purpose, unless the
same shall have been voted for by a majority of the legal voters of the town or
county affected nor unless the object and expenditure shall be approved of by a
vote of two-thirds of the supervisors elected in such county. The board of super-
visors may legalize the vote of any town or county for such purpose; and after
such votOj they may raise or authorize the specified sum or sums of money to be
raised for such purpose in any of the modes provided for by law for raising
moneys for towns or counties. All moneys expended by any town, for the pur-
poses authorized by this section, shall be expended under the direction of the
supervisor, town clerk and justices of the peace of such town, or of a majority of
them, or by a commissioner or commissioners for that purpose appointed by such
town officers, or by a majority of them. If the monument to be erected shall be a
county monument, then the money to be expended therefor shall be under the
control of a commissioner or of commissioners appointed by the board of super-
visors to superintend the erection of such monument; and no town or county oHi-
cer or commissioner appointed or acting under this section shall receive any com-
pensation for services rendered thereunder as such officer or commissioner. The
board of supervisors of any county shall have power to alter, repeal or amend any
resolution or ordinance passed under this section, and to stay further expenditure
upon any monument within such county being erected at the expense of such
county or of any town or towns within such county.

Id. See Laws of 1886, chap. 173, post; Laws of 1888, chap. 2'J9: Laws of 1881,
chap. 226. *^ .

Informal Action of Tovm Meetings, and of Toirni Officers, liow Legalized — Correc-
tion of Error in Assessments, etc. — Appeals — Taxes so Refunded, Turn Appor-
tioned.

§ 5. The board of supervisors of any county, except New York, Kings and
Albany, may, by a two-thirds vote of all the members elected thereto, legalize
the informal acts of any town meeting in raising money for any purpose for which
such money is authorized to be raised by law, and by a like vote to legalize the
irregular acts of any town officer, performed in good faith, and within the scope of
his authority; and also, to correct any manifest clerical or other error in any
assessments or returns made by any town officer to such board of supervisors, or



PowEES AND Duties of the Boaed. 483

■which shall properly come before such board for their action, confirmation or
review; and it may refund to any person the amount collected from him of any
tax illegally or improperly assessed or levied. In raising the amount so refunded,
such board shall adjust and apportion the same upon the property of the several
towns and wards of the county as shall be just, taking into consideration the por-
tion of State, county, town and ward tax included therein, and the extent to which
each town or ward has been benefited thereby.

As amended by Laws of 1885, chap. 826.
A similar law for Kings county was passed in 1886, chap. 306, Laws 1886

BUU of Justices of Peace in Grirmnal Proceedings, What to Contain — Appeals from
' Action of Town Auditors in Auditing Justices' Bills ^ Decision of Board oj
Sutperviaors to be Mnal.

§ 6. The bills rendered by justices of the peace for services in criminal pro-
ceedings shall, in all cases, contain the name and residence of the complainant,
the oifense charged, the action of the justice on such complaint, the constable or
oflacer to whom any warrant on such complaint was delivered, and whether the per-
son charged was or was not arrested, and whether au examination was waived or
had, and witnesses sworn 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 certificate 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
shall be made 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 lim-
ited. The said supervisors shall thereupon audit the accounts of such justices
of the peace, and their decision in the auditing and allovring of said account
shall be final.

As amended by Laws of 1871, chap. 274.

Cliarge of Books and Records of County — Copying of Records by County Clerk,
Surrogate, etc. — Payment Therefor — Judge to Order and Approve of Work.

§ 7. Such boards of supervisors shall have, subject to the legal rights of the
■oflScers using the same, the general charge of the books and records of the county,
and shall provide for their safe-keeping. They may authorize any county clerk,
surrogate or other county officer having the official custody or control of any such
books, or of any records, maps or public papers, to cause copies thereof to be
made and certified for the public use, and it shall be their duty to cause such
copies to be made, whenever, by reason of age or exposure, or any casualty, the
same shall be necessary for the public service, and the said board of supervisors
are authorized to cause any officer making such transcripts or copies by their order
for the public use to be paid such sum therefor as may be just, but which in no
case shall exceed a sum to be certified by the county court as reasonable for the
service rendered. And the said supervisors shall not accept and pay for any ser-
vice rendered under this section until the work shall be examined and approved
of as to its manner and form of execution by the county judge or by a justice of
the supreme court of the district; nor shall any board of supervisors order any
such work to be done until the county judge or such justice of the supreme court
shall, after an examination, certify that such work is necessary for the security
and safety of the public records.

2 R. S. 939. For New York county, see chap. 67, Laws of 1883.

Auditing of Accounts of Superintendents of the Poor, etc.-^ Compensation of Super-
visors During Sessions of Boards. i

§ 8. Such boards of supervisors shall have the power, and it shall be their duty,
to audit the accounts of the superintendents of the poor of the county, and to
examine the accounts of subordinate county officers; and each supervisor, whose
•compensation is not specially provided for by law, shall be entitled to charge and
receive three dollars per day for each full day's> services during the sessions of



484 SuPERYisoBs' Manual.

the board besides mileage now allowed by-law; but such supervisor shall not be
entitled to receive any other compensation whatever, except as the same is spe-
cially provided for by law.
Id.
See "Poor, Support of," post.

J) or pay ot supervisors, see Laws of 1875, chap. 482, § 8 ; as to auditing accounts
of superintendents of the poor, see Laws of 1886, chap. 355.

On Written Application of Town Officers, Queens County Board of Supervisors may
Autlioi-ize Supervisor of Town to Borroio Money to Lay Out, etc. , Roads — Tax to
lie Imposed to Pay Principal and Interest as it Falls Due — Proceedings to Pur-
chase Toll Roads, etc. — Notice to be Published.

% 9. The board of supervisors of Queens county, in addition to the powers con-
ferred by the first section of this act, shall have power, at any meeting of which
notice is given as hereinafter provided, to authorize the supervisors of any town
or towns in such county, on written applications of the supervisor, town clerlt,
justices of the peace and commissioners of highways, or a majority of them, of
such town, or if more than one town is affected thereby, then of said officers, or a
majority of them, of each of such towns, to borrow such sum of money for and on
the credit of such town or towns as the said town officers may deem necessary to
lay out, build, widen, grade, macadamize or repair any road or roads, or to pur-
chase, for public use, any plankroad, turnpilie or toll road or toll bridge in such
town or towns, or to pay any existing debt incurred in good faith by or on behalf of
such town, for such purpose before the passage of this act; and the said board of
supervisors shall have power to prescribe the form of obligation to be issued
on any such loan, and the time and place of payment, the time not to exceed ten
years from date of such obligation, and the rate of interest thereon not exceeding
seven per cent per annum. And the said board of supervisors shall have power,
and it shall be their duty from time to time, as the said obligations shall become
due and payable, to impose npon the taxable property of such town sufficient tax
to pay the said principal and interest of such obligations according to the terms and
conditions thereof. In case the bridge or road so laid out, built, widened, graded,
macadamized or repaired shall ba situated in two or more towns in said county,
then the said board of supervisors shall have the power to apportion the expense
thereof among- such towns in such proportions as may be just. If in the case of
the building, widening or improving any road, or of the purchase for public use
of any toll road or toll bridge, the supervisors of the town or towns in which such
road is located shall not be able to agree with the owners of the land required for
such improvement or of such toll road or toll bridge, as to the price to be paid there-
for, then the board of supervisors of the county shall have power to apply to the
supreme court of the judicial district in which said county is situated, for the
appointment of three commissioners to appraise and determine the value of the
land so required, or of such toll road or toll bridge. Such application and appoint-
ment shall be made as in proceedings by railroad corporations to acquire title to
real estate under existing statute, and the commissioners so appointed shall act
and make report, and the owners of such lands or roads or bridges shall have
similar right of appeal, and all incidental proceedings shall be conducted as in such
railroad proceeding. When the value of said lands or roads or bridges shall in such
manner have been finally determined, the said lands or roads or bridges shall vest
in the town or towns in which they are respectively located, upon payment by said
town or towns of said determined value, to the owners thereof, within six months
after such final determination. Upon receiving the written application of town
officers hereinbefore mentioned, the said board of supervisors shall publish a
notice in every newspaper published in the town or towns affected by such appli-
cation, which notice shall contain a copy of such application and shall name a.
time and place when and where said board will meet to consider such application.

Added by Laws of 1872, chap. 285.

When Consent of Trustees Micst be Obtained.

§ 10. In case the road or roads, or bridge or bridges, referred to in the first sec-
tion of this act shall be wholly or partly within the limits of any incorporated



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 52 of 96)