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 53 of 96)
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PowEES AND Duties of the Boaed. 485

village, the consent of a majority of the trustees of such, village shall be necessary
for the action af supervisors of towns under said seotioTi, in a'iflitinn to the con-
sent of the commissioner or commissioners of highways, town clerk and justices of
the peace of such town.

Added by Laws of 1873, chap. 323 ; 2 R. S, 940.

Decisions, Undei:* Laws of 1869, Chapter 855.

Under Section 1.

Under section one of the act extending the power of boards of supervisors,
which confers power on said boards, with the consent of certain town of-
ficers, to authorize the borrowing of money on the credit of a town for the build-
ing and repair of roads and bridges, it is not essential that the town oiflcers named
should meet for the purpose of determining the amount to be borrowed, on the
lirst Monday of September; the provision of said section requiring a meeting on
that day in each year is directory merely, and it is sufficient, if a meeting is held
prior to the first Monday of October.

The provision of said section authorizing the board of supervisors to prescribe
the form of obligation to be issued for the loan, includes the naming of the town
officer who is to execute the obligation, and they may impose this duty upon the
supervisor of the town.

Where tho specified officers of a town have laet within the time limited by the
section and have determined tne amount to be borrowed, and the board of super-
visors have conferred the requisite authority to issue bonds of the town for the
amount, no subsequent meeting of said officers is necessary for the purpose of
authorizing or consenting to such issue.

Where a supervisor of a town is required by the board to execute the bonds, it
is no excuse for a refusal, that the certificate of consent required by said section
to be indorsed by the town clerk upon the bonds is not indue form; a proper
certificate can be added as well after as before the execution, and it is the duty of
the supervisor to see that any error is rectified.

Section 3 of said act provides for a different and distinct class of cases from
those provided for in section 1; and a supervisor of a town required to issue
bonds, under and in pursuance of section 1, is not justified in refusing so to do
because two-thirds of the members of the board ot supervisors did not assent to
the resolution authorizing the loan and directing suon issue, or because it did not
receive his affirmative vote, as required in cases included in section 3.
People, exrel. Atltinson etaL. <r, Tompkins, 64N. Tf. 63,

The board of supervisors of Queens county, by ordinance, directed the im-
provement of that part of Jackson avenue within the limits of the town of New-
town, in said county, in a certain manner and at an expense specified, the expense
to be assessed in certain proportions upon said town and the towns of Flushing
and North Hempstead, and the portion of the avenue so improved to be thereaf-
ter maintained and kept in order by those towns. The avenue in question was
an existing highway passing through said towns. In proceedings by certiorm-i,
instituted by a tax payer of the town of North Hempstead,. 7ie<d, that the board of
supervisors had power to pass the ordinance.

Under the act of 1869 (chap. 855, Laws 1869) "to extend the powers of boards
of supervisors, except in the counties of New York and Kings," which empowers
such a board, with the consent of town officers, to authorize the supervisors of
any town to borrow money on the credit of the town, "to build or repair any
road or roads, bridge or bridges in such town, or which shall be partly in such
town and partly in an adjoining town," and to prescribe the form of obligation to
be given for the loan, and to impose a tax on the town to pay the sum borrowed
(^ 1), and authorizes the board " to provide for the use of abandoned turnpike,
p^lank or macadamized roads, within any town, as public highways, and for the
improvement of any public highway laid out in pursuance of law, and for the
location, erection, repair or purchase of any bridge, except over navigable streams,
and for apportioning the expense of any road or bridge upon such towns as may
be just and for the borrowing of money by any town or towns, or by the county,
for the'purposes aforesaid" (S 2), a board of supervisors may, on its own motion,

486 SuPEKVisoEs' Manual.

under the spetfifio restrictions, provide for these public interests and apportion
the expenses upon one or more towns, "as may be just," although the expendi-
ture may be wholly within one town, but on a highway which is common to the
several towns.

It seems that, as far as practicable, matters specifically affecting the public in-
terests of a particular locality should be controlled by the local government, sub-
ject to such general regulations as may be necessary for the common good. The
legislature, however, unless restrained by constitutional limitations, may resume
powers delegated to towns, cities and counties, and assume the direct control of
matters pertaining to local government.

While the effect of the provision of the State Constitution (§ 18, art. 3) pro-
hibiting the legislature from passing any local or private bill " laying out, open-
ing, altering, working or discontinuing roads or highways," was to take away the
power it theretofore possessed to legislate in such matters, independent of the
local authorities, the provisions (§ 33, art. 3) authorizing it to enact general laws
conferring upon boards of supervisors " such further power of local legislation
as, from time to time, it may deem expedient," preserved the power to vest in
boards of supervisors within their respective jurisdictions the same powers in re-
spect to laying out, opening and working highways which it could no longer
directly exercise. The provisions do not abrogate the pre-existing power, but
simply transfer it to the local boards, in case the legislature shall so enact.

People, exrel., ». Supervisors, 112 N. Y. 5S5.

Under Hection 3.

A resolution, presented to the board of supervisors of Queens county, au-
thorizing the town of N. to borrow money to purchase, for public use, a plank-
road in the town, received the vote of a majority of the members present; the
chairman declared it lost, because it failed to receive a two thirds vote, and the
clerk recorded the ruling. JIdd, that a mandamus was properly granted, directed
to the chairman and clerk, requiring them to convene the board, and requir-
ing the chairman to declare the resolution carried, and the clerk to so record it,
etc. ; that, while the writ might have been directed to the board, it was not error
that it was not so directed; also held, that as the clerk in making the entry simply
acted in the performance of his duty to record correctly what took place, the
allowance of costs against him was error.

People, ex rel. Burroughs et al., v. Brinokerhoff, 68 N. T. 260.

The supervisors of a county, in executing the power conferred by the laws o{

Laws of 1S69, chap. 855, § 2.

to provide for the erection of bridges, etc., may appoint commissioners to carry
out the work.

Their erection of a bridge is not rendered illegal, by the fact that when deter-
mined on, there was no highway leading to its site.

People V. Meach, 14 Abb. N. S. 429. See 64 N. T. 53; 112 id. 585, just above.

Under Section 5.

Manifest Error.
See ante, 5 343.

Laws of 1871, chapter 695, amending chapter 8S5, section 5 of Laws of 1869
authonzmg the refunding to a person of "the amount collected from him of any
lax illegally or improperly assessed or levied," was intended to relieve persons, by
reimbursement thereof, from taxes which were not legaUy chargeable to them, or
on their property, i. e., from taxes which they should not be required in any
manner to pay. The act refers to the tax itself, rather than to the method of mak-
ing t/ie assessment or levy, to an illegal rather than to the erroneous assessment or
levg of a legal tax.

Harris v. Supervisors of Niagara Co., 33 Hun, 279.

PowEKs AND Duties of the. Board. 487

lUegaZ Tax.

Where the tax is clearly illegal and has been collected, the board should refund
the amount paid.

In re N. T. Catholic Protectory, 77 N. Y. 342; Williams v. Supervisors, 78 ;d. 561;
Ross T. Supervisors, 38 Hun, 20; In re Coleman, 30 id. 544; City of Rochester v.
Town of Rush, SON. Y. 302.

It requires a vote of two-thirds of all the supervisors elected to refund taxes
illegally or improperly assessed.

Van Antwerp v. Kelly, 50 Hun, 513.

and it seems a like vote is required under all the provisions of this section.

The county court has nothing to do with these cases under the present law.

It seems that even a clerical error, if it affects the svbstantial rights of a party,
will not be corrected by the courts without notice to him, and that for such full
and regular period as the law prescribes.

People, ex rel. v. Forrest et al., 96 N. Y. 554.

If the courts will not act in such, cases boards of supervisors may wisely follow
their example.

Under Section 6.
The act of 1886, under which the town of New Lots was made part of the city
of Brooklyn, provides, " that the several justices of the peace of said town, duly
elected, qualified and acting at the time this act shall take effect, shall continue
to hold their offices for the terms for which they were respectively elected." * * *
The act went into effect August 1, 1886. The relator was elected in April, 1886,
to fill a term, beginning January 1, 1887, qualified, and in January, 1887, per-
formed some services as such justice. In proceedings by mandamus to enforce a
claim for fees, rejected by the board of supervisors, held, that such claim was
properly rejected ; that it was within the power of the legislature to pass the
statute in question, and relator was thereby deprived of his office.

In re Gertum, lOa N. Y. 170.

The legislature cannot abolish the office of justice of the peace in towns, or
sho^en their terms of office so long as the town exists, but it has an unquestioned
right to alter or change the limits of their jurisdiction or abolish the town organi-
zation altogether, provided it be done in good faith and for proper constitutional


Justices of the peace are toton officers and have no existence as public officers
beyond town organizations.

InSoffmanr. Burton, the court says : "A justice of the peace is a county
officer, and process from his court runs into every part of his county."

47 Hun, 409.

Under Section 7.

Books, Records, etc.
The records of conveyances in the county clerk's office are not corporate prop-
erty of the county. The county clerk in keeping such records does not act as the
agent of the county.

The board of supervisors have no power in hostility to the clerk, to have in
dexes made of the records in the clerk's office;

People, ex rel. Welch, v. Nash, 3 Hun, 535.
nor has any other person.
99 N. Y. 620.

488 SuPEKVisoEs' Manual.

M or have they power to change the method of indexing deeds or mortgages,
prescribed by statute, or to transfer the duty or power of making the indices from
the county cleric to another person, or to interfere with the custody of the records
vested by law in the county clerk, by authorizing another to use the records for
the purpose of making indices.

Id. 62 N. Y. 484. See, also, 21 Dig. 366.

Where the board of supervisors, by resolution, authorized plaintiff, their county
clerk, tore-index the record of mortgages, etc., held, that an application for a
mandamus to compel the plaintiff's successor in office to allow plaintiff the use of
the records for that purpose, was properly denied; that when plaintiff ceased to
be county clerk, the duty of making indices, if necessary, devolved upon hw

Under Section 8.

See " Poor, Support of," and " Pay of Supervisors," § 8, chap. 482, Lawsof 1S75,
and Decisions thereon, post; also, "Fees, Supervisors',"' post.

Under Section 9.
An act giving to the board of supervisors of one county power to act in a special
mode is not necessarily repealed by a subsequent general act giving to all such
boards power to act to the same end in another and different mode.
People, exrel. Burroughs, v. Brinkerhoof, 68 N. Y. 259.

This section as amended by chapter 285, Laws of 1872, i% not affected by the
provisions of the act amended thereby (chap. 855, Laws of 1869), requiring a two-
thirds vote of the members elected to the board ; those provisions only relate to
the matters contained in the sections of which they form a part.

§ 558. Under the Laws of 1875, chapter 251.

See Decisions at end of this section.

AN ACT for the support and maintenance of prisoners confined upon civil


Sections 1 and 4 were repealed by Laws of 1877, chapter 416.

Supervisors may Contract with STieriffs.

% 2. The board of supervisors of the counties of this State are hereby
authorized and empowered to contract with the sheriff of said counties, or the
jailer of the common jail therein, for the support and maintenance of such persons
as may be confined in such jail upon any writ, process, or proceeding, as stated in
the first section of this act, and such sheriff or jailer shall attach to all bills ren-
dered for such support and maintenance, a list, under oath, of the number and
names of the persons to whom such support and maintenance was furnished, and
the length of time each person was so supported.

2 R. S. 940.

Not to Relate to Kings or Monroe.

§ 3. Nothing in this act shall be construed as repealing the present provisions
of law relating to the care, custody, support or maintenance of such prisoners in
the counties of Kings and Monroe.

In any county, if a prisoner actually confined in jail makes oath before the
sheriff, jailer or deputy jailer, that ho is unable to support himself during his
imprisonment, his support shall be a county charge.
Code Civ. Pro., §112.

Decisions under Section 556.

This section of the Code, added to section 5 of the act of 1875 (ante), created a
complete system and left the latter act the same in its substance and effect, as it

PowEKS AND Duties of the Board. 489

would have been if this section had not been inserted in the C!ode and sections 1
and 4 of act of 1875 had been unrepealed and continued in force.

People V. Bowe, 34 Hud, 528-31.

The authority given by section 3 of the act of 1875 was not taken away by the
repeal of sections 1 and 4, by chapter 417, Laws of 1877.

In the absence of such a statute, it seems, that the support of such prisoners is
not a county charge.

People, ex rel. Tracy, v. Green, 47 How. 382.

§ 559. Under the Laws of 1875, chapter 482.
See Decisions at the end of this section.

AN ACT to confer on boards of supervisors further powers of local legislation
and administration, and to regulate the compensation of supervisors

Purtlier Powers.

Section. 1. Further powers of local legislation and administration are hereby
conferred on the boards of supervisors in the several counties of this State, ex-
cept in cities whose boundaries are the same as those of the county, to make and
administer, within their respective counties, laws and regulations, as follows:
Id. 941.

Real Estate for Court-House, Offices, Jails, etc., to Borrow Money — Limitation on

Issue of Bonds.

1. To purchase or otherwise acquire, for the use of the county, real estate for
sites for court-houses, county clerk's oflBces and other buildings for county offi-
cers, and for jails and such other places of confinement as may be authorized or
required by law, for the safe-keeping and employment at hard labor of offenders,
and for the detention of witnesses, and of women and children held for trial for
oifenses when the punishment prescribed is imprisonment less than five years;
and also for establishments for the care of paupers, idiots, paupers incurably
insane, and other indigent persons for whose support the county shall be liable;
to erect, alter, improve, purchase and receive by gift, buildings for any of such pur-
poses, and to make such expenditures on account of such sites and buildings as
may be necessary, to borrow money on the county bonds or other county obliga-
tions, for a period not exceeding fifteen years, to be paid in annual installments,
for the purpose specified in this subdivision; but in all cases where a proposed
issue of county bonds shall, with the amount of bonds issued under any previous
authority, and still outstanding, exceed the sum of one hundred thousand dollars,
no additional issue shall be authorized except in the counties of Albany, Erie and
Kings, unless by the assent of a majority of all the electors of the county voting
on the question at any annual election, and subject to the conditions in this act
specified, to change the location of county buildings, and to sell or apply to other
county use the old sites and buildings in cases where the location may be so
changed, and if sold, to apply the proceeds toward the payment of obligations in-
curred for new sites and buildings, and in the case of a change in the location of
a county court-house, to make one or more jury districts and to make such regula-
tions in respect to the holding of the terms of courts as shall be necessary by rea-
son of such change.

As amended by Laws of 1881, chap. 570, tub nom. chap. 482, subd. 1, etc. For
changes in county buildings, see Laws of 1885, chap. 160, post. 2 R. S. 941,

To Fix Salaries of County Officers.

3. To fix, subject to the limitations of section 15, article 6, of the Consti-
tution, the salaries and per diem allowance of county officers whose compensation
may be a county charge, and which shall not be changed during the term of office
of such oiflcers respectively, and to prescribe the mode of appointment and fix

490 SuPEE visors' Manual.

the number, grades and pay of the deputies, clerks and subordinate employees in
such offices.

Supermsors Authorized to Change Location of Bridges, etc.

3. To authorize the location, change of location and construction of any bridge
(except on the Hudson river below Waterford, and on the East river, or over tfie
waters forming the boundaries of the State) which shall be applied for by any
town or towns jointly, or by any corporation formed pursuant to the general laws
of the State, or by any corporation or individual for private purposes; and in the
case of a public bridge erected by a corporation, to establish the rates of toll to be
collected for crossing such bridge. But in every case where any such bridge is to
cross a navigable stream of water, full provision shall be made in the resolution
or permission authorizing the same, for the erection and maintenance of a suitable
draw to prevent any impeding of the navigation of such stream of water, and in
the case of a private bridge, provision shall be made that the draw shall be kept
open as may be required to permit all vessels to pass without loss of headway.
Where any bridge shall be on a stream of water forming at the point of crossing
the dividing line of counties, the action of the board of supervisors of each county
shall be necessary to give the jurisdiction permitted by this subdivision. In case
any bridge (except on the Hudson river below Waterford, and on the East river,
or over the waters forming the boundaries of the State) shall have been, within
one year previous to the passage of this act, or shall hereafter be destroyed by the
elements or otherwise, and the expense of constructing a bridge on or so near the
site of the bridge so destroyed as to supply the public necessities occasioned by the
loss of the bridge so destroyed, with the necessary approaches thereto, cannot be
constructed at an expense which will not exceed double the sum now authorized
by law to be raised upon the taxable property of the town or towns within which
the bridge thus destroyed was situate, then and in that case the board of super-
visors of any county in this State (except the counties of New York, Westchester
and Kings) within which such bridge was situate, may, at their discretion, with-
out delay, provide for constructing and completing a bridge instead of the one
destroyed and all necessary approaches thereto, of durable material at the earliest
practicable time, on the site of the bridge so destroyed, and in case the bridge so
destroyed shall have been constructed by a corporation organized pursuant to the
general laws of this State, and the site upon which the same was constructed,
together with the approaches thereto, shall be the property of such corporation,
it shall be lawful for the board of supervisors of the county in which such bridge
was situate to purchase the right of such corporation, or the right of whomsoever
the site of said bridge and the approaches thereto may belong, provided such
purchase can be accomplished upon such terms as, in the judgment of the board
of supervisors, shall be just to the public and to its best interests. But if in the
judgment of the board of supervisors such purchase cannot be accomplished upon
reasonable terms, then and in that case the said board of supervisors are authorized
and it may acquire a valid title to premises on either side of the site upon which
said bridge stood when so destroyed, provided the title to the same can be ac-
quired upon reasonable terms as to price, and provide for the construction and
maintenance of a bridge and the approaches thereto upon premises other than the
site upon which the bridge so destroyed was located, provided the bridge to
be constructed can be so located outside of the old site as not to increase the
distance to be traveled to reach either end of such bridge more than five rods.
The construction and maintenance of such bridge and the approaches thereto
shall be at public expense and, when completed, shall be free for the use of the
whole public, and all persons may use the same as a public or common highway,
and the same shall be what is ordinarily understood lo be a free bridge subject to
the rights of the board of supervisors of the county in which said bridge is situ-
ate, and such board is hereby authorized to prescribe the weight that may, or may
nof, be carried over the same, and the rate of speed beyond which any animal
shall not be rode or driven, under such penalties for disobedience of the rules or
regulations prescribed by the board as said board may deem proper.

As amended by Laws of 1881, chap. 439. See Laws of 1883, chap. 346 ; 2 R. S. 941.

4. To apportion, as such board may deem equitable, the expense of the con-
struction of any public bridge (except in the cases specified in the last preceding

Powers and Duties of the Board. 491

subdivision) over a stream or other water forming the boundary line of counties
between the towns at such point, and in all cases, except as herein provided, such
counties shall each pay not less than one-sixth of the expense of such bridge and
to authorize any town, on the vote of a majority of the electors voting at any annual
town meeting, or any regularly called special town meeting, to appropriate such
a sum (to be raised as other bridge moneys are raised), or to pledge the credit of
such town in the manner prescribed by law, to wholly construct and maintain, or
aid in the construction and maintenance, of any bridge outside the boundaries of
the town or county, or from or within the boundary line of any town into another
town or county but forming a continuation of highways leading from such town
or county, and deemed necessary for the public convenience.

As amended by Laws of 1886, chap. 126. See Laws of 1883, chap. 346, post; 2 R. S.
942, <

Supervisors of Two Counties Authorized to Apportion Expense for Maintenance

of Joint Bridge.

5. To provide for the care, maintenance, preservation and reparation of any
draw or other bridge (except on the Hudson river below Waterford, and on the
East river, or over the waters forming the boundaries of this State), crossing a
stream which forms at the point of crossing the dividing line of counties or of
towns, and the maintenance, care and preservation of which bridge is by law a
joint charge on such counties, or on such towns, or on the towns in which such
bridge may be situated, and [to severally apportion, as such board may deem
equitable, the charge and expense for such maintenance, care, preservation and
reparation, on the towns respectively liable therefor, or on the respective counties
when liable ; but when such bridge shall span any portion of the navigable tide-

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 53 of 96)