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 56 of 96)
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with the clerk," etc. Held, that the power conferred upon the trustees was " to
survey and determine " the boundaries of the streets, as the streets actually ex-
isted; to make a map of the streets as they actually found them, either by the
record, or as they had become settled and fixed by user in cases where no record
existed. That the word "determine," as used in the statute, was synonymous
with ascertain. And the act of the trustees in declaring that a fence in front of



504 SuPKRVisoEs' Manual.

the plaintifl's premises was an encroachment upon the street, and ordering its re-
moval, was not to be deemed a " judicial " act, and therefore conclusive upon the
question of the boundary of a street, and that the encroachment existed.

Held, also, that this power to "survey and determine" was given for the pur-
pose of perpetuating the evidence of the existence of a highway; and it could not
be held to authorize the trustees to take away a citizen's property; they mast
leave that untouched, it being protected by the law and Constitution, which they
could not subvert.

Marvin v. Pardee, 64 Barb. 354.

Under Subdivision 18.

Under the said Act of 1875 the board of supervisors has power to fix jail liber-
ties, as a purely administrative act, or by the exercise of its legislative functions,
as provided in section 1 of subdivision 18 thereof.

In acting upon the subject of the jail liberties, in the exercise of its adminis-
trative functions, the board is subject to the limitations contained in section 147
of the Code of Civil Procedure, and cannot establish liberties exceeding 500 acres
in quantity; but in exercising the legislative power conferred upon it by said sec-
tion of chapter 482 of 1875, it is not subject to the said limitations, and may es-
tablish jail liberties exceeding in extent 500 acres.

Roach V. O'Dell, 33 Hun, 320.
This act repeals, by implication, the prior statutes conferring power upon the
county court.
Id.

UndeT Svhdimion 20.

Upon the application of certain tax payers of the town of New Utrecht the
board of supervisors ordered a special town meeting " to consider and decide
the question of purchasing a site for a town hall." At a meeting held in pursu-
ance of this order, a resolution was adopted "That the question be deter-
mined by ballot of the votes of this town meeting, whether a site shall be pur-
chased for a town hall, and a building purchased or erected for such hall. * * '■

Upon the return of an afiBrmative vote on this resolution to the board of super-
visors, authority was given to the town to purchase the site and erect the hall,
and to borrow money for that purpose. Held, that the resolution adopted by the
town meeting was a suiBcieut compliance with the Laws of 1875, chapter 483, section
1, subdivision 20, empowering the board of supervisors to authorize any town,
when application shall be made thereafter by vote of a majority of the electors
* * * to purchase a site for a town hall, and erect a building thereon.

The power conferred by this section is not restricted by the Laws of 1847, chap-
ter 197, and Laws of 1849, chapter 157, authorizing thcerection of a town hall by
the said town, and limiting the amount to be expended therefor.

Bergen V. Gubna, lOHiin, 11, 12.

Under the Laws of 1875, chapter 482, section 1, subdivision 20, the board of
supervisors having ordered a special town meeting " to consider and decide the
question of purchasing a site for a town hall," a majority of the electors voting
at such meeting may vote for the purchase immediately; without first voting to
apply to the supervisors for authority.

Id. 11.

Under Subdivision 29.

The resolution authorizes the issue of short term bonds, none running longer
than six years and some only two, upon which to borrow money for the payment
of the awards. The proceeds of the loan were to be at once devoted to such
payment and the town to be reimbursed by the local assessments, and in case of
their deficiency, by general taxation. To efEect this result the resolution provides
" that any deficiency required to meet the principal and interest on said bonds
shall be made a tax on the real and personal estate of the town. " • * * Of
course it is not doubted that the State may confer, upon a municipal corporation,
the power to borrow money, if otherwise it did not exist. What it could itself
do in laying out, opening and grading streets and avenues, like the one in ques-



Powers and Duties of the Boaed. 505

tion, it could authorize the local legislature to do with all its own discretion. It
did confer such authority in broad and general terms by the act of 1875 and its
amendments. It transferred to the supervisors its own power and authority as to
a particular class of streets and avenues to fix a plan for their grades, to lay out,
open, grade, construct, close and alter any of them, to "provide" for the esti-
mate and award of damages, for an assessment on property benefited, for the levy-
ing, collection and payment of damages, and all other charges and expenses nec-
essary to be incurred. Control over the whole subject, legislative discretion as to
all incidents and details, and the mode of accomplishing the purpose, was thus
in the broadest and most general way conferred upon the supervisors. Provid-
ing for assessments for benefit and general taxation of the town for any possible
deficiency they could, as they did, and as was right and reasonable in the interest
of the land-owner, anticipate the slow collection of such proceeds by borrowing
the money needed for payment beyond the collections of the first thirty days, to
pay the awards, giving in exchange the obligations of the town running only for
the comparatively brief period of reimbursement. Reference is, however, made to
subdivision 39 of the act of 1875, which gives authority for the issue of long-term
bonds, not exceeding twenty years, for the purpose of building or repairing bridges,
purchasing turnpike roads or toll bridges, buying land for a town hall and con-
structing the same, and enlarging cemeteries, and it is argued that this grant of
authority excludes an intention to bestow it in other cases. These are special,
and to some extent unusual and extraordinary expenditures, as to which there
might possibly have arisen doubt whether the creation of a long-term bonded
debt was a necessary incident of a general grant of power. Practically the
town is authorized to incur the debt to the land-owners. It is made responsible
for its payment, and authorized to provide the necessary means, and through the
provision for a general tax, upon failure of the special assessments, becomes, as
to the land-owner, the real debtor. We think the grant of legislative power was
not exceeded by the act of the supervisors in providing, through a temporary
loan, for the prompt and immediate payment of the awards pending the ultimate
reimbursement by taxation.

Robert etal.y. Sadler et al., 104 N. T. 223-7.

Under Subdivision 34.

Boards of supervisors are, by Laws of 1885, chap. 439, empowered to estab-
lish fire districts in unincorporated villages, and to authorize such districts
to procure a supply of water, and to purchase apparatus for the extinguishment
of fires therein, under petition duly made and presented, and to provide for the
assessment, levy and collection of the cost thereof upon the districts. Held, that
under the powers thus given, a board of supervisors, on establishing such a dis-
trict, might authorize a contract for a water supply ; that such a contract having
been entered into, the board of supervisors who authorized it could not rescind it
without the consent of the other party; that provision having been made for the
assessment, levy and collection of the expenses under such contract, the party
lurnishing the water supply, according to its terms, was entitled to a writ of man-
damus to the board of supervisors directing such assessment, levy and collection.

People, exrel., v. Board of Supervisors, ION. Y. State Bep'r, 286,
Under Section 3.

Legislation by the supervisors under this act may be in the form of a resolution
reported by a committee and adopted by a vote of the board in passing on the
report.

People, ex rel. Masterson, v. Gallup, 12 Abb. N. C. 64.

If the board has no seal, the lack of a seal which the statute directs to oe affixed
to the certificate to the resolution does not impair its validity.

Id.

This case was reversed on another point.

Under Sections 3 and 4.

See "Committee on Legislation," jpo«<, and Decisions, § 3, just above.

64 '



506 ScPEBVisoBs' Makual.

Under Section 7.

A penalty cannot be raised hj implication, but must be expressly created and
raised by statute.

Fire Department v. Braender, 25 N. Y. Week. Dig. 163.

It is not tbe proper office of a writ of mandamus to restrain a party, claiming
to be a public officer, from exercising his office, or to enjoin one, claiming to have
been elected or appointed to an office, from qualifying.

The granting of the writ is, in general, discretionary; and where it is so, the
exercise of the discretion by the Supreme Court is not reviewable here.

People, ex rel., v. Ferris et al., 76 N. T. 326.

Among the rules adopted by the board of supervisors of Westchester county
was one providing that a motion for reconsideration might be made by any mem-
ber, but that no such motion should be in order unless made on the same day or
pn the next day following the decision proposed to be reconsidered, unless by
unanimous consent. On January 2, 1874, a resolution was ofEered in the board
appointing one Kinch its librarian. The resolution was amended by inserting
the name of the relator for that of Kinch, and as so amended, it was adopted. On
January 3, a motion to reconsider this resolution was parried; on January 4, the
resolution was reconsidered and lost; and January 7, a resolution appointing
Kinch librarian was adopted.

Held, that the board had power to reconsider and rescind the resolution by
which the relator was appointed its librarian, and to thereafter appoint Kinch to
that office.

People, ex rel., v. Mills, 82 Hun, 459.

Under Section 8.

The question in dispute was whether the board of supervisors of Queens
county could lawfully audit and allow a per diem allowance of $3 to mem-
bers of the board for committee work done by them, at times other than at
sessions of the board. The defendant claimed that they were authorized to make
such allowances, by section 8 of chapter 483, Laws of 1875, as amended by chap-
ter 257, Laws of 1876.

The court at general term said: "Chapter 97, Laws of 1881, prescribing
the compensation of supervisors, declares that no other compensation, fee,
charge or allowance of any kind shall be made to any supervisor for his ser
vices, and that any supervisor who shall receive or vote for any allowance in viO'
latiou of this section shall be gtiilty of misdemeanor. The effect of this section is
to repeal the provision of the law of 1876, by which supervisors were allowed paj
for services upon committee, even without the words of express repeal found^ in
the latter part of the section. Laws of 1883, chapter 58, does not authorize pay-
ment for services upon committees. It follows that the credit of the defendants
of $3 per day was illegal and void."

Boot V. Van Duzen, 82 Hun, 63.

Evidence as to a custom of the board of supervisors to allow its members $9
per diem, for services on committees, or to prove what such services were worth,
is not admissible in an action relating to such services. Laws of 1869, chap. 855,
§ 8, is conclusive as to their value.

Money fraudulently obtained by a supervisor, though voluntarily paid, may be
recovered back.

Supervisors of Richmond Co. v. Van CUef, 1 Hun, 454.

§ 560. Under the Laws of 1878, chapter 122 (Chautauqua
• county).

Protection, etc., of Bucks and Msh.

The board of supervisors of the county of Chautauqua are hereby authorized to
provide for the protection and preservation of ducks and fish in all waters within
the territorial jurisdiction of said county, and waters bordering on said county,
within the jurisdiction of the State, and to prescribe and enforce the collection of



Powers and Duties of the Boaed. 507

all fines and penalties for the violation of any laws or regulations they may maka
in lelation to the same.



All laws or parts of laws inconsistent with the provisions of this law as far as
they relate to Chautauqua county are hereby repealed.

2 R. S. 1045; Laws of 1878, chap. 122, §§ 1, 2.
This does not apply to Chautauqua lake.

Chap. SS6, Laws of 1885. See, also, chap. 247, Laws of 1886.

§ 561. Under the Laws of 18T9, chapter 275.

AN ACT to authorize boards of supervisors to appoint a commissioner or commis-
sioners to receive and expend any moneys heretofore set apart or appropriated
by any act or acts of the legislature of this State for highway or bridge pur-
poses, and not yet expended, and to legalize any such appointment heretofore^
made.

Oommisaioners to Expend State Appropriations for Bighmays.

Section 1. In any case where by any act or acts of the legislature of this State,
any non-resident highway taxes have been specially set apart or appropriated for
the construction or maintenance of any roads or bridges, and any commissioner or
commissioners appointed therefor, and where by reason of the expiration of the
official life of the commissioner or commissioners so appointed to receive, expend,
and account for said non-resident highway taxes, any balance or remainder so set
apart or appropriated has not been so received or expended, it shall be lawful for
the board of supervisors of the counties wherein said non-resident lands are situ-
ated to appoint a commissioner or commissioners to receive and expend any such
unexpended balance, under the same regulations and conditions for the faithful
performance of his or their duties as were provided for in said original act or
acts; and any act or acts of any board of supervisors appointing such commissioner
or commissioners in anticipation of the passage of this act are hereby ratified and
confirmed.

2 R. S. 951.

§ 562. Under the Laws of 1880, chapter 175.

AN ACT conferring additional powers upon boards of supervisors for the lay-
ing out highways through unoccupied and unimproved tracts of land.

What Boa/rds may BstaUish Highways, etc.
Section 1. The board of supervisors of any county in this State containing
more than three hundred thousand acres of unoccupied and unimproved forest
lands, in addition to the powers now possessed by said board, is hereby authorized
to establish separate highway districts in such county, for the purpose of laying
out and constructing highways through such unimproved and unoccupied tracts
of land in such county; such highway districts to be established upon the appli-
cation of the owners of more than one-half of the non-resident lands to be
included therein. Any highway district established under the provisions of this
act shall consist of contiguous tracts or parcels of land and may include within
its limits parts of one or more towns, and the same may be changed, altered or
abolished at any time by said board of supervisors. The said board of supervisors
shall have power to appoint a commissioner or commissioners to lay out and con
struct highways in any such district and to prescribe their powers and duties,
and may also direct the manner in which highway taxes shall be assessed, levied
and collected upon the lands embraced in any such district, and likewise the
manner of expenditure thereof. The said board of supervisors may also authorize
commissioners appointed under this act to borrow money on such terms as said
board shall direct, but not exceedmg the estimated amount of ten years' highway
taxes upon the lands embraced within the district in which such loan is author-
ized, and may, for the purpose of repaying any such loan, set apart and appropri.
ate the highway taxes upon lands in any such district for a period not exceeding
ten years from the time of making such loan.

Id. 952.



508 SuPERTisoRs' Manual.

§ 563. Underthe Laws of 1882, chapter 317.

AN ACT conferring additional powers on boards of supervisors.

May Avihorize State Road to he Altered, etc.

Section 1. The board of supervisors of any county may authorize and empower
the highway commissioners of any town to alter, discontinue, widen or narrow,
any road or public highway which shall have been laid out by the State withia
its boundaries, under the same conditions as would govern their actions in relation
to public highways that have been laid out by local authorities.

§ 2. This act shall take efiect immediately.

§ 564. Under the Laws of 1883, chapter 346.

AN ACT to provide for the construction, care, maintenance, preservation and
repair of public bridges over streams or other waters forming the boundary
lines of counties, and to apportion the expense thereof.

Section 1. Each of the counties of this State shall be liable to pay for the con-
struction, care, maintenance, preservation and repair of public bridges, lawfully
constructed over streams or other waters forming its boundary line, not less than
one-sixth part of the expense of such construction, care, maintenance, preserva-
tion and repair.

§ 2. It shall be the duty of the commissioners of highways of every town in
which a part of any such public bridge may be, to make and deliver to the super-
visor of said town, on or before the iirst day of November in each year, a state-
ment, in writing, containing a description of said bridge, the whole expense in
items incurred by said town during the year preceding for such construction,
care, maintenance, preservation and repair, the truth of which statement shall be
verified by the oath of one of said commissioners.

§ 3. It shall be the duty of the supervisor to whom such statement is delivered
to present the same to the board of supervisors of the county in which such town
is located, at its next annual session thereafter; and it shall be the duty of the
said board of supervisors to levy upon the taxable property of said county a sum
sufficient to pay such county's proportion of such expense, and the same, when
collected, shall be paid to the commissioners of highways of said town, to be applied
by them toward the payment of such expense.

§ 4. Should the board of supervisors of any county to which such statement is
presented consider it equitable and j ust that such county should bear a larger
proportion than one-sixth part of such expense, it may, in its discretion, levy a
larjjer amount on such county for such purpose, to be applied in the manner afore-
said, not to exceed, however, one-fourth part of such expense; but the whole
amount So levied for such purpose in any county in any year shall not be to exceed
the sum of five thousand dollars, nor shall the provisions of this act apply to any
such expense heretofore contracted.

§ 5. The intent and purpose of this act is to provide that the towns in which
any free public bridge over streams or other waters forming the boundary line of
counties may be located shall each pay not more than one-third part of such
expense, and that the counties in which such bridge may be located shall each
pay not less than one-sixth part thereof.

§ 6. The provisions of this act shall not apply to bridges between the county of
Westchester and the county of New York.

§ 7. All acts and parts of acts, so far as the same may be inconsistent with the
provisions of this act, are hereby repealed, but nothing herein contained shall
preclude any town from obtaining relief from counties for any such expense
already incurred under the provisions of law heretofore existing,

§ 8. This act shall take efiect immediately,

See Laws 1875, chap. 482, § 1, subd. i.



Powers and Duties of the Board. 509'

§ 565. Under the Laws of 1885, chapter 160.

AN ACT to provide for changing the site of county buildings.

Section 1. Twelve or more resident freeholders of any county may petition the
hoard of supervisors of such county for the change of site of any county buildinj^
or buildings. The petition shall describe the building or buildings the site of
which is sought to be changed, and the proposed site therefor. Such petition,
with a notice signed by the petitioners, to the effect that the petition will be pre-
sented to the board of supervisors of such county at the next annual meeting,
shall be printed at least once in each week for six successive weeks immediately
preceding such aanual meeting, in two newspapers of said county.

§ 3. If such petition and notice be presented to such board, with due proof of
their publication, such board may, in its discretion, entertain such petition; and
if two-thirds of all the members elected to such board vote in favor of a resolu-
tion for the removal of the site of the building or buildings described in such
petition to the site therein described, such resolution may be considered by the
next board of supervisors at their annual meeting; and if two-thirds of all the
members elected to such board shall also vote in favor of the resolution for such
removal, such last-named board shall direct that such resolution, together with a
notice that the question of such removal will be submitted to the electors at the
ensuing general election, be published in at least two newspapers, published in
said county, to be designated by such board, once in each week for six consecu-
tive weeks immediately preceding such general election. Such resolution and
notice shall be published accordingly.

t^ .3. The question of the removal of the site of such building or buildings shall
thereupon be voted upon by the electors at such general election. The ballots in
favor of such removal shall be in this form: " In favor of the removal of the site
of the " (giving the name of the building or buildings). The ballots against

such removal shall be in this form: "Against the removal of the site of the "
(giving the name of the building or buildings). If two-thirds of all the ballots
cast shall be in favor of the removal of the site of such building or buildings, the
proceedings of such board of supervisors shall be deemed ratified by the electors,
and the change of the site of such building or buildings shall be made subject to
the provisions of the nest section.

§ 4. Notwithstanding any vote by a board oi supervisors and the electors to
change the site of any building or buildings, as herein provided, the old site and
building thereon shall be continued and used until a new building or buildings
upon the new site have been provided and accepted by the board of supervisors.

§ 5. In any case where a special law shall have been passed, pripr to the pas-
sage of this act, providing for the purchase or sale of auy site, or the location,
erection, purchase or sale of any county building, or for the care and management
thereof, no action shall be had by any board of supervisors which shall interfere
with the full execution of such special law.

g 6. The counties of New York and Kings are hereby exempted from the pro-
visions of this act.

§ 7. All acts and parts of acts providing for the reifloval of the site of any
Bounty building or buildings are hereby repealed.

§ 8. This act shall take effect immediately.

§ 566. Under the Laws of 1886, chapter 173.

AN' ACT to empower the boards of supervisors of the several counties of the State
of New York to vote moneys for the erection, repairing or remodeling of monu-
ments to the veterans of the late war of the rebellion.

Section 1. The boards of supervisors of the several counties of the State of
New York are hereby authorized and empowered, by a vote of two-thirds of all
the members of such boards respectively, to raise and appropriate such moneys as
such board deem necessary for the erection, within their respective counties of
public monuments in commemoration of the veterans of the late war of the
rebellion, and for repairing and remodeling such monuments.

§ 2. This act shall take effect immediately.



510 SupEEvisoBs' Manual.

§ 56T. Under the Laws of 1886, chapter 355.

AN ACT increasing the legislative powers of boards of superrlsors.

Section 1. The boards of supervisors of the several counties of this State are
liereby authorized to make such regulations and requirements concerning the
keeping of poor accounts, and disbursements by overseers of the poor, and their
report to town auditors, and also concerning the keeping of poor accounts and dis-
bursements and the manner of auditing bills presented to them and their report 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 56 of 96)