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 59 of 96)
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The provisions as to New York county are omitted.

The authority to erect or rent an armory is devolved upon the BupervisorB only
where a proper demand Jb made on them under the Military Code. They cannot
exercise the power simply upon their own resolution.
Ford V. Mayor, 68 N. Y. 640.



BOAED OF SUPERVISOKS — MISCELLANEOUS DUTIES. 529

The demand for an armory or drill- room must particularize the troops for which
it is required

Dickelv. Mayor, 6 Hun, 249.

Control of Armories. — Sucli armory, when erected or
rented, shall be under the control and charge of the commanding
officer of the regiment, battalion, troop, battery or company for
which it has been provided ; and such commanding officer shall de-
posit therein all arms, uniforms and equipments received from time
to time, for the use of his regiment, battalion, troop, battery or
company. The chiefs of the general staff departments of the State,
and division and brigade commanders and their respective staff
officers shall at all times have access to such armory whenever, in
their judgment, the exigencies of the service may require it.

Id., §63.

§ 605. Armorer, Janitor and Eng-ineer, Ap-
pointment of.

§ 64. The commanding ofBcer of each regiment, battalion, troop, battery or
company shall appoint an armorer who shall, under his direction, take charge of
the armory or places of deposit of his regiment, battalion, battery or company,
and of all uniforms, arms, equipments and other property which shall have been
issued under the provisions of this act therein deposited, and to discharge all
duties connected therewith as shall be, from time to time, prescribed by such
commanding ofBcer. Where two or more companies, vrith or without a battery
or batteries, are quartered in the same armory or arsenal, there shall be but one
armorer for all such organizations, who shall be appointed by the senior line offi-
cer therein quartered. In the several cities of the State, the senior line officer
occupying any armory or arsenal may also appoint a janitor whose special duty
shall be to care for said armory, the repair and cleanliness of the same, and the
furniture and fixtures; and in armories or arsenals heated by steam, he may ap-
point an engineer to have charge of the heating apparatus. If less than eight
companies, or companies and batteries, are quartered in the same armory or
arsenal, but one janitor shall be so appointed, who shall also have charge of the
heating apparatus. Such persons so appointed shall receive a compensation not to
exceed $4 per day for the time actually and necessarily employed in their duties
in armories located in the various cities, unless the city has a population of less
than two hundred thousand, in which case such compensation shall be $3 per
day, and $2 per day in the armories not located in cities; which compensation, as
certified to by the commanding officer appointing such persons under the provis-
ions of this section, shall be paid monthly, and shall be a county charge upon the
county in which said armory is situated, and shall be audited, levied, collected
and paid in the same manner as other county charges are audited, levied, collected
and paid.

Id., § 64, as amended by Laws 1886, chap. 412.

The board of supervisors have no discretion, nor jurisdiction, to audit or review
the amount of compensation so certified ; they have no other duty in reference
thereto, except to cause the amount to be levied, collected and paid like other
county charges.

An allowance for Sundays necessarily employed in caring for the armory is not
prohibited nor condemned by the statute, and the supervisors have no authority
to deduct such allowance.

People, exrel. Arohambault v. Supervisors, 91 N. T. 672.

67



530 Stjpeetisoks' Manual.

The relator was entitled to the payment, monthly, of a per diem compensatioQ
of $3 per day for Ms services, as janitor of the armory of the city of Kingston.
No provision having been made by the board of supervisors for these payments,
he discounted his claim at a bank, paying therefor, in all $42.50. Seld, that the
discount allowed the bank was not a county charge, and that an application for
mandamus to compel the board to allow the claim, was properly denied.

People, ex rel. Johnston, v. Supervisors, 43 Hun, 386.

§ 606. Enrolled Militia. — Whenever the commander-in-
chief deems it necessary, he may order an enrollment of all persons,
other than members of the national guard, liable to military duty, to
be made by persons by him designated. Such enrollment shall state
the name, residence, age and occupation of the person enrolled.

One copy of such enrollment is filed in the town or city clerk's
office, and one in the county clerk's office, one in the adjutant-gen-
eral's office and one kept by the enrolling officer.

Laws of 1883, chap. 299, § 3.

§ 607. Duty of tlie Supervisor.— Whenever it shall
be necessary to call out any portion of the enrolled militia, other
than the national guard, for active duty, the commander-in-chief shall
direct his order to the mayor of any city, or to the supervisor of any
town, who, upon receipt of the same, shall forthwith, and shall
then and there proceed to draft as many of the enrolled militia in
their city or town, or accept as many volunteers, as are required by
the commander-in-chief, and shall forthwith forward to the com-
mander-in-chief a list of the persons so drafted or accepted as volun-
teers.

Id., § 80. ■

§ 608. Compensation of National Guard.— All

officers and enlisted men of the national guard, while on duty or as-
sembled therefor, pursuant to the order of the sheriff of any county,
or the mayor of any city, in cases of riot, tumult, breach of peace,
resistance to process, or whenever called upon in aid of the civil au-
thorities, shall receive the compensation provided by section 92 of
this act ; and such compensation, and the necessary expenses in-
curred in subsisting, quartering and transporting the troops, shall be
audited, allowed and paid by the supervisors of the county where
such service is rendered, and shall be a portion of the county charges
of said county, to be levied and raised as other county charges are
levied and raised.

Id., §96. See ^orf, "Fees."

The enrolled militia seem to be entitled to the same pay as the national guard.
Id., § 11.



BOAKD OP SUPERVISOBS — MISCELLANEOUS DUTIES. 531



DUTIES RELATIVE TO ASSEMBLY DISTRICTS.

§ 609. The number of assemblymen for each county is deter-
mined by the legislature, after every census, under certain restric-
tions. After the number is apportioned, the legislature prescribes,
in counties having more than one assemblyman, that the board
of supervisors divide their counties into a proper number of
districts.

This is done aft&r every census is taken. No duty relative to this subject is
now necessary and none will be necessary until a new census is taken, when a new
law will have to be enacted by the legislature to govern the board in the matter.



DUTIES RELATIVE TO GAME AND FISH.

§610. POTVer of Supervisors — The board of super-
visors are given powers under various statutes, as follows :

Under Cliapter 194, La-vrs of 1849.— To make

such laws and regulations as they may deem necessary and provide
for the enforcement of the same, for the destruction of wild beasts,
thistles and other noxious weeds, to prevent the injury and destruc-
tion of sheep by dogs, and to levy and enforce the collection of any
tax upon dogs and to direct the application of such tax, and to pro-
vide for the protection of all kinds of game, of shell and other fish
within the waters of their respective counties, and all laws of this
State now existing in relation to preserving or destroying, killing
and taking wild beasts or birds, fish, eels, and shell fish are hereby
repealed, such repeal to take effect on the first day of January in
the year 1850.

Chap. 194, Laws of 1849, § 4, subd. 13.

The above was adjudged constitutional, that it was not necessary
to limit the penalties ; the board of supervisors should provide for
the violation of laws they should enact.

Smith V. Levinus, 8N. T. 472. See, also, Hallock v. Downing, 69 id. 238; HortOn
V. Downing, 85 id. 642.

Under the act of 1875, they are empowered to provide
for the protection and preservation, subject to the laws of this State,
of game, animals and birds, and of fish and shell fish in all the
waters within the territorial jurisdiction of the county, and to pre-
scribe and enforce the collection of penalties for the violation of any



532 SuPEKVisoES' Manual.

laws or regulations they may make pursuant to the provisions of
this subdivision;

Laws of 1875, chap. 482, 8 1, subd. 16.

except as to Chautauqua lake ;

Chap. 556, Laws of 1885.

and certain game in Chautauqua county.

Chap. 24T, Laws of ^886.

Under tlie La-ws of 1879 (The Game Law).—
It shall be lawful for the board of supervisors of any county, at their
annual meeting, to make any regulations or ordinances protecting
other birds, fish or game than those mentioned in this act ; and, also,
for the further protection of such birds, fish or game as are in thia
act mentioned, except wild deer, and to this end to prohibit hunting
or fishing in particular localities or waters lying within their respec-
tive counties for limited periods and during certain months of the
year, and to prescribe punishments and penalties for the violation
thereof, and adopt all necessary measures for the enforcement of such
punishment and the collection of such penalties. And such regula-
tions and ordinances shall be published in the papers in such county
in which the session laws are published, and a certified copy thereof
shall be filed in the office of the clerk of the county ; Provided,
however, that nothing herein contained shall be construed as con-
ferring upon the board of supervisors of any county the right or
authority to prohibit the owner or owners, in whole or in part of lands
and waters whoUy private, or the lessee or lessees thereof, whether
such owner or owners, lessee or lessees be an individual or indi-
viduals, association or associations, society or societies, corporation
or corporations, from anghng and taking fish in lawful manner
during the months now allowed by the laws of this State. This act
is intended to apply only to such owner or owners, in whole or in
part, of lands and waters, or the lessee or lessees thereof who shall
have compHed with the provisions of the Laws of 1879, chapter 534,
§ 27, and the acts amendatory thereof.

Laws of 1879, chap. 534, as amended by Laws of 1884, chap. 212, $ 87.

The birds, fish and game mentioned in these acts are wild deer, moose, cariboo,
■wild duck, goose or brant, partridge, prairie chicken, quail, hare, rabbit, wood-
cock, grouse, eagle, woodpecker, nighthawk, yellowbird, wren, marten, oriole,
robin, bobolink or any song bird, meadow lark, starling, wild pigeon, trout, bass
and muscalonge, and black and gray squirrels.

The board are also authorized to raise by tax such sum, not exceeding $1,000,
as they deem proper to aid in enforcing the provisions thereof.



BoAED OF Supervisors — MisoELLANEODS Duties. 533
§ 611. May Authorize the Election of a Game

Constable. — The boards of supervisors of the several counties
of the State (except Kings county, where the board appoint a game
constable for the entire county), may, by the afBrmative vote of a
majority of the members elected, at a regular meeting of such boards,
respectively, authorize the election in each or any of the towns or
cities of their respective counties of one or more officers to be desig-
nated the game constable, to be chosen at town meetings as other
town officers are chosen, and hold office for the term of one year.
His duties are specified in the act.

Id., §38.

Fines, Penalties, etc. — All fines recovered under the
game law (act of 1879) shall be paid over by the court receiving
the same to the county treasurer wherein the offense was committed
(except in New York county), and such moneys shall be kept by
fiuch treasurer as a separate fund to be applied to the enforcements
of the provisions of said law in such manner as the board of super-
visors may direct, either for the employment of special detectives or
the payments of rewards for the detection and arrest of offenders.

Id"., §35.

Penalties recovered and collected in actions brought oy the dis-
trict attorney under this act, belong one-half to the person giving ,
information on which the action is brought, and the other half shall
be paid to the county treasurer of the county in which the action is
brought.

Id., §§33,41.

But in actions brought under chapter 577, Laws of 1888, by the
district attorney, on the order of any game and fish protector, the wit-
nesses' fees and disbursements shall, on the district attorney's requi-
sition, be advanced by, and aU moneys, except costs, which shall
belong to the district attorney, recovered in an action, and all fines
received shall be paid to the county treasurer ; one-half of all mon-
eys thus paid into the county treasury, over and above the
amount necessary to reimburse the county for any outlays or
expenses paid out by the county treasurer, shall be paid, on or be-
fore the 30th of September in each year, into the State treasury,
the remaining half to belong to the " Protector " who brings, or
causes to be brought, the action or proceedings, and shall be paid
within thirty days after the same are received.

Chap. 577, Laws of 1888, § 4.
See Decision in notea to this section.



634 SuPKKvisoES' Manual.

" Any net, pound or other means or device for taking or captur-
ing fish, or whereby they may be taken or captured, set, put, floated,
had, found or maintained in or upon any of the waters of this State,
or upon the sliores of, or islands in, any waters of this State, in vio-
lation of any existing or hereafter enacted statutes or laws for the
protection of fish," is hereby declared to be, and is, a public nui-
sance and may be abated and summarily destroyed by any per-
son ; and it shall be the duty of each and every protector and
of every game constable to seize and remove and forthwith
destroy the same, and the expense of any seizure, removal and de-
struction of such net, pound or other means or device as aforesaid,
shall be a county charge against the county in which the same shall
have been so seized, and shall be paid as other county charges are
paid, on the certificate, which shall be final, of such protector, which
certificate shall state the time and place of such seizure and destruc-
tion, the names of the persons emplo3'ed therein, the time spent
thereabout, and the money advanced, if any, and to whom, and shall
be verified by the oath of such protector or person as aforesaid mak-
ing such seizure and destruction ; and no action for damages shall
lie or be maintained against any person, for or on account of any
such seizure or destruction.

Chap. 591, Laws of 1880, § 2, as amended by chap. 817, Laws of 1883.
This act held constitutional, Lawton v. Steele, 6 N. Y. Supp. 15.

Duties of Protectors to Enforce LaTrsof tlie
Boa/rd. — It shall be the duty of the game and fish protectors to
enforce the laws of the State and the provisions supplementary
thereto, made by any county board of supervisors for the protection
of game and fish.

Part of i 2, chap. 577, Laws of 1888.

Game constables, constables, sheriffs and deputy sheriffs shall
have the same powers as are conferred upon game protectors for the
enforcement of the provisions of chapter 534, Law? of 1879, and
the amendments thereto, and shall be entitled to the same fees there-
for.

§ 2, chap. 429, Laws of 1886.

Expenses, etc., -vrhen County Charg'e.

See " County Charges," § 497, ante.

In order to aBcertaiu the sum, to one-half of which the protector was entitled
the disbursements properly incurred must first be deducted 'from the amount



Board of Sdpekvisohs — MisoELLANEOtrs Duties. 535

collected ; sucli disbursements being those only which were intfarred in the ac-
tions in which the money to be divided was recovered.

That these questions were to be determined by the county treasurer and not by
the district-attorney, and that relator was entitled to a certificate of the district
attorney as to the actions, other than those recovered by indictment, in which the
moneys in question had been recovered.
In re Koberts v. Hatch, 40 Hun, 53.

An action to recover penalties may, upon request of the protector, be brought
by any district attorney where the offense was committed in his county or the ad-
joining county.

People y. McDonald, 44 Hun, 592.

MISCELLANEOUS.

§ 612. Poorer to Accept Donations.— A board of
superYisors had powers given to them, by an act of the legislature,
to appoint three building commissioners to locate and erect county
buildings, at a place specified, who should have authority to consider
donations of land and money, in determining the location. By
their resolution appointing commissioners, they directed the commis-
sioners to select and procure the title to a proper site, for a sum not
exceeding $1, and to proceed and erect the buildings thereon, but
neither to obtain the title, nor take any binding steps until secu-
rity should be given, by a bond of individuals and otherwise, guar-
anteeing payment for the erection of the buildings without expense
to the county. Held, that the power to accept donations of money
was vested in the supervisors, by whom provision for supplying the
means for erecting the buildings had to be made, and not in the
building commissioners ; and that a bond, given as security for the
payment of donations, under the resolution, was within the policy
of tho law, and valid. And the building commissioners having pro-
ceeded, according to the terms of the resolution, to locate, erect and
furnish the county buildings, in part upon the faith of a bond given
to secure the payment of money promised in that respect ; held,
that such bond was founded upon sufficient consideration.

Marsh v. Chamberlain, 2 Lans. 287.

The board of supervisors of a county is competent to take and hold for the
county an absolute fee in lands acquired for the site of county buildings.
Trustees of Havana v. Supervisors of Schuyler, 5 T. & C. 703.
Or to lease real estate when needed.
Davies v. Mayor, 83 N. T. 207.

See, as to power to acquire real or personal estate, etc., the decisions under
§ 544, ante. ' '



536 SuPBRTisoEs' Manual.

§ 613. May not in Ordinance Discriminate
Against Inhabitants of Other Localities.— It

shall not be lawful for the authorities of any county, city or village
to impose upon the inhabitants of any other county, city or village
•within this State, carrying on or desiring to carry on any lawful
trade, business or calling within the limits thereof, any restriction or
condition whatever, except such as may be necessary for the proper
regulation of such trade, business or calling, and such as apply
equally and impartially to the citizens of all parts of the State alike,
and all ordinances in violation of the provisions of this act are
hereby declared to be null and void. But the provisions of this act
shall not apply to the ordinances or regulations of any county, city
or village in this State, in reference to traveling circuses, shows and
exhibitions.

Laws of 1878, chap. 212, as amended by Laws of 1879, chap. 417.

§ 614. Attorney may be Employed by Super-
visors. — The board of supervisors have the right to employ an
attorney to assist or advise them in the discharge of their duties, or
in prosecuting or defending actions in which they are parties. His
compensation is a county charge.

Gillespie v. Broas, 23 Barb. 371.
See ante, §§ 509-513

§ 615. Fewer to Substitute Attorney.— A party
has no right, without showing any cause except his own will, to
substitute one attorney for another without payment of the costs
earned. And this rule applies to a board of supervisors.

Supervisors of Ulster v. Brodhead, 44 How. 411.

Where a board of supervisors, by their vote, discharge a firm of
attorneys who have been acting in their employ, merely because the
board chooses to do so, with a view to substitute another attorney for
the board, they must pay the firm their reasonable claims, which
may be ascertained by reference. And such attorneys are not bound
to consent to a substitution, or to deliver the papers upon which
they have a lien, until the amount of their just demands is ascer-
tained by the court or a referee and paid them.
Id.

To Submit to Arbitration Claims.— It seems that
the board of supervisors has power to submit to arbitration the
validity and reasonableness of a claim made against the county.

People, ex rel. Beuedict, v. Superrisors, 24 Hun, 414.



BoAED OF Supervisors — Miscellaneous Duties. 537

§ 616. May Compromise Judg'ment.— County su-
pervisors may compromise and settle a judgment recovered by them
for the county, pending an appeal therefrom.

The power is incident to the power to sue, and so arises from their
authority " to make such orders concerning the corporate property
as they may deem expedient."

The board of supervisors accepted a proposition to compromise and settle a
judgment recovered in favor of the county against the defendant, pending the
latter's appeal therefrom in the court of appeals, and directed their attorneys to
make and enter into stipulations, to be signed by the defendants in person and
their attorneys, carrying out the compromise, and the county treasurer to make
use of the funds arising therefrom. The stipulation, which required the sig-
natures of the defendants and their attorneys, as well as of the plaintiff's attorneys,
was soon after presented to the plaintiff unsigned by its attorneys, but otherwise
■complete, and was accepted and ordered to be placed on file; the county treasurer
also reported, as the fact was, tlfc,t he had used, as directed, a payment made by
the defendants according to the terms of the compromise, and the report was ac-
cepted and directed to be filed. Held, that the supervisors and their successors
in office were bound by the stipulation, and could not subsequently rescind their
action in respect thereto.

Board of Supervisors of Orleans county, appellants, v, Samuel C, Bowen and others,
respondents, 4 Lans. 24.

§ 617. Informal Action of Town Meeting's,
and of Town Officers, how Iiegalized; Correc-
tion of Error in Assessments, Etc.; Appeals ;
Taxes so Refunded, how Apportioned. — The

board of supervisors of any county, except New York, Kings and
Albany, may by a vote of two-thirds 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 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 con-
sideration the portion of State, county, town and ward tax included
therein, and the extent to which each town or ward has been bene-
fited thereby.

Laws of 1869, chap. 855, 5 5, as amended by Laws of 1885, chap. 326.
68



538 Supervisors' Manual.

The following act relating to King^ county is inserted in full. The form of the
act is peculiar. If the purpose of it is to give Kings county the same powers pos-
sessed by other counties the former act could have been easily amended therefor.
What effect the latter act may have in relation to the former is not yet settled.

Section 1. The board of supervisors of each county In this State, containing
upward of three hundred thousand inhabitants, shall have power, by a two-thirds
vote of all the members elected thereto, to legalize the informal acts of any town
meeting within such county in raising money for any purpose for which such
money is authorized to be raised by law, and, by like vote, to legalize irregular
acts of any one or more town oflBcers performed in good faith, and within the



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 59 of 96)