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

. (page 68 of 96)
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 68 of 96)
Font size
QR-code for this ebook


Id., 9 19.

§ 758. Duty of Supervisor S.— The supervisors of any
county in the State from which State pupils may be selected and
received into the asylum, are hereby authorized and required, while
such pupils ]-emain at the asylum, to raise the sum of $30 annually
for the purpose of furnishing suitable clothing for each pupil from
said county ; and on or before the first day of April in each year, to
pay over the same to the treasurer of the asylum. The superintend-
ent shall, on the reception of any pupil, give notice thereof to tlie
clerk of the board of supervisors of the county from which such
pupil shall have been sent.

Id., 1 17, as amended by chap. 739, Laws of 1867.

§ 759. Of tlie Support of the Blind— Admis-
sion of Blind to the State Institution.

See ante, § 107.

Expenses County Charg'e, etc.

See ante, § 107.

§ 760. Of the Support of Deaf-Mutes-

See ante, § 105.



Board of Supeevisoes — Miscellaneous Duties. 615

Of Benevolent Institutions.

§ 761. Chapter 347 of the Laws of 1880 makes provision for
the reporting of appointments or commitments to the benevolent
institutions of the State. The statute reads as follows :

Each of the asylums, reformatories, homes, retreats, penitentiaries,
jails, or other institution of this State in which the board, instruc-
tion, care or clothing of persons committed thereto is, or shall be, a
charge against any county of this State or town therein, shall be
known for the purposes of this act as one of the State benevolent
Institutions of the State.

Chap. 847, Laws o£ ^880, § 1 ; 8 E. S. 1894.

Reports by Supervisor and Other Office]i?>9

to Board of Supervisors.— It shall be the duty of every
judge, justice, superintendent of the poor, overseer of the poor,
supervisor or other person who by law is authorized to make com-
mitments or appointments to any of the State benevolent institutions
of the State, to make a report in writing to the clerk of the board
of supervisors of the county so liable, or of the county in which any
town is so liable, for the board, instruction, care or clothing men-
tioned in section 1 of this act ; said report shall be made within ten
days after making such commitment or appointment, and shall show,
when known, the nationality, age, sex and residence of each person
so appointed or committed, and the length of time of such appoint-
ment or commitment.

5 2.

Reports hy Keeper, Etc.— It shall be the duty of the
keeper, superintendent, warden, secretary, director, or other proper
officer, of each of the State benevolent institutions of the State,
within ten days after receiving any person into any of the institu-
tions mentioned in section 1 of this act, whose board, care, instruc-
tion, tuition or clothing shall be chargeable to any town or county,
to make a report, in writing, to the clerk of the board of supervisors
of the county so liable, or of which any town is so liable. Such
report shall show when such persons were received into said institu-
tion, and, when known, the name, age, sex, nationality, residence,
length of time of commitment or appointment, the name of the
oflBcer making such commitment or appointment, and the sum
chargeable per week, month or year for such person.

S8.



616 SuPEBvisoEs' Manual.

§ 762. Deatb, Removal or Discharge to be
Reported. — In case of the death, removal or discharge of any
person committed or appointed to any of the institutions mentioned
in this act, it shall be the duty of the officers mentioned in section
3 of this act to immediately report to the clerk of the board of
supervisors of the respective county the date of such death, removal
or discharge

§ 763. OfiEicers to Render S-vrorn Statements
of Accounts. — It shall be the duty of the officers mentioned
in section 3 of this act, annually, on or before the fifth day of
October, to present to the clerk of the board of supervisors of the
county liable for the board, instruction, care, or clothing mentioned
in this act, or of the county in which aDy town is so liable, a sworn
statement of the account of such institution with such county or
town, up to the first day of said October, and in case of a claim for
clothing, an itemized statement of the same, and in case any part of
the board, care, tuition, or clothing has been paid by any person or
persons, the account shall show what sum has been so paid ; and
accompanying such account shall be a report showing the name, age,
sex, nationality and residence of each person mentioned in the
account, the name of the officer who made the commitment or
appointment, the date and length of commitment or appointment,
the time to which the account has been paid, and the amount claimed
to the first day of said October, the sum per week or per annum
charged, and if no part of such account has been paid by any per-
son or persons, the report shall show such fact duly verified.

8 5, a3 amended by Laws of 1881, chap. 278.

§ 764. Penalty for Neglect.— Any officer mentioned in
this act who shall refuse or neglect to make the reports required by
this act shall not be entitled to receive any compensation or pay for
any services, salary or otherwise, from any town or county to which
he is required to make such report.

§6.

§ 765. Filing of Report.— The clerk of the board of
supervisors who shall receive any report or account in pursuance of
the provisions of this act shall carefully file the same and present the
same to the respective boards of supervisors on the second day of
the annual meeting of the board next succeeding the receipt of the
same.
§7.



BOAED OF StTPBfiVlSORS — MiSCELLAUEOUS DUTIES. 617

§ 766. Poor-Houses Exempt.— The poor-houses iu the
several counties of this State are hereby exempted from the provis-
ions of this act.

S8.

Nothing in this act contained shall be held to apply to the coimty
of Kings.

S9.

§767. Boards of Supervisors may Estend

Boundaries OfVilla^es, etc.— The boards of supervis-
ors of the several counties are hereby authorized and empowered to
extend the boundaries of any incorporated village within their re-
spective counties, upon the petition of the president and board of
trustees of such village, by a vote of a majority of all the supervis-
ors elected, to be taken by yeas and nays, provided that no act,
ordinance or resolution for such purpose shall be valid and operative,
unless it shall receive the affirmative vote of the supervisors of the
town or towns from which the additional territory is to be taken, in
which such village is situated, and of the supervisor or supervisors,
if any, of such village. And the said boards of supervisors are also
authorized and empowered to diminish the boundaries of any incor-
porated village within their respective counties, so as to exclude from
such incorporation any portion of the territory embraced therein,
upon the petition of two-thirds of the electors resident within the
portion of territory sought to be so excluded, who shall be liable to
be assessed for the ordinary and extraordinary expenditures of such
village, by a vote of a majority of all the supervisors elected, to be
taken by yeas and nays, provided that no act, ordinance or resolu-
tion for such purpose shall be valid and operative, unless it shall
receive the affirmative vote of the supervisor or supervisors, if any,
of such village.

Chap. 291, Latra of 1870, § 83, as emended by Lairs of 1871, chap. 870.

APPOINTMENTS TO OFFICE.

§ 768. Qualifications.— No person shall be capable of
holding a civil office who, at the timeof his election or appointment,
shall not have attained the age of twenty-one years, and who sliall
not then be a citizen of this State. '

§ 1, art. 1, tit. 6, chap. 5, part 1, R. S. 865.

§ 769. Duration of.— Every office of which tlie duration

78



618 SuPEKVisoRs' Manual.

is not prescribed by the Constitution, or is not or shall not be de-
claimed by law, shall be held during the pleasure of the authority
making the appointment.

Id., §8.

§ 770. Commissions. — The commissions of all other
officers, where no special provision is made by law, shall be signed
by the presiding officers of the board, or body, or by the person
making the appointment.

Id.,§19, p. 367.

Upon the trial of this action, in the nature of a quo warranto, to oast the de-
fendant from the ofiBce of trustee of the village of N., it appeared that the relator
claimed to be entitled to the office by virtue of a resolution adopted by the board
of trustees of the village, appointing him to fill a vacancy in that office, created
by the resignation of a former trustee; 7ield, that as it did not appear that any
commission, signed by the presiding officers of the board, had been issued to the
relator, as was required by section 19 (above), the complaint should be dismissed.
People, exrel. Wright, v. WiUard, 44 Huo, 680.

Under the provisions of the excise law of 1870 (§ 2, chap. 175, Laws
of 1870), providing for the appointment of commissioners of excise in
cities, such an appointment cannot be made verbally. It seems that
no appointment to any civil office can be made verbally, save where
permitted by the terms of the statute conferring the appointing
power; in the absence of such permission, there must be a commis-
sion, *. e., a formal writing signed by the official with whom the
power of appointment rests, showing clearly his intention to appoint
the person named, his belief that such writing is that required by
the statute, and his intention to make it the final act on his part to
perfect the appointment.

People, ex rel. Babcocic, v. Murray, 70 N. T . 521 ,

POTTCrs. — Where a power of appointment to a public trust
or office is conferred upon one or more persons, they cannot
appoint one of their own number. Such an appointment, if made,
is void.

People, ex rel. Davis, v. Thomas, 83 Barb 287.

The official acts of one exercising an office, under the appoint-
ment of one who has no power to appoint, are void.

People, ex rel. Kearney, v. Carter, 29 Barb. 208.

Public offices in this State are not incorporeal hereditaments, nor
have they the character or qualities of grants. They are agencies.



BoABD OF Supervisors — MiscBLLANEons Duties. 619^

Except in the special cases where the Constitution prohibits it, the
legislature may control the unearned emoluments of office.

Ct. App., 1851, Conner V. Mayor, etc., 5N. Y. 285.

A board of officers having the power of appointment to an office
cannot reduce the amount fixed by law as the salary of said office^
or make a binding contract with their appointee to perform the du-
ties of the office at a less sum.

People, exrel. Satterlee, v. Board of Police, 75 N. Y. 38.

§ 771. Po-wers not to be Deleg-ated.— Publia

trusts for the appointment of officers at pleasure, can never be di-
vested nor delegated.

Auburn Academy v. Strong, Hopk. 278, 202 (m. p.).

§ 773. Resignations sliall be Made 'as fol-
lovrs:

1. By the governor, lieutenant-governor, secretary of State, comp-
troller, treasurer, attorney-general, surve^j^or-general and State printer,
to the legislature.

2. By all officers appointed by the governor alone, or by him with
the consent of the senate, to the governor.

3. By senators and members of assembly, to the presiding officer*
of their respective houses, who shall immediately transmit the same
to the secretary of State.

4. By sheriffs, coroners, county clerks and register of New York,
to the governor.

• 5. By district attorneys, to the court which appointed them.

6. By justices of the peace, to the supervisor of the town.

7. By commiseionere of deeds for towns, to the first judge of the
county.

8. By all other officers, to the body, board or officer that ap-
pointed them.

IR. S.370, §33(m.p. 122).

In all cases not otherwise provided for by law, resignation of an
office may be made by filing, in the office of the secretary of State,
a written resignation thereof, signed by the incumbent ; and there-
upon the office so relinquished shall be deemed to be vacant.

Chap. 126, Laws of 1850.

A resignation in writing, without seal, is effectual, though the
statute requires the appointment to the office in question to be under



€20 SuPBRTisoEs' Manual.

seal, for the provisions of the statute relating to resignations are si-
lent as to a seal, and it seems that acceptance of the resignation is
unnecessary.

Sup. Ct., 1851, Gilbert V. Luce, 11 Barb. 91, 204.

Independent of any statute, the right of accepting the resignation
of an officer passes as incidental to the power of appointing him.

VanOrsdallv. Hazard, 8 Hill, 243.

Where no particular mode of resigning an office is specially pro-
vided, and the appointment is not by deed, neither the resignation
nor its acceptance need be in writing, but may be by parol. Nor is
any form of words requisite to constitute a resignation or accept-
ance, in such case.

Id.

The acceptance of a resignation may he manifested by the acts of
those authorized to receive it : e. g., appointing a successor.

Id.

That a power of appointment given by law in general terms and
without restriction, for the purpose of carrying out some project, of
which it forms only a part, implies the power of removal. So hdd,
of municipal corporation having power to appoint commissioners of
estimate and assessments in cases of local improvements.

Sup. ct., 1849, People V. Mayor, etc., of N. T. 5 Barb. 48; Laimbeer v. Mayor,
etc., of N. Y. 4 Sandf. 109.

§ 773- Veterans to be Preferred.— In every pub-
lic depai'tment and upon all public works of the State of New York,
and of the cities and towns and villages thereof, and also in non-
competitive examinations under the civil service laws, rules or regu-
lations of the same wherever they apply, honorably discharged Uuion,
soldiers and sailors shall be preferred for appointment and employ-
ment ; age, loss of limb, or physical impairment which does not in fact,
incapacitate, shall not be deemed to disqualify them, provided they
possess the business capacity necessary to discharge the duties of the
position involved.

§ 1, obap. 812, Laws of 1884, as amended by chap. 464, Laws of 1887.

Penalty. — All officials or other persons having power of ap-
pointment to or employment in the public service as set forth iu the
first section of this act, are charged with a faithful compliance with
its terms, both in the letter and spirit, and a failure therein shall be
a misdemeanor.

Id., s 2.



Board of Supebvisoes — Miscellaneous Duties. 631
Soldiers and Sailors not to be Removed,

Except, etc. — No person holding a position by appointment
in any city or county of this State receiving a salary from such city
or county, (unless he has been appointed for a definite term) who is
an honorably discharged soldier, sailor or marine, having served as
such in the Union army or navy during the vs^ar of the rebellion,
shall be removed from such position except for cause shown after a
hearing had ; but this provision shall not be construed to apply to
the position of private secretary, or chief clerk or deputy of any
official or department, or to any other person holding a confidential
relation to the appointing officer.

Chap. 119, Laws of 1888, § 1.

Repeal. — All laws or part of laws inconsistent with the pro-
visions of this law are hereby repealed.

Id., §2.

Under this act, discharged soldiers and sailors have not, because
found qualified, an absolute right of preference over all others, but
only a preference to others having an equal or lower standing.

People, ea rel. CMd, t. Poillon, 16 Abb. N. C. 119.

Held, constitutional.

In re Wortman, 22 id. 137.

No officer or appointing power has authority to deny the statutory
preference in appointment to public office given to honorably dis-
charged soldiers and sailors * * * and a mandamus lies to en-
force the observance of this preference.

Id.

The failure of the applicant to bring to the notice of the appoint-
ing power, the fact that he was such soldier, will preclude his right
to a mandamus to compel consent to his appointment.
Id.

A tax payer may maintain an action to enjoin a municipal corpo-
ration from paying for services of an officer appointed in violation
of this law.

Id., p. 144.

Where an application by such veteran for appointment to a public
office, stating that he is qualified to perform all the duties of the
position and the appointing officers inform him that they consider
him incompetent, he is required under chapter 464, Laws of 1887,
to establish the fact of his qualification by affidavits of others and



^23 Supervisors' Makual.

not by their mere written recommendations, before he is entitled to
relief by mandamus.

People, «c r«2. Waterman, v. Enapp, 4N. T. Supp. 825.

Laws E". Y., 1887, chap. 464:, provides that honorably discharged
Union soldiers shall be preferred "for appointment and employ-
ment." Fonr temporary clerks were appointed, and only one was a
soldier, and the business falling off, the soldier was discharged and
the others were retained. Held, that under the act the soldier
should have been discharged last of the four temporary clerks.

People, ex rel. 0' Conner, t. Adams, 6 N. Y. Supp. 128.

Held, that, under the provision of chapter 29 of 1886, providing
that a veteran of the war shall not be disqualified for holding any
position on account of his age, or by reason of any physical disa-
bility, provided that such age or disability does not render him in-
competent to perform the duties of the position, a dismissal of the
relator from the police force simply upon the ground of his age was
improper.

The provisions of the act (Chap. 29 of the Laws of 1886) relate
to the qualifications of veterans of the war actually in office as well
as to those of such veterans who are applicants for office.

People, ex rel. Washburn, v. French, 62 Hun, 464.

The "civU service" law applies to State and city officers, and
most of the cases yet decided apply to such officers. The above
fihow the decisions applicable to towns and counties.



CHAPTER XI.

ORGANIZATION OF THE BOARD OF SUPERVISORS.

Sbo. 774. Of whom composed . Sbc. 785. Rules of order.

775. Annual and special meetings. 786. To determine cases of contested

776. Annual meetings. How time there- membership.

forflzed,etc. 787. Cannot appoint supervisor to office.

777. Special meeting. 788. Code of rules — First.

778. Quorum. 789. —Second.

779. Chairman. 790. Committees.

780. Organization. 791. — Who is chairman of .
781-4. Clerk and officers. 792. —Standing.

§ 7T4. Of Whom Composed.— The board of supervis-
ors are composed of the supervisors of all towns and wards in the
connty, except in New York ; Kings county has one supervisor at
large.

Local laws have been paaaed making the term of office two years, but such
laws have been adjudged by the courts to be unconstitutional and void.

People V. UoSman, 60 How. 324; affirmed, 24 Hun, 142.

§ 775. Annual and Special Meeting^s.— It is the

duty of the supervisor of each town to attend the annual and every
adjourned and special meeting of the board.

§ 776. Annual Meeting — Hott time Tbere-
for Fixed— Vote Required. — The board have power to
fix the time and place of holding their annual meeting, by a vote of
a majority of all the members elected in the county, and have gen-
erally availed themselves of this right.

Laws of 1849, chap. 194 (§ 553, ante); 2 R. S. 981.

The annual meeting is generally on the Wednesday following the meeting of
the board of county canvassers.

In OSTTegO County. — The annual sessions of the board
of supervisors of Oswego county, after organizing at the county
clerk's office, at the meeting of the board of county canvassers, shall
be held in the court-house in the city of Oswego, or in the court-
house in the village of Pulaski, and all special sessions shall be held
in one of said court-houses, and no session shall be held elsewhere.

Laws of 1869, chap. 110, § 1, as amended by Laws of 1871, chap. 216, % 1.



624 ScPEEviaoBs' Manual.

AdjoUPned Sessions. — It shall be lawful for the said
board of supervisors, after organizing in the county clerk's office as
above specified, to adjourn to meet in either of the above-named
court-houses as a majority shall decide ; but mileage shall be allowed
but once each way from the residence of each supervisor to the
place of meeting over the usually traveled route, during one annual
session, the meeting as a board of canvassers and the meeting as a
board of supervisors, being taken as one session.

Id., § 3, 39 amended by Laws of 1871, chap. 216, § 2.

§777. Special Meetings.— Special meetings may be
called by the clerk of the board, at any time, on the written request
of a majority of the board.

Laws of 1838, chap. 314, § 5; 2 R. S. 928.

Meetings Must be Public— The boards of supervis-
ors shall sit with open doors, and all persons may attend their meet-
ings.

2R. S. 926.

§778. QuOPum. — A majority of the supervisors of the
county shall constitute a quorum for the transaction of business ;
and all questions which shall arise at their meetings shall be deter-
mined by the votes of the supervisors present.

There are certain questions which require a majority of the members of the
board elected, others two-thirds of those elected.

The law is in full, chap. IX, ante.

These provisions cannot be altered by a rule of the board.

People, exrd. Burroughs, v. Briukerhoff, 68 N. Y. 259.

§ 7 79. Cliaiii:*nia>n. — The board of supervisors shall, at each
annual meeting, choose one of their number as chairman, who shall
preside at such meeting, and at all other meetings held during the
year. In case of his absence at any meeting, the members present
shall choose one of their number as a temporary chairman.

2R. S. 926, §7.

§ 780. Organization.— Prior to the annual meeting, the
clerk of the preceding board generally prepares a roll of the mem-
bers elected. The som-ces of his information are the certificates of
election from the proper town officer.

See " Credentials," § 35, ante.

At the time and place appointed for holding the annual meeting,



Oegakizatioit of the Board of Supeevisoks. 625

tlie supervisors are called to order by the clerk of the preceding
board, who calls the roll of the names of the supervisors elected.

If any seat is contested, the one having the proper credentials
from the town clerk or other proper town officers is entitled to his
seat until the question is referred to a committee for investigation.
The board can adopt or reject the report of such committee, and de-
termine who is entitled to a seat.

See note below.

If the question has been tested by a court, such adjudication de-
termines the matter.

If a quorum is not present, an adjournment should be taken to
such time as will enable the absent members to attend.

Either a temporary or permanent organization can be made.

A caucus generally decides who the officers shall be, and also who
shall make the proper motions therefor at the meeting of the board.
This saves time and trouble.

It is the custom, for the clerk of the preceding board to caU the
board to order as before stated, and to preside until a chairman is
chosen, but this right is based on no statute and is only a matter of
courtesy. The statute says that the supervisors shalj choose a
chairman, but does not say how it shall be done, or who must pre-
side thereat, leaving it to their discretion how to proceed. Instances
have been known where the clerk has forgotten that he is presiding,
hy courtesy only, and not by legal right, and the attempted organiza-
tion of the board has been attended by the methods more common
at "snap caucuses" than are consistent with legislative bodies. In
such cases the board can protect itself by standing on its own dignity
and the rights given it by law, and the method by which " they
shall choose a chairman,^'' is in their discretion, to be exercised in
any proper, decent manner they see fit to adopt. If, how-
ever, the clerk does his duty without feSr or favor, there is no
objection to his presiding until a chairman is chosen, and he then
puts the motion pertaining to the chairman, which may be viva voce
or by ballot, or on a call of the roll, each supervisor rising and nam-
ing his choice for chairman.

After a chairman is elected he puts the other motions as they are
made, and the former clerk's duties as presiding officer are ended.

The officers chosen in the permanent organization are :



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 68 of 96)