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Annual report of the Attorney General of the State of New York online

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Inasmuch as Ward's Island is a part of the city of New York,
I can see no legal objection to your Commission designating that
island as his residence.

Nor can I see any legal objection to your Commission desig-
nating the residence of the assistant physicians connected with
that institution and with the Manhattan State Hospital in such
place as to your Commission may seem to be desirable and for the
. best interest of the service.

Yours very truly,

EDWARD E. O'MALLEY,

Attorney-General.



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5PS Report ok the Attorney-General.

OPINIONS RENDERED THE STATE COMMISSION OF

HIGHWAYS.



Highway Law — Section 311 — Civil Service Law.

New Highway Commission. Reappointment of employees of
State Engineer's office within discretion of the Commission.

STATE OF NEW YORK,

Attorney-General's Office,

Albany, January 21 1909.

Hon. S. Percy Hooker, Chairman, Commission of Highways,
Albany, N. Y. :

Dear Sir, — Replying to your letter of the 18th instant, in
which you request my opinion as to whether, under section 311 of
the Highway Law, your Commission will be obliged to take into
its employment any of the employees of the State Engineer's
office, en block, I beg to advise as follows :

Section 311 provides that the State Engineer shall transfer and
deliver to your Commission all contracts, books, etc., in his pos-
session, when your Commission is appointed and has qualified,
pertinent to highways and bridges, and further authorizes you to
take possession of all such contracts, books, etc. It then provides :

" The commission may also reappoint in its employment
resident and other engineers, level ers, rodmen, clerks, and
employees engaged or connected with the department of high-
ways in the office of the State Engineer, or employed by him
in connection with the powers and duties exercised and per-
formed by him in respect to highways and bridges, and all
such engineers, clerks anel employees shall be eligible to
transfer and appointment to positions under the commission."

Tt is perfectly clear, in my opinion, that under this section,
your Commission is under no compulsion to retain in its employ
any of the employees of the State Engineer enumerated therein.



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Eeport of the Attorney-General. 599

The language is permissive only and leaves it entirely to your dis-
cretion to retain or not to retain these employees.

In giving my opinion upon this* right of your Commission,
however, I do not wish to pass upon the question whether the em-
ployees so dismissed would have any claim either for reappoint-
ment under the Civil Service Law or for damages' caused by
breach of any contract under which they were employed.

I call your attention, however, to section 21 of the Civil Ser-
vice Law, providing that if a position held by a veteran is abol-
ished, such veteran shall not be discharged from the public service,
but shall be transferred to any branch of the State service for
duty in such position as he may be fitted to fill, receiving the
same compensation therefor, and further making it the duty of all
persons clotheel with power of appointment to make such transfer
effective.

Yours very truly,

EDWARD R. O'MALLEY,

Attorney-General.



Highway Law — Chapter 330, Laws 1908 — Civil Service Law.

County Engineer or Superintendent of Highways Delaware
County, holds office until expiration of term. Competitive
Civil Service applies to engineers and superintendents under
new law.

STATE OF NEW YORK,

Attorney-Generates Office,

Albany, January 22, 1909.

Hon. S. Percy Hooker, Chairman, State Highway Commission,
Albany, N. Y. :

Dear Sir. — I have your favor of January 13th with the en-
closed certificate of J. Milo Graham, Chairman and David S.
Booth, Clerk of the board of Supervisors of Delaware County.

It will be noted by a reference to section 312 of 330 of the
Laws of 1908 that county engineers and superintendents of high-



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600 Report of ttie Attorney-General.

ways in office when the law took effect shall continue to hold their
respective offices until the expirations of their terms and until a
district or county superintendent shall have been appointed and
qualified, as provided by the new law.

Chapter 609 of the Laws of 1904 provided for the appointment
of a county engineer or superintendent of highways and it appears
from the certificate enclosed that Mr. Van Tossle was appointed
prior to January 1, 1909, had fully qualified and that his term
will not expire until January 1, 1910. It does not appear when
Mr. Van Tossle's term commenced.

The governor's order, placing county superintendents of high-
ways in the competitive list of the State Civil Service, only ap-
plied to superintendents provided for under chapter 330 of the
Laws of 1908.

I am, therefore, of the opinion that Mr. Van Tossle was legally
in office at the time the new law took effect and cannot be required
to pass a civil service examination and can continue to hold out
the term for which he was appointed.
Very truly yours,

EDWARD R. O'MALLEY,

Attorney-General.



Highway Law — Section 146,

Authority of State Engineer and Xew Highway Commission
over the placing of telegraph and telephone poles on State
and County highways:

STATE OF NEW YORK,

Attorney-General's Office,

Albany, February 20, 1909.

Hon. S. Percy Hooker, Chairman, Department of Highways,
Albany, N. Y.:

Dear Sir. — Replying to your letter of the 15th inst., asking
my opinion whether, under section 146 of the Highway Law, the



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Report of the Attorney-General. 601

State Engineer is given the power to regulate the setting of tele-
graph and telephone poles on State and county highways and
whether your Commission may now prescribe such rules and regu-
lations for telephone and telegraph companies as it deems wise,
I beg to advise as follows:

Section 140 is headed : " Street surface railroads on highways."
Under the authorities in this State, the heading of sections is to be
taken into consideration in construing the language used but if
such language is not subject to more than one interpretation its
effect will not be nullified because the heading may not be broad
enough to indicate the entire scope of the section. In this sec-
tion the statute reads as follows:

u Xo street surface railroad shall be constructed upon any
portion of a State or county highway which has been or may
be improved under the provisions of this article, nor shall
any person, firm or corporation enter upon or construct any
works in or upon any such highway, except with the ap-
proval of, and under such conditions and regulations as may
be prescribed by the commission, notwithstanding any con-
sent or franchise granted- by the town superintendent or mu-
nicipal authorities of any town."

These words are perfectly clear and extend the prohibition of
the section beyond the construction of street surface railroads so
as to make it include any works which may be constructed in the
highway and any entry upon the highway by any person, firm or
corporation.

It is, therefore, my opinion that under this section your Com-
mission has the power to make such lules and regulations or im-
pose such conditions as it may deem wise, for telephone and
telegraph companies.

Very truly yours,

EDWARD R. O'MALLEY,

Attorney-General.



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602 Report of the Attorney-General,

Highway Law — Section 179 — Street Railways.

Property along highways owned by street railways, may not be
assessed for sprinkling, etc. (O'Reilly v. City of Kingston,
114 N. Y. 439.)

STATE OF NEW YORK,

Attorney-General's Office,



Albany, March 13, 1909.

Hon. S. Percy Hooker, Chairman, State Highway Commission,
Albany, N. Y.:

Dear Sir. — Replying to your favor of recent date in which
you ask my opinion whether, under section 179 of the Highway
Law, a street railway having tracks along the highway can be
assessed for sprinkling and the removal of filth and refuse, I beg
to advise that under the decisions in this State, the property
owned by a street railway, in the highway cannot be regarded
as abutting upon the highway, and therefore such company can-
not be assessed, under this section.

O'Reilly v. City. of Kingston, 114 X. Y. 439.
Very truly yours,

EDWARD R. O'MALLEY,

Attorney-General.



Highway Law — Section 170.

Whether construction of word " contract " requires the Highway
Commission to advertise for bids etc. (See section 130.)

STATE OF NEW YORK,

Attorney-General's Office,

Albany, March 20th, 1909.

Hon. S. Percy Hooker, Chairman, State Highway Commission,
Albany, N. Y.:

Dear Sir. — I am pleased to acknowledge receipt of your favor
of March 15, 1909, with which you enclosed a letter from H. K.
Bishop, first deputy, asking for my construction of section 170



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Keport of the Attorney-General. 603

of the Highway Law, and more particularly if the word " con-
tract " therein used, will require the Commission to advertise for
bids and let the work mentioned in said section to the lowest
bidder.

The above section must be read in connection with the other
provisions of the act, and upon reference to section 130' thereof,
it will be observed that the leading paragraph reads as follows:

"Contracts for construction or improvement of highways.
State and county highways- shall be constructed or improved
by contract. Upon the completion and final adoption or ap-
proval, as provided by law, of the plans ? specifications and
estimate for the construction or improvement of a state or
county highway, contracts therefor shall be executed as pro-
vided herein."

Subdivision 3 of such section provides:

" The contract for the construction or improvement of
such highway or section thereof shall be awarded to the low-
est responsible bidder," etc.

It seems clearly to have been the intention of the Legislature to
have the work upon the State and county highways done by the
town, district or county superintendent, under rules and regula-
tions of the Commission, and if proper performance of such work
cannot be secured in that manner, then the work must be done by
contract, and in making such contracts the Commission will have
to be controlled by the provisions of section 130. I do not think',
however, that the work connected with the establishment and
maintenance of a system of patrol of the State and county high-
ways is required to be done by contract.

I appreciate fully the disadvantages and unpleasant conditions
which will arise in some cases by the Commission being required
to advertise for bids, and to let the work by contract, but the
statute is mandatory, and more trouble is liable to arise by a de-
parture from the statutory requirements than would accrue by a
strict compliance therewith.

If the present system is found cumbrous and expensive it would
be better to secure an amendment of section 170, giving the State
Commission a certain amount of discretion in all cases where it



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004 Report of the Attorxey-General.

is deemed expedient to have the work done by day labor under
the direction and supervision of the district highway inspector.
It seems to me that such a course would be preferable rather than
to resort to a doubtful practice which might involve the Com-
mission in litigation, in the way of mandamus proceedings or
otherwise.

Very respectfully yours,

EDWARD R. O'MALLEY,

Attorney-General.



Highway' Law — Chapter 715, Laws 1907 — State Roads — •

Contracts.

Road Xo. 652, Clinton county. Whether contract already let may
be amended by canceling 2,000 feet thereof, not on official
map. Authority for change vests in the board of supervisors*
(Sec. 315 Xew Consolidateel Highway Law.)

(See opinion October 15, 1908.)

STATE OF XEW YORK,

Attorney-Gexeral's Office,

Albany, March 24, 1909.

Hon. S. Percy Hooker, Chairman State Highway Commission,
Albany, N. Y.:

Dear Sir. — 1 am pleased to acknowledge receipt of your favor
of March 3, with which you inclosed a copy of letter from C. R.
Allen, Jr., assistant engineer, and a letter from J. C. Finch,
engineer in charge of Road Xo. 052, Clinton county, asking my
opinion as to whether a contract already let can be amended by
canceling 2,000 feet thereof, from which correspondence it appears
that the road in question, except 2,000 feet thereof, was surveyed,
mapped and established, as provided by chapter 715 of the Laws
of 1907, and that the contract as let deviates from the county
system of roads on the official map, at station 125-00 to Moores
town line, a distance of 2,000 feet, and that such last mentioned
piece of road is not upon the official map.



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Report of the Attorney-General. 605

It appears very clearly that a mistake was made in the letting
of the contract and that unless a change is made in the contract,
there will be an unlawful use of State funds, as it is provided,
among other things, in section 1, chapter 715 of the Laws of 1907,
that " no highways shall hereafter be improved with such funds in
addition to those so designated, except as they may hereafter be
added to the map by Legislative enactment."

It will be observed upon a reading of section 315 of the new
Consolidated Highway Law, that the provisions of chapter 715
of the Laws of 1907 are continued in force " except that the
board of supervisors of any county is hereby authorized to modify
the designation of county highways on such map by resolution
duly adopted. by a majority vote of the members of such board,
provided the total mileage as originally designated upon the
county map in such county is not thereby materially increased."

From a reading of the above statutes, it is very evident that a
change cannot be made in the line, except by the board of super-
visors of the county of Clinton.

The making of the contract for the construction of the 2,000
feet of road not designated upon the map prepared by the State
Engineer and Surveyor as provided by chapter 715 of the Laws
of 190,7, was ultra vires and was beyond and outside the powers
conferred on the former State Engineer to make, and was abso-
lutely void so far as such 2,000 feet was concerned, and if a com-
promise cannot be effected between your commission, the board of
supervisors of Clinton county, and the contractor, whereby the
same amount of road can be constructed from station 125-00
along the route of the county ro#d designated' upon the map,
notice should be given to the contractor and board of Supervisors
that the contract for the construction of that portion of the high-
way was made without authority and is therefore void, and that
no state funds can be applied or used in the work thereon, and if
any portion of such 2000 feet of roadway is hereafter constructed
the state will not and cannot be made to contribute any portion of
"the expense thereof.

Very truly yours,

EDWARD R O'MALLEY,

Attorney-General.



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606 Repokt of the Attorney-General.

Highway Law — Section 111.

Village of Babylon, petition for vote on proposition for road and
street improvement should state amount to be raised and
should be filed twenty days before town meeting. .

STATE OF NEW YOKK,

Attorney-Generals Office,

Albany, April 7, 1909.

Hon. S. Percy Hooker, Chairman, State Highway Commission,
Albany, N. Y.:

Dear Sir. — I am pleased to acknowledge receipt of your favor
of March 29th with which you forwarded to me a letter from
Eugene Lentilhor, President of the Village of Babylon and copies
of two petitions circulated in such village asking for a vote upon
a proposition for the improvement of certain roads and streets
within the town, as provided by section 111 of the Highway Law,
and asking for my opinion in relation to the validity of the pe-
titions, and whether the moneys required to be expended to carry
out the improvement can be raised by taxation, provided' favor-
able and affirmative action shall be taken at the town meeting.

Eoth of these applications are made under section 111 of the
new Highway Law. All the information that is sent me in rela-
tion to the first application is contained in a newspaper clipping
which I must assume contains the whole thereof, except the sig-
natures, and from this clipping which is dated March 4, 1909, it
will be noticed that it is not stated how much of an expenditure
the proposed improvement will require, or how much of an ap-
propriation is desired.

Section 111 reads as follows:

"Section 111. Additional expenditure for improvement,
repair and maintenance of town highways. — L T pon the writ-
ten application of twenty-five taxpayers of a town, filed with
the tow 7 n clerk, the electors thereof may, at a regular or
special town meeting, vote by ballot upon a proposition for
the expenditure of a sum, not exceeding on<vthird of one per
centum of the total taxable property of the town, including
incorporated villages, in addition to the sum authorized by



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Report of the Attorney-General. 607

this chapter for the improvement, repair and maintenance
of town highways in such town. Such proposition shall be
submitted in the manner provided by law for the submission
of questions or propositions; at a town meeting. If such
proposition be adopted, the amount specified therein shall be
a town charge and shall be levied and collected in the same
manner as other town moneys, and when collected shall be
paid to the supervisor and expended for the purposes speci-
fied in such proposition as provided in this chapter.

This section inferentially, at least, requires the proposition sub-
mitted to the voters to state the amount to be expended which
tannot exceed one-third of one per centum of the total taxable
property of the town. It will be observed upon a reference to
the above-quoted section that the last paragraph provides that if
such a proposition is adopted, " the amount specified therein shall
be a town charge and shall be levied and collected in the same
manner as other town moneys," etc. This clearly indicates that
the Legislature intended that the application for the submission
of such a proposition should state the amount it is proposed to be
raised, therefore one of the essential requirements was not ob-
served, and the paper does not comply with the statute. The
omission of the amount to be voted upon was a fatal mistake, and
it did not confer any jurisdiction upon the clerk to act, or upon
which official action could be based; it does not amount to a sub-
stantial compliance with the statute; it is a defect in substance
and not in mere form.

Town of Oyster Bay v. Harris, 21 App. Div. 227.
The Town of Mentz v. Cook, 108 1ST. Y. 302.

This proceeding is purely statutory, and the courts have always
held that action taken under a statute which is to be followed by
the -issuance of bonds or taxation of property must be strictly
pursued, " and that the proceedings will not be sustained, where
there has been a failure to comply strictly with the statutes con-
ferring the authority."

Town of Wellsboro v. K Y. and C. R E. Co., 76

K Y. 185.
The People ex rel. v. Hulbert, 46 K Y. 110.
People ex rel. Rogers v. Spencer, 55 N. Y. 6.



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608 Report of the Attorney-General.

I am, therefore, of the opinion that if this printed slip is a
correct copy of the first application, that all proceedings there-
under, are void ab initio.

Assuming that the typewritten application dated March 17,
1909, is a correct copy of the one filed with the town clerk, except
the signatures, 1 think it is sufficient in form to authorize the
town clerk to give the notice required to be given by sections- 47
and 48 of the Consolidated TWn Law (formerly sections 24 and
32 of the Town Law), but I am informed by the communication
before me that this petition or application was not filed with the
• town clerk " at least twenty days before the town meeting/'

The provision in reference to the submission of the proposition
to the voters of the town is mandatory, and if the application w T as
not filed at least twenty full days before the biennial town meet-
ing, it did not meet the statutory requirement.

People ex rel. Hovey v. Town Clerk, 26 Misc. 220.
Matter of Eggleston, 51 App. Div. 38.

I am not unmindful of the authorities which hold that the
will of the people should not be thwarted or defeated by the acts,
misconduct or neglect of public officers, but the failure to file the
petition at least twenty days before the town meeting was not the
act, neglect or misconduct of a public officer, but was a failure
on the part of the people that had the matter in charge.

I am, therefore, forced to the conclusion that any action -taken
under either of these applications would not confer any jurisdic-
tion for the raising of the necessary money to carry on the work,
or to authorize the work to be done. Ample authority is given
by section 111 to submit the proposition at a special town meet-
ing, and if the people of the town are still desirous of having
the improvement made, it would only occasion a few days' delay
to secure the signature of twenty-five taxpayers to a new applica-
tion that w T ould conform to all statutory requirements, and have
it filed at least twenty full days before the meeting.
Yours truly,

EDWARD R. O'M ALLEY,

A ttorney-Oenerah



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Report of the Attorney-General. 609

Highway Law — Sections 135, 136 — State and County Roads.

Authority of State Highway Commission to enter upon lands
adjacent to State highways, in order to construct drain or
ditch. Condemation proceedings in case agreement cannot
be entered in to with owner.

STATE OF NEW YORK,

Attorney-Generals Office,

Albany, April 9, 1909.

Hon. S. Percy Hooker, Chairman State Highway Commission,
Albany, N.Y.:

Dear Sir. — Replying to your letter of the 23d ultimo, in which
you ask my opinion as to the construction of subdivision 3, section
135, and of section 136 of the Highway Law, with special refer-
ence to the power of the Commission to enter upon lands adja-
cent to a state or county highway for the purpose of constructing
a drain or ditch, before having acquired the' right to such entry
from the owner by agreement or condemnation, I beg to advise as
follows :

Section 136 reads:

" Section 136. Damanges for entry. — The commission
may agree with the owner of lands entered upon and occupied
as provided in the preceding section for the payment of
damages caused by such entry, or if unable to so agree, the
right to enter and occupy such lands may be acquired and
the damages therefor shall be ascertained as provided in
the condemation law."

While I am inclined to the opinion, from the language above
used and the heading of this section, that the commission has the
power to enter upon such lands before instituting condemnation
.proceedings, yet the safer course would be, in view of the fact
that the language is not entirely clear, to start condemnation pro-
ceedings first in case a reasonable agreement cannot be made with
the owner of the land. These proceedings, under the Code, allow



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CIO Report of the Attorney-General.

an entry to be made, under certain conditions, very shortly after
the commencement of the proceedings and I therefore advise

20
that unless an emergency exists which would endanger the safety
of the highway, this course is the safer one to pursue. If, how-
ever, the circumstances are such that immediate entry is necessary,
I advise that you have the right to make it without first institut-
ing condemnation proceedings. The law, however, is not entirely
clear and if the matter is of sufficient importance I suggest that
it might be well to secure an amendment to this section either at
this session or next year giving such right in express terms.
Very truly yours,

EDWARD R. O'M ALLEY,

Attorney-General.



Highway Lata — Section 172 — 'State and County Roads.

Board of Supervisors of Oneida county may be compelled by
State Highway Commission to raise money for the mainte-
nance of county highways.

STATE OF NEW YORK,

Attorney-General's Office,

Albany, April 22, 1909.

Hon. S. Percy Hooker, Chairman,, State Highway Commission,
Albany, N. Y.\

Dear Sir. — I have your letter of the 2d inst., in reference to
the refusal of the board of supervisors of Oneida county to raise
any money for the maintenance of county highways at their last



Online LibraryNew York (State). Attorney General's OfficeAnnual report of the Attorney General of the State of New York → online text (page 41 of 76)