uy: (aT Rahs fy As mi i S Curae Hiatt ee HAE] G iby pmsin st Panett Wie Gornell Law School Library KFN5750.C84 “ii mi THE LAW OF SUPERVISORS AS EMBODIED IN THE STATUTES AND JUDICIAL DETERMINATIONS OF THE COURTS OF THE STATE OF NEW YORK: BEING A COMPENDIUM OF THE Laws DEFINING THE DUTIES AND LIABILITIES OF SUPERVISORS, INDIVIDUALLY AND IN CONNECTION WITH OTHER TOWN OFFICERS ; AND OF THE BOARD OF SUPERVISORS. WITH USbriulL FORMS. BY GEO. W. COTHRAN, LL.D., OF THE BUFFALO AND CHICAGO BARS. 1889. BANKS & BROTHERS, New Yorks. ALBANY. Hl 1889 BROTHERS rn 5 pb il PREFACE. The law relating to the office of Supervisor, the pow- ers which it confers upon the Supervisor and the duties he is required to perform individually, and in connection with the various other town offices as well as the duties he is called upon to discharge as a member of the Board of Supervisors and of the Board of County Canvassers of Election Returns,—is in a fearfully chaotic condition. Hardly any question that could be suggested in rela- tion thereto could be answered by a good lawyer, without careful and, painstaking investigation. And yet, next to the Governor of the State, the Supervisor is required to transact more important business, and to discharge more varied and intricate duties, than any officer in the State. In one sense, at least, the whole machinery of the government of the State rests upon him; for, without the affirmative action of the Board of Supervisors, not a dollar of taxation can be levied upon, or collected from, the people. Without his consent no charge against town or county can be collected. He is a member of the Board of Town Auditors, which has the auditing of all amountsagainst the towns ;* heisa member of the Board of Supervisors, which has the auditing of all county charges. In the discharge of these varied duties, very intricate, as well as complicated, questions frequently arise. A Supervisor, and the Board of Supervisors, are called upon to discharge functions, Ministerial, Administrative, Legislative and Judicial. He is the governor of his town; and, asa member of the Board of Supervisors, one of the governors of his county. The law relating to this important office, defining and regulating the discharge of the duties appertaining there- *A majority of the board audits. PREFACE. to, needs revision and consolidation and simplification. Commencing with the Revised Statutes of 1828, the Legislature, at almost every annual session since then, has gone on adding to, amending, repealing, modifying, extending, recalling and duplicating provisions of the law, until it has become next to impossible to determine what the law is, without careful examination. This, the practicing lawyer has not the time to do, and he looks around in vain for some practical work that will aid him to turn to just what he wants. When the lawyer, whose whole life has been devoted to the study and examination of the law, is thus circum- stanced, how must it be with the Supervisor, called from the farm or some of the other busy vocations of life, where no opportunity has been afforded for legal train- ing or experience? When, to the confusion resulting from hasty and ill- digested legislation, piling one statute upon another, almost in the same words, and the extensive powers of local legislation vested in Boards of Supervisors by the Act of 1875 (chap. 482), you superadd the conflicting decisions of the courts, extending to the court of last resort, in construing these varied and complicated laws, it presents a case that calls loudly for legislative action. While the law remains in its present condition, the best thing that could be done was to prepare a work in which the law, as enacted by the Legislature and as enlarged by judicial interpretation, might be arranged in as simple and practical a form as possible, to lighten the labors of the professional man and to furnish to the Supervisor, and the other town and county officers with whom he is called upon to transact business, a ready means of ascer- taining what their duties are, and how to discharge them. Such as it is, this volume is sent forth with the sincere hope that it may be useful and convenient to all who have occasion to use it. GEO. W. COTHRAN. BuFrraLo, December, 1888. CONTENTS. CHAPTER I. OF THE ELECTION AND QUALIFICATION OF SUPERVISORS wee CHAPTER II. Or DUTIES PERFORMABLE BY SUPERVISOR INDIVIDUALLY—PROCUR- ING BOOKS AND PAPERS FROM PREDECESSOR CHAPTER III. Or DUTIES PERFORMABLE BY SUPERVISOR INDIVIDUALLY—BONDS oF TOWN OFFICERS CHAPTER IV. Or DUTIES PERFORMABLE BY SUPERVISOR INDIVIDUALLY—RECEIPT AND DISBURSEMENT OF PUBLIC MONEYS, ETC. CHAPTER V. Or DUTIES PERFORMABLE BY SUPERVISOR INDIVIDUALLY—DUTIES UNDER SCHOOL Laws CHAPTER VI. Or DUTIES PERFORMABLE BY SUPERVISOR INDIVIDUALLY—REPORTS TO BE MADE BY SUPERVISOR CHAPTER VII. MISCELLANEOUS DUTIES OF SUPERVISORS . ... . CHAPTER VIII. SUPERVISOR'S DUTIES IN CONNECTION WITH OTHER TOWN OFFICERS CHAPTER IX. SUPERVISOR’S DUTIES IN RELATION TO ELECTIONS CHAPTER X. Or PROPERTY LIABLE TO, AND EXEMPT FROM, TAXATION CHAPTER XI. OF THE ASSESSMENT OF PROPERTY FOR TAXATION—WHEN AND WHERE ASSESSABLE 31 55 72 86 105 124 164 222 279 311 Vi. CONTENTS. CHAPTER XII. OF THE ASSESSMENT OF PROPERTY FOR TAXATION—MAKING ASSESS- MENTS AND ASSESSMENT ROLLS . . «© + 6+ «© © © © *& CHAPTER XIII. OF THE ASSESSMENT OF CORPORATIONS FOR TAXATION . . CHAPTER XIV. OF THE EQUALIZATION CF ASSESSMENTS . . 1. 2. «1 8 8 eo CHAPTER XV. REVIEW OF ASSESSMENTS ON CERTIORARI . . 1. . « © © «© CHAPTER XVI. OF ASSESSMENT ROLLS AND LEVYING AND COLLECTION OF TAXES CHAPTER XVII. OF AUDITING ACCOUNTS BY BOARDS OF TOWN AUDITORS . ... CHAPTER XVIII. OF AUDITING ACCOUNTS BY BOARDS OF SUPERVISORS ... . CHAPTER XIX. Or THE BOARD OF SUPERVISORS—ITS MEETINGS, ORGANIZATION AND RULES OF PROCEDURE ....... CHAPTER XX. OF THE BOARD OF SUPERVISORS—GENERAL POWERS OF ... . CHAPTER XXI. OF THE BOARD OF SUPERVISORS—THEIR DUTY TO THE POOR, THE INSANE AND BENEVOLENT INSTITUTIONS . . . . , CHAPTER XXII. OF THE BOARD OF SUPERVISORS—DUTIES IN RELATION TO SCHOOLS AND ScHOOL Funps, MILITARY CoDE, GRAND JURORS AND CouUNTY OFFICERS CHAPTER XXIII. OF THE BOARD OF SUPERVISORS—MISCELLANEOUS POWERS AND DUTIES CHAPTER XXIV. OF THE POWERS AND DUTIES OF THE CLERK OF THE BOARD OF SUPERVISORS CHAPTER XXvV. COMPENSATION OF SUPERVISORS CHAPTER XXVI. OF COUNTIES AS BODIES CORPORATE . . , , 333 369 395 416 434 489 550 596 612 679 768 821 848 865 874 CONTENTS. vii. CHAPTER XXVII. Or JUDICIAL PROCEEDINGS BY AND AGAINST TOWNS AND TOWN OFFICERS . ..... . be hoe SB a we Hae er OE CHAPTER XXVIII. OF JUDICIAL PROCEEDINGS BY AND AGAINST CounTIES . . . . 901 CHAPTER XXIX. Or THE REMEDIES By MANDAMUS ...... +. «ee « © 921 / CHAPTER XXX, Or THE FEES OF TOWN AND COUNTY OFFICERS . . ... = ~ 983 APPENDIX. ' CRIMINAL RESPONSIBILITY OF PUBLIC OFFICERS . . . . « . 240 CO? COD (Oz C2 “0D COD CA CP Cha A cp Re CO COD Ae WO e% BPODwmyAMtk wwe ELECTION AND QUALIFICATION, THE LAW OF SUPERVISORS. CHAPTER I. OF THE ELECTION AND QUALIFICATION OF SUPERVISORS. . A Supervisor is a town officer. . Election of Supervisors. Town meetings, how and when held. Supervisors in cities. “ qualifications. Persons not eligible. Offices that cannot be held by Supervisor. . Ineligibility, effect of. . Office becomes vacant by accepting another office, . Contested elections. . Notice of his election. . Refusal to serve—Penalty. . Must take oath of office. $14. § 15. § 16. § iv. § 18. § 19. § 20. § 21. § 22. § 23. § 24. § 25. § 26. § 27. § 28. 8 29. § 30. § 31. § 32. Oath of office, by whom administered. Accompanying certificate. No fee for administering oath. Filing certificate. Acting without taking oath—Penalty—Misdemeanor, What is a public office. Oath of office—form of, and certificate. Term of office. Qualified, meaning of. Forfeiture of office. Resignation of town officers—Acceptance. Removal of Supervisor. Failure to elect at town meeting—Proceedings. Form of warrant of appointment. Filling vacancies by special election. Special town meeting to fill vacancies—Notice. Filling vacancies by Justices of the Peace. Vacancies, when they do not occur. Form of warrant appointing Supervisor in case of vacancy. 1 2 THE LAW OF SUPERVISORS. § 33, Term for which such appointee may hold. § 34. Validity of appointments. § 35. Supervisor must give bond. § 86. Form of such bond and approval. § 87. Action on such bond, by whom brought. § 38. Bond for school moneys. § 39. Form of such bond. § 40. County Treasurer’s certificate of filing bond. § 41. Chapter 179, Laws 1856, not ‘‘ superseded.” § 42. Refusal to give bond a misdemeanor. § 48. Bond by Supervisor appointed to fill vacancy. § 44. Bond for school moneys by Supervisor elected to fill vacancy. § 45. Additional bond under Laws 1866, chap. 78, § 1. § 46. Bond in relation to bonded railroad debt of towns, etc. § 47. Bond in relation to bonded indebtedness of towns, etc. § 48. Failure to give bond, effect of. § 49. Liability of sureties in official bonds. § 1. Supervisor is a Town Officer. A Supervisor is a town officer. 1. 8. 340 (8th ed.) 880, §§ 3-5. Still as a member of the Board of Supervi- sors, he discharges important functions as a county officer. See post, chaps. 18-23. Whether acting individually, as. a town officer, or as a member of the Board of Super- visors, he possesses and can exercise such powers only as. are conferred by statute. 1 R. S. 366 (8th ed.) 1020, § 4; People v. Lawrence, 6 Hill, 244. And when he acts without authority his action is void and may be disregarded. People v. Lawrence, 6 Hill, 244. It is otherwise, however, where his action is merely erroneous, but not for want of power. Id. § 2. Supervisor, election of. It is provided by statute that ‘“‘there shall be chosen at the annual town meeting, in each town, one Super- visor” and other town officers, 1 R. S. 340 (8th ed.) 880, § 3, by ‘‘the citizens of the several towns in this state, qualified by the Constitution to vote for elective officers,” 1 R. S. 339 (8th ed.) 880, § 1, and that “the Supervisor etc., shall be chosen by ballot.” 1B. S. 343 (8th ed.) 888, § 2. § 3. Town meeting, how and when held. Sucis annual town meetings shall be held on some day Town Mrertings—How HE tp. 3 between the first day of February and the first day of May in each year, to be appointed, from time to time, by the Boards of Supervisors of the several counties, by resolu- tion, so that the town meetings of every town in the county shall be held on the same day ; such Boards of Supervisors to fix the time for their respective counties at their pleasure within the period aforesaid ; which resolution, so fixing thetime for said town meetings, when adopted, the said Boards shall cause to be duly published, and the day so appointed shall remain the day established for said town meetings for at least three successive years, and until changed by a resolution of said Boards. Laws 1839, chap. 389, § 15; 1 R. S. 340 (8th ed.) 880, § 2. The time for holding town meetings shall include the first day of February and the first day of May ; and all town meetings held on either of those days shall be valid. Laws 1859, chap. 107, 1 R. S. (8th ed.) 884. In case of failure for any cause to fix the time and place of holding succeeding town meetings as required by law, then the next annual town meeting shall be held on the same day of the week and month and at the same place as the last annual town meeting. Laws 1832, chap. 52, 1 RB. S. (8th ed.) 883. Town meetings shall be kept open in the day-time only, between the rising and setting of the sun, People v. Martin, 5 N. Y. 22, and if necessary may be held two dayssuccessively, butno longer. 1R.S. 342 (8th ed.) 885, § 16. It has been held that after a town meeting has been duly organized it may be adjourned until the next day, Goodel v. Barker, 8 Cow. 286, or to a later hour in the same day. People v. Martin,5 N.Y. 22. By theact of 1874 (Laws 1874, chap. 173, 1; 1R. 8. [8th ed.] 887), an adjournment of a town meeting is prohibited ‘‘ excepting the balloting for town officers and the duties connected therewith.” It is provided by Laws 1881, chap. 564, that in counties having a population exceeding 300,000, Supervisors and Justices of the Peace shall thereafter be elected at 4 THE LAW OF SUPERVISORS. general elections instead of at the annual town meetings. That act in so far as it relates to Justices of the Peace was held to be unconstitutional and it was questioned as to Supervisors. People v. Schiellein, 95 N. Y. 124. § 4. Supervisors in Cities. In several of the cities of the state provision is made by law for the election of more than one Supervisor. In the City of Buffalo, which is divided into thirteen wards, two Supervisors are elected in each of the first twelve wards and one in the thirteenth ward, so as to equalize the number of Supervisors between that city and the towns of Erie County. In the City of New York the Board of Supervisors has ‘been abolished and the provisions of law for electing Supervisors repealed, and the powers theretofore exer- cised by the Supervisors were vested in the Board of Al- dermen, who, in the discharge of such duties, act as Supervisors. Laws 1874, chap. 304; Laws 1882, chap. 410, § 29 et seq. $5. Supervisor’s Qualifications. No person shall be eligible to any town office, unless he shall be an elector of the town for which he shall be chosen. 1 R. 8S. 345 (8th ed.) 889, § 11. Every male citizen of the age of twenty-one years who shall have been a citizen for ten days and an inhabitant of this state one year next preceding an election, and for the last four months a resident of the county, and for the last thirty days a resident of the election district in which he may offer his vote, is an elector. Const. N. Xa art. IL, § 1. § 6. Persons not Eligible. No loan officer appointed under the act of the 14th of March, 1792, entitled “‘ An act for loaning moneys belong- ing to this State,” shall, during his continuance in that office, be eligible to the office of Supervisor. 1R. 9. 345 (8th ed.) 889, §12. The office of loan officer has been abolished. See Laws 1832, chap. 118, and Laws 1850 chap. 337. INELIGIBILITY OF SUPERVISOR. 5 No person holding the office of Commissioner for loan- ing the moneys belonging to the United States, deposited with the State of New York for safe keeping, under the act passed April 4th, 1837, shall be eligible to the office of Supervisor of any town or ward of this state. Laws 1838, chap. 58, §1; 1R. 8. (8th ed.) 587. No Railroad Commissioner of a town shall hereafter be eligible to the office of Supervisor thereof. Laws 1873, chap. 720, §%; 1R. S. (8th ed.) 953. § 7. Offices that cannot be held by Supervisor. No Supervisor of any town * * shall be elected or appointed to hold the office of Superintendent of the Poor. Laws 1829, chap. 352, as amended by Laws 1853, chap. 80; 3 R. S. (8th ed.) 2192. No Supervisor, or clerk of the Board of Supervisors, shall be appointed to, or hold the office of County Treas- urer. 1R.S. (8th ed.) 394, § 18. The office of County Treasurer is an elective office. Laws 1848, chap. 136, § 1, as amended by Laws 1849, chap. 360. Vacancies in such office may be filled by the Board of Supervisors until the first day of January, suc- ceeding the next general election thereafter. Laws 1848, chap. 136, §2; 2R. 5S. (8th ed.) 1051. No * * Supervisor is eligible to the office of Trustee, nor can * be a member of any Board of Education within his district or town. Laws 1864, chap. 558, title VIL, art. 3, § 23; 2 BR. S. (8th ed.) 1291. No Supervisor of any town or ward shall be eligible to the office of Commissioner under the act aforesaid, passed April 4th, 1837, for loaning U. S. deposit funds. Laws 1838, chap. 58, §2; 1R. S. (8th ed.) 587. He could not be a ‘‘loan officer ” under the act of the 14th of March, 1792, entitled ‘‘An act for loaning moneys belonging to this State.” 1R.S8. (8thed.) 889, § 12. § 8. Ineligibility, effect of. The rule of law in this state is that where an officer is by statute prohibited from holding at the same time another office, he is not thereby made merely ineligible 6 THe LAW OF SUPERVISORS. to hold the office, but he is ineligible to an election or appointment thereto. And where such ineligible person received a majority of the votes cast for the office, it was held that, being ineligible, he could not hold the office and that his ineligibility to hold it did not entitle the person who received a minority of the votes cast to hold the office. People v. Clute, 50 N. Y. 451. See also Barker v. People, 3 Cow. 686; Gosling v. Veley, 7 Adol. & Ellis, N.S. 406-489 ; Saunders v. Haynes, 13 Cal. 145 ; State v. Giles, 1 Chand. (Wisc.) 112; State v. Smith, 14 Wisc. 497. § 9. Office becomes vacant by accepting another office. Where an officer is prohibited by law from holding any other public office during the term of office for which he was elected and the statute declares that by an election toand acceptance of such other public office, his office shall immediately become vacant, full force and effect will be given to the statute, and the first office will be held to have become vacant by operation of law. People v. City of Brooklyn, 77 N. Y. 503. See also People v. Green, 58 N. Y.296; People v. Nostrand, 46 N. Y. 375; People v. Carrique, 2 Hill, 93 ; People v. Board of Police, etc., 35 Barb. 535 ; Van Orsdall v. Hazard, 3 Hill, 243. There are instances where provision is made by statute that the acceptance of an office will create a vacancy in another office held by the same person. For instance, a School Commissioner, by his acceptance of the office of Supervisor, Town Clerk or Trustee of a school district, shall vacate his office. Laws 1864, chap. 585, title IL., §5; 2R. 5S. (8th ed.) 1272. § 10. Contested elections. Questions of contested elections to the office of Supervisor, unless determined by the courts, are to be determined by the Board of Supervisors. Laws 1875, chap. 482, $7; 2 R. S. (8th ed.) 1043, § 11. Notice of his election. When the name of the person elected to the office of Supervisor is upon the poll list as a voter, no notice of his ELECTION AND QUALIFICATION. 7 election, other than the reading and recording of the statement of the result of the election need be given. 1 R. 8. (8th ed.) 889, § 9. But if his name be not upon the poll list as a voter it is the duty of the clerk of the town meeting, within ten days thereafter, to transmit to each person elected to any town office, a notice of his election. Ibid. § 10. : The statement of the result of the canvass of votes given at a town meeting held-for the election of town officers, entered by the clerk of the meeting in the minutes of the proceeedings kept by him as required by § 9 above, is intended by the statute as the certificate and evidence of election. In re Baker, 11 How. Pr. 419; People v. Cook, 14 Barb. 288. § 12. Refusal to serve—penalty. If any person chosen or appointed to the office of Super- visor * * * ghall refuse to serve, he shall forfeit to the town the sum of fifty dollars. 1R. 8. 342 (8th ed.) 891, § 25. If any person elected to the office of Supervisor shall not take and subscribe the oath of office required by law, and cause the certificate thereof to be filed, as the law requires, such neglect shall be deemed a refusal to serve. 1R. S. (8th ed.) 890, § 16. When not liable for second penalty. Under a some- what similar statute it was held, where an Overseer of Highways refused to serve, and thereby subjected him- self to the penalty prescribed by the statute, that he could not be reappointed, and, on refusal to serve, be made liable to a second penalty. Haywood v. Wheeler, 11 Johns. R. 432. : The same rule would doubtless be held applicable to the office of Supervisor. § 13. Must take oath of office. Every person chosen or appointed to the office of Sup- ervisor * * * before he enters on the duties of his office, and within ten days after he shall be notified of his election or appointment, shall take and subscribe 8 Tur LAW OF SUPERVISORS. the oath of office prescribed by law. 1 B.S. (8th ed.) 889, 8 13. For form of oath see post, § 20. § 14. Oath of office, who may administer it. ; The oath of office may be taken and subscribed before a Justice of the Peace, or a Commissioner of Deeds. 1R. S. (8th ed.) 889, § 13. It may also be taken before the Town Clerk of the town in which such officer shall be elected. Laws 1838, chap. 172, 1 R. 8. (8th ed.) 892 ; or, before anotary public, who is vested with the same power to take affidavits and to certify to the same in all cases where Justices of the Peace or Commissioners of Deeds may now take and certify to the same. Laws 1859, chap. 360; Laws 1863, chap. 508, § 2; 3 R.S. (8th ed.) 2647. Commissioners of Deeds may be appointed by the com- mon councils of the different cities in this state. Laws. 1848, chap. 75; Laws 1848, chap. 161; 1 R. 8. (8th ed.) 380. The office of Commissioner of Deeds in the towns was abolished by Laws 1840, chap. 238. As a general rule where an inferior officer is required to discharge a duty such as taking an oath before a par- ticular officer, or one of several officers, he cannot legally take the oath before any other officer, and if he does his. act is void. National Bank of Chemung v. City of Elmira, 53 N. Y. 49; Craft v. Merrill, 14 N. Y. 456. While the precise point whether or not the oath of office must be taken before one of the officers named above has not been decided, prudence would dictate that it be done to save any question that might arise. The intimations contained in ex parte Heath, 3 Hill, 42, and Canniff v. Mayor, etc., of N. Y.,4 E. D. Smith, 431, that the provision of the statute is merely directory, would better not be followed. § 15. Accompanying certificate. Whatever officer takes the oath of office, shall certify in writing the day and year when the same was taken, and shall deliver such certificate to the person by whom the oath was made. 1 R. S. (8th ed.) 890, § 14. For certificate see § 20. ELECTION AND QUALIFICATION. 9 § 16. No fee for administering oath. The officer administering the oath and making the certificate shall receive no fee or reward for such service. Laws 1838, chap. 172; 1 R.8. (8th ed.) 892 ; id. 890, § 14. § 17. Filing certificate. Within eight days after taking the oath of office the Supervisor shall cause the certificate to be filed in the office of the Town Clerk. 1R. 5S. (8th ed.) 890, § 15. § 18. Acting without taking oath. If a Supervisor shall enter upon the duties of his office before he shall have taken such oath, he shall forfeit to the town the sum of fifty dollars. 1R. S. (8th ed.) 892, § 29. Guilty of a misdemeanor and forfeits office. A person who executes any of the functions of a public office without having taken and duly filed the required oath of office, or without having executed and duly filed the required security, is guilty of a misdemeanor ; and in addition to the punishment prescribed therefor, he for- feits his right to the office. Penal Code, § 42. §19. What is a public office. One who is appointed to discharge a public duty and receives a compensation in whatever shape, from the Crown or otherwise, is constituted a public officer. Hen- ly v. Mayor of Lyme, 5 Bing. 91. An office is a public charge or employment, and the term seems to comprehend every charge or employment in which the public are interested. Jn re Wood, Hopk. Ch. 6 ; People v. Common Council, 77 N. Y. 508. § 20. Oath of office and certificate. The subjoined form of oath of office and accompanying certificate are a compliance with tne requirements of the Constitution and statute: State ofr New YoRK, County of Erie, SS. Town of Clarence. I, Reuben 8. Myers, of the town of Clarence'in the coun- 10 Tut LAW OF SUPERVISORS. ty and state aforesaid, having been elected Supervisor of said town, do solemnly swear (or affirm) that I will sup- port the Constitution of the United States of America, and the Constitution of the State of New York, and that I will faithfully discharge the duties of the office of Su- pervisor of said town according to the best of my ability. And I do further solemnly swear (or affirm) that I have not directly or indirectly paid, offered or promised to pay, contributed, or offered or promised to contribute, any money or other valuable thing, as a consideration or reward for the giving or withholding a vote at the election at which I was elected to said office, and have not made any promise to influence the giving or withholding any such vote. REUBEN S. MYERS. Subscribed and sworn to before me this day of March, 1888. Gro. KE. PuGSLEY, Justice of the Peace. Accompanying certificate. State oF NEw YoRK, County of Erie, Ss Town of Clarence. I, George E. Pugsley, a Justice of the Peace in and for the Town of Clarence, in the county aforesaid (or Town Clerk of the Town of Clarence in the county aforesaid) do hereby certify that on the day of March, 1888, be- fore me personally appeared Reuben S. Myers, of the town aforesaid, who then and there duly took and sub- scribed the foregoing oath of office. GEORGE E. PUGSLEY, Justice of the Peace. § 21. Term of office. Town officers shall hold their office for one year, and until others are chosen or appointed in their places, and have qualified. 1R. S. (8th ed.) 892, § 30. This statute has no application to incorporated cities. The tenure of office of Supervisors in cities is regulated by their charters. ELECTION AND QUALIFICATION. 11 Since the adoption of the amendment to article ITI. of th Constitution of this state at the election in 1874, the Legislature is, by § 18 of that article, prohibited from passing any local bill providing for the election of mem- bers of Boards of Supervisors, and of course any local law for such purpose passed since then is unconstitutional. People v. Hoffman, 60 How. Pr. 324, affirmed 24 Hun, 142. § 22. “* Qualified ’’—meaning of. To qualify for an office, means to take an oath of office, and the above section implies that this duty rests upon all persons chosen or appointed town officers. People v. McKinney, 52 N. Y. 380; N.Y. Const., art. XII.; Badger v. United States, 98 U.S. 599. An additional qualification is the giving of the requi- site security. See § 35, ‘‘ Supervisor must give bond.” § 23. Forfeiture of office. A sentence of imprisonment in a state prison for any term less than for life, forfeits all the public offices * * held by the person sentenced. Penal Code, § 707. So, a person who executes any of the functions of a public office without having duly taken and filed the requisite oath of office, as well as filed the requisite security, forfeits his right to the office. Penal Code, § 42. Notwithstanding the acts of such person would be those of a de facto officer, and, as to third persons, would be valid. Penal Code, § 43. A public officer who asks, receives or agrees to receive a bribe, whereby his official action is to be influenced, forfeits his office and is forever disqualified from holding any public office under this state. Penal Code, § 45. So, an officer asking or receiving a reward for appoint- ing or procuring an appointment to a public office, on conviction, forfeits his office. Penal Code, § 53. See Gray v. Hook, 4 N. Y. 449. So, if an officer audits, or is concerned in auditing, false claims, on conviction thereof he forfeits his office and is rendered incapable of holding any office or place of trust thereafter. Penal Code, § 166. 12 THe LAW OF SUPERVISORS. § 24. Resignation by town officers. Any three Justices of the Peace of a town may, for suf- ficient cause shown to them, accept the resignation of any town officer of their town ; and, whenever they shall accept any such resignation, they shall forthwith give notice thereof to the Town Clerk of the town. 1R. S. (8th ed.) 894, § 33. While the statute requires that the officer resigning should show “‘sufficient cause for his resignation,” still, if the Justices accept the resignation without any particular cause being shown, there is no doubt but what the resig- nation would be effectual to create a vacancy. It is the acceptance of the resignation, and not the sufficiency of the cause, that creates the vacancy. It will be observed that three Justices of the Peace may accept the resignation of any town officer of thezr town. Section 87 of the same statute provides that whenever a vacancy shall occur in any town office, and there shall be less than three Justices residing in the town, the Jus- tices residing in the town may associate with them Jus- tices of the Peace from an adjoining town to fill the vacancy. Asa vacancy by resignation, under section 33, cannot occur unless the resignation is accepted by three Justices of thet own, it would follow that it is not com- petent for a Justice or Justices to associate with them a Justice or Justices from an adjoining town for the purpose of accepting such resignation and thereby to create a vacancy, as the provision only permits them to be asso- ciated to fill a vacancy, not to create one. Where no particular mode of resigning an office is spe- cially provided, and the appointment is not by deed, neith- er 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 acceptance, in such case. Van Orsdall v. Hazard, 3 Hill, 243. _ The acceptance of a resignation may be manifested by the acts of those authorized to receive it : ¢. g., appoint- ing asuccessor. Ibid. A resignation in writing not under seal is sufficient, ELECTION AND QUALIFICATION. 13 notwithstanding the statute may require an appointment to be under seal, where the statute is silent as to a seal on the resignation. Gilbert v. Luce, 11 Barb. 91. A Supervisor, although his resignation is tendered to and accepted by the proper authority, continues in office, and is not relieved from his duties and responsibilities as a member of the Board of Auditors, etc., until his succes- sor is appointed or chosen and qualified. Badger v. Unit- ed States, 93 U.S. 599. § 25. Removal of Supervisor. There is no provision either in the Constitution or in the statutes of this state directly providing for the removal of a Supervisor from office. In case he becomes incapable of serving, he may be superseded by the election of his successor at a special town meeting, 1 R. S. (8th ed.) 894, § 34, as amended by Laws 1881, chap. 391, or in case of failure to hold such special town meeting for such purpose, a successor may be appointed by three Justices of the Peace. 1 R. 8. (8th ed.) 895, § 35. The statute is silent as to the means of determining, or ‘by whom such incapacity shall be determined. Presum- ably it is to be determined by the not less than twenty-five legal voters who are empowered to present a petition to the Town Clerk to call a special town meeting. Still, there is nothing in the statute providing for giving notice to the incumbent, nor for a hearing upon any charges against him. It would be difficult to draw a statute more vague than section thirty-four, in this regard. Should a Supervisor neglect or refuse to give the bonds required by law, it would furnish ground for a direct pro- ceeding against him, in court, to vacate his office. Cronin v. Stoddard, 97 N. Y. 271; Foot v. Stiles, 57 N. Y. 399. So, his office will become vacant upon a conviction of bribery. See § 23, ‘‘ Forfeiture of office,” supra. § 26. Failure to elect at town meeting—proceedings. If any town shall omit or neglect, at its annual town 14 THe LAW OF SUPERVISORS. meeting, to choose its proper town officers, or any of them, it shall be lawful for any three Justices of the Peace of said town, by a warrant under their hands and seals, within five days after such town meeting, to appoint such officer or officers ; and the person or persons so appointed shall hold their respective offices until others are chosen or appointed in their places; and shall have the same powers and be subject to the same duties and penalties as if they had been duly chosen by the electors ; but, if the Justices of the Peace fail to so appoint, it shall be the duty of the Town Clerk, within thirty days thereafter, to call a special town meeting for the purpose of electing such officer or officers. 1R. S. (8thed.) 894, § 31, as amended by Laws 1874, chap. 548. In case of a tie vote. Where an election results in a tie vote, it is a proper case for an appointment under above section, People v. Van Horne, 18 Wend. 515; People v. Seaman, 5 Denio, 409 Wildy v. Washburn, 16 Johns. 49, and the person so ap- pointed will be entitled to hold the office as against ‘ a person elected subsequently at a special town meeting. People v. Van Horne, 18 Wend. 515; Tappan v. Grey, 9° Paige, 507. But the facts that the election officers declared the vote a tie and an appointment was subsequently made as above provided, do not prevent the court, in a proceeding by quo warranto, from determining that there was nota tie vote but that one of the parties voted for was elected ; in which case such person would be legally entitled to hold the office. People v. Seaman, 5 Denio, 409. Where the three Justices convened and appointed one of their own number, the appointment was held a nullity for the reasons that a man cannot appoint himself to an office and an appointment by two Justices of the Peace is not a compliance with the statute. People v. Thomas, 33 Barb. 287. The Justices making such appointment shall cause the warrant to be forthwith filed in the office of the Town ELECTION AND QUALIFICATION. 15 Clerk, who shall forthwith give notice to the person appointed. 1R. S. (8th ed.) 894, § 32. § 27. Form of warrant of appointment. Strate or New York, County of Erie, SS Town of Tonawanda. Whereas, at the annual town meeting fala in and for the Town of Tonawanda aforesaid on the Tuesday of March, A. D. 1888, the said. town did omit or neglect to elect a Supervisor for said town. Now, therefore, we, the undersigned three Justices of the Peace of said town, by virtue of the power vested in us by the statute in such case made and provided, do hereby nominate and appoint Matthew Scanlon of said town, Supervisor of said town, to hold said office until another person is chosen or appointed in his place as provided by law ; and this shall be your warrant therefor. In witness whereof we have hereunto set our hands and seals this day of March, A. D. 1888. JOHN K. PATTON [seat], Justices of tha SAMUEL G. JOHNSON [SEAL], Peace. SIMON BELLINGER [sEat], § 28. Filling vacancies by special election, If any person elected, chosen or appointed to the office of Supervisor, Overseer of the Poor, or other town office, shall refuse to serve, or shall die, or remove out of town, or become incapable of serving, before the next annual town meeting after he shall be elected, chosen or appoint- ed, the Town Clerk shall, within eight days after the happening of such vacancy, on the petition of not less than twenty-five legal voters of the town, call a special town meeting for the purpose of supplying thesame. 1 R. S. (8th ed.) 894, § 34, as amended by Laws 1881, chap. 391. § 29. Special town meeting to fill vacancy—Notice. The following notice will be sufficient. At least eight days’ notice of a special town meeting shall be given by the Town Clerk by written notices under his hand, to be posted at four or more of the most public places in the 16 Tue Law oF SUPERVISORS. town, which notices shall specify the time, place and pur- pose of such meeting. 1 R.S. (8th ed.) 882, § 8. No bus- iness can be transacted at such special town meeting other than such as is specified in the notice. 1 RB. S. (8th ed.) 882, § 7. Notice of special election. Whereas, within the last eight days, a vacancy has oc- curred in the office of Supervisor of the Town of Ham- burg, in the County of Erie, by reason of the refusal to serve (or of the death, or resignation, or removal out of the town, or because of his becoming incapable of serv- ing, as the case may be) of Joseph L. Fairchild, heretofore elected (chosen or appointed, as the case may be) to said office of Supervisor by said town, and, Whereas, a petition of more than twenty-five legal vot- ers of said town has been presented to me requiring a special town meeting to be called to fill such vacancy by an election, Now, therefore, a special town meeting for the Town of Hamburg is hereby called to be held at the Town Hall in the village of White’s Corners, on Tuesday, the seventh day of June, A. D. 1888 (must be a day within fifteen days after happening of vacancy, 1 B.S. [8th ed.] 895, § 35), for the purpose of electing a Supervisor to fill such vacancy, which special town meeting will be held and conducted by the officers, and in the manner pre- scribed by law for holding town meetings. Dated at the town of Hamburg this 30th day of May, A. D. 1888. ° FRANKLIN D. LOCKE, Town Clerk. § 30. Filling Vacancies by Justices of the Peace. In case a special town meeting be not so called, or if the electors shall not within fifteen days after the happening of such vacancy, supply the same by an election at town meeting, then the same shall be filled by appointment to be made by not less than three Justices of the Peace of the town. Ibid. and 1 R. S. (8th ed.) 895, § 35. ELECTION AND QUALIFICATION. iy Where there are less than three Justices in the town. Where a vacancy thus occurs and the appointment devolves upon the Justices of the Peace and there shall be jess than three Justices residing in the town in which the vacancy shall occur, the Justice or Justices residing in such town may associate with themselves one or more Justices of the Peace from any adjoining town, as may be necessary to make the number of three ; and such three Justices shall have the like power to fill such vacancy as if they were respectively Justices of the town in which the vacancy occurred. 1R.S5. (8th ed.) 895, § 37, as added by Laws 1830, chap. 320, § 3. Appointment—how made. Such appointment shall be made by warrant under the hands and seals of the three Justices of the Peace, which warrant shall be filed in the Town Clerk’s office and the Town Clerk shall give notice to the person appointed in like manner as pre- scribed in § 26 above. See § 5. Who eligible to be appointed. Such appointee must be an elector of the town and must possess the same qualifications as are prescribed above. $31. Vacancies—when they do not occur. The provisions of the statutes relating to a special town meeting to filla vacancy relate to cases where officers have been duly elected or appointed, and the offices have subsequently been vacated by refusal to serve, death, res- ignation, removal or incapacity. People v. Van Horne, 18 Wend. 515; Hayden v. Bucklin, 9 Paige, 512; 1 R. 8. {8th ed.) 894-5, §§ 34-87. As a Supervisor holds over until his successor is elected or appointed and qualifies, 1 R. S. (8th ed.) 892, § 30, in such case the office does not become vacant, and the call for a special town meeting to elect a successor must be issued pursuant to 1 R. 8. (8thed.) 894, § 31, as amended by Laws 1874, chap. 543, and not under 1 R. S. (8th ed.) 894-5, 8§ 34-37. See Tappan v. Grey, 9 Paige, 507. A mere failure to elect does not constitute a vacancy 2 18 THE Law OF SUPERVISORS. unless a statute so specifically provides. See People v- Crissey, 91 N. Y. 634. § 32. Form of warrant appointing Supervisor in Case of vacancy. STaTE oF NEw YORK, SS County of Erie, Town of Amherst. Whereas, a vacancy exists in the office of Supervisor of the Town of Amherst aforesaid by reason of the refusal to serve (or of the death, or resignation, or removal out of the town, or his having become incapable of serving, as the case may be) of Edward B. Miller, who was heretofore elected (chosen or appointed) to such office in said town. Now, therefore, we, three of the Justices of the Peace of said town (or two of the Justices of the Peace of said town and Andrus McNeely,a Justice of thePeace of the adjoining town of Newstead) by virtue of the powers vested in us by the statute in such case made and provided, do hereby nom- jnate and appoint J. Wayne Dodge,of said town of Am- herst, Supervisor of said town until another person is chosen or appointed in his place, as provided by law ; and this shall be your warrant therefor. In witness whereof we have hereunto set our hands and seals this day of March, A. D. 1888. EUGENE V. ROGERS [sEat}, | Tushees SF the MARTIN HOCHADEL [sEAL], 5 ANDRUS McNEELY [seat], — | Sone: § 33. Term for which appointee to fill vacancy may hold. While a Supervisor and other officers elected at the annual town meeting may hold office for one year and until his successor is elected and qualified, 1 R. S. (8th ed.) 892, § 30, the rule is different as to appointees to fill vacancies. By the express terms of the Constitution such appointee ‘‘shall hold his office by virtue of such appoint- - ment no longer than the commencement of the political year next succeeding the first annual election after the happening of the vacancy. Const., art. X., § 5. The political year begins on the first day of J anuary. Id. § 6. ELECTION AND QUALIFICATION. 19 This provision of the Constitution applies only to filling vacancies in elective offices, and does not apply to a Su- perintendent of the Poor, who may be appointed or elected. People v. Comstock, 78 N. Y. 356. § 34. Validity of appointment. It is a general rule of law that to render their acts valid local and inferior tribunals and officers, in making appoint. ments, must pursue the mode prescribed by the statute. Any substantial departure from its requirements will render their acts invalid. But, where their action isso far in compliance with the requirements of the statute that they obtain jurisdiction of the subject matter—even although irregular in matters of detail—their action will be so far valid as that it cannot be inquired into in a col- lateral proceeding. People v. Seaman, 5 Denio, 409; Foot v. Stiles, 57 N. Y. 399. But their action is always open to investigation in a direct proceeding in court to test the validity thereof, and. if found invalid it will afford no defence to such proceed- ing, and will be set aside or disregarded. People v. Sea- man, 5 Denio, 489 ; People v. Cook, 8 N. Y. 67. The appointment by the Justices of the Peace is a judi- cial act. Wood v. Peake, 8 Johns. 69; Wildy v. Wash- burn, 16 Johns. 49; People v. Seaman, 5 Denio, 412. Power of appointment can not be delegated. Where the power of appointment is vested in certain offi- cers, such power cannot be delegated, Auburn Acade- my v. Strong, Hopk. 278, and anappointment by any other person or officers is void and will not bestow upon the appointee even the outward symbols of the office, and all official acts by such appointee are equally void. People v. Carter, 29 Barb. 208 ; People v. Albany C. P., 19 Wend. 27. § 35. Supervisor must give bond. Every Supervisor now elected to office in this state, shall within sixty days after the passage of this act, execute and deliver to the Town Clerk of his town, his bond, in 20 THE LAW OF SUPERVISORS. such penalty and with such sureties as the Board of Town Auditors shall prescribe, conditioned for the faithful dis- charge of his official duties, and that he will well and truly keep and pay over and account for all moneys and property belonging to his town, and coming into his hands as such Supervisor ; and every Supervisor hereafter elected shall, within thirty days after entering upon his office, make and deliver his bond as aforesaid, and such bond shall, after its execution, be presented to the Board of Town Auditors for their approval as to its form, and the sufficiency of the sureties therein ; and until the same shall be so approved, none of the moneys, books, docu- ments, papers or property of the town shall be turned over or delivered to such Supervisor-elect. Laws 1866, chap. 534, § 2, as amended by Laws 1868, chap. 721, as amended by Laws 1888, chap. 465. § 36. Form of bond under above statute. Know all men by these presents, that we, John B. Weber, as principal, and William White and Henry R. Jones, as sureties, all of the Town of West Seneca, in the County of Erie and State of New York, are held and firmly bound unto Frederick R. March as Town Clerk of said town, in the penal sum of (as prescribed by Board of Town Auditors), tobe paid to the said Frederick R. March, as Town Clerk aforesaid, or to his successors in office ; for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals and dated this twelfth day of July, A. D. 1888. Whereas, the above bounden John B. Weber was on the day of March, A. D. 1888, duly elected Supervisor of the Town of West Seneca in said County of Erie. Now, therefore, the condition of this obligation is such that if the said John B. Weber shall faithfully discharge his duties as such Supervisor of said town and shall well and truly keep and pay over and account for all moneys and property belonging to said town that may come to his ELECTION AND QUALIFICATION. 21 hands, as such Supervisor, without fraud or delay, then this obligation to be void ; otherwise to remain in full force and effect. JOHN B. WEBER [seat], WILLIAM WHITE [seat], HENRY R. JONES [seat]. Form of acknowledgment to be added. State or New YorK, County of Erie, Ss Town of West Seneca. On this twelfth day of July, A. D. 1888, before me, the undersigned, personally appeared John B. Weber, Wil- liam White and Henry R. Jones, to me personally known to be the same persons mentioned in and who executed the foregoing instrument, and severally acknowledged that they executed the same. VICTOR A. IRR, Justice of the Peace. Justification of sureties. Srate or New YORK, | ss County of Erie. : William White and Henry R. Jones, the sureties men- tioned in the foregoing instrument, being severally duly sworn each for himself, says that he is a resident and free- holder (or householder) within this state and is worth dollars over and above all the debts and liabilities which he owes or has incurred and exclusive of property ex- empt by law from levy and sale on execution. WILLIAM WHITE. HENRY R. JONES. Severally subscribed and sworn to before t me this 12th day of July, A. D. 1888. Victor A. IRR, Justice of the Peace. Approval by Board of Town Auditors. TowN OF WEST SENECA, 8s. We hereby approve the above (or within) bond as to its 29 Toe Law OF SUPERVISORS. form and manner of execution and of the sufficiency of the sureties therein. T U, Vw, xX Y, . Board of Town Auditors. The above statute requires this bond to be filed in the office of the Town Clerk of the town. § 37. Action on such bond—by whom brought. An action upon such a bond for a breach of the condi- tion thereof may be brought by the successor in office of the Supervisor giving it. It is not a bond to the Town Clerk as an individual but in his official capacity, and is a compliance with the statute. Sutherland v. Carr, 85 N. Y. 105. § 38. Bond for school moneys. Immediately on receiving the Comniissioners’ certifi- cate of apportionment, the County Treasurer shall require of each Supervisor, and each Supervisor shall give to the County Treasurer, in behalf of the town, his bond, with two or more sufficient sureties, approved by the treasurer, in the penalty of at least double the amount of the school moneys set apart or apportioned to the town, and of any such moneys unaccounted for by his predecessor ; conditioned for the faithful disbursement, safe keeping and accounting for such moneys, and of all other school moneys that may come into his hands from any other source. Suit on. such bond. If the condition shall be broken the County Treasurer shall sue the bond in his own name in behalf of the town, and the money recovered shall be paid over to the successor of the Supervisor in default, such successor having first given security as aforesaid. Laws - 1864, chap. 555, title III. art. 3d, part of § 31, as amended by Laws 1875, chap. 567, § 11; 2 R. 8. (8th ed.) 1281, § 31. § 39. Bond under above statute. Know all men by these presents, that we, William L. ELECTION AND QUALIFICATION. 28 Paxon, Supervisor of the Town of Newstead, in the County of Erie and State of New York, as principal, and Napoleon B. Wickwire and Nicholas B. Bratt of the same town, as sureties, are held and firmly bound unto Jasper L. Under- wood, as Treasurer of the County of Erie, in the penalty of {a sum at least double the amount of school moneys set apart or apportioned to the town) to be paid to the said Jasper L. Underwood, as Treasurer of said county, his successor in office, attorney or assigns, for which pay- ment well and truly to be made we bind ourselves, our heirs, executors, administrators and assigns jointly and severally, firmly by these presents. Sealed with our seals and dated the thirteenth day of June, A. D. 1888. , The condition of this obligation is such that if the above bounden William L. Paxon,:as Supervisor, as aforesaid, shall safely keep, faithfully disburse and fully and justly account for and pay over all the school moneys set apart or apportioned to said Town of Newstead and all other moneys that may come into his hands as such Supervisor from any other source, then this obligation to be void, otherwise to remain in full force and effect. WILLIAM L. PAXON [seat], N. B. WICKWIRE ([sEat], NICHOLAS B. BRATT [sEat]. The acknowledgment and justification of sureties should be the same as in preceding bond. See § 36. The County Treasurer, on approving such bond, will place upon it the following indorsement : Erte County, ss. I hereby approve of the above (or within) bond as to its form and manner of execution, and of the sufficiency of the sureties therein. Dated June 13, 1888. JASPER L. UNDERWOOD, Treasurer of Erie County. § 40. County Treasurer’s centificate of filing bond. ; Upon filing this bond with the County Treasurer he is 94 THe LAW OF SUPERVISORS. required to furnish the Supervisor with a certificate of the facts, to be delivered to his predecessor in office. Laws 1864, chap. 555, title IV., § 6, { 7, 2. R. 8. (8th ed.) 1283, § 6. § 41. Chap. 179, Laws 1856, not “ superseded.” It is stated (2 R. S. [7th ed.] 1202, § 1, note) that chapter 179, Laws 1856, entitled ‘‘An act to provide for a more thorough supervision and inspection of common schools, and further to amend the statutes relating to public instruction in this state,” has been ‘‘ superseded” by Laws 1865, chap. 555. This statement is incorrect, because, since the publication of that edition of the statutes, the Legislature has recognized that law as in force by amending § 16 (Laws 1883, chap. 414) and by expressly repealing § 18 (Laws 1886, chap. 593, §1, 4 31). Many of the provisions of chap. 179 have been incorpo- rated in chap. 555, with alterations ; but many sections of chap. 179 remain intact and unaffected by chap. 555. Within the peculiar rules of law in this state in rela- tion to repeals by implication, it may very well be doubted whether that chapter is repealed. Powers v. Shepard, 48 N. Y. 540. Whether repealed or “superseded” or not, the provis- ions of chap. 179 in relation to security to be given by Supervisors are substantially incorporated in chap. 555, Laws 1864, so that the above bond will be sufficient under either act. § 42. Refusal to give security a misdemeanor—County Judge may appoint. The refusal of a Supervisor to give such security shall: be a misdemeanor, and any fine imposed on his convic- tion thereof shall be for the benefit of the common schools of the town. Upon such refusal, the moneys set apart and appor- tioned to the town shall be paid to and disbursed by some other officer or person to be designated by the County Judge, under such regulations and with such safe-guards as he may prescribe ; and the reasonable compensation ELECTION AND QUALIFICATION. 25. of such officer or person, to be adjusted by the Board of Supervisors, shallbeatown charge. Laws1864, chap. 555, T. IIL, art. 3,§3; 2R.8. (8th ed.) 1289, § 32. § 43. Bond by Supervisor appointed to fill vacancy. Whenever the office of Supervisor shall become vacant, by reason of the expiration of his term of service or other- wise, the County Treasurer shall require the person elected or appointed to fill such vacancy to execute a bond, with two or more sureties, to be approved by the Treasurer, in the penalty of at least double the sum of the school moneys remaining in the hands of the old Supervisor, when the office became vacant, conditioned for the faithful disbursement, safe keeping and accounting of such moneys. But the execution of this bond shall not relieve the Supervisor from the duty of executing the bond first above mentioned. Laws 1864, chap. 555, title IIL, art. 3, part of § 31,as amended by Laws 1875, chap. 567, § 11; 2B. S. (8th cd.) 1281, § 31. § 44. Bond for school moneys by Supervisor elected to fill vacancy. Know all men by these presents, that we, Albert Wil- ber, Supervisor of the Town of Collins, in the County of Erie, and State of New York, as principal, and John M. Greene and Henry L. Scott, of the same town, as sureties, are held and firmly bound unto William B. Sirret, as treasurer of the County of Erie in the penalty of (a sum double the amount of school moneys in the old Su- pervisor’s hands) to be paid to the said William B. Sirret, as Treasurer of said county, his successor in office, attor- ney or assigns ; for which payment well and truly to be made, we bind ourselves, our heirs, executors, admin- istrators and assigns, jointly and severally, firmly by these presents. Sealed with our seals and dated this twelfth day of July, A. D. 1888. The condition of this obligation is such that if the above bounden Albert Wilber, as such Supervisor as aforesaid, shall faithfully disburse, safely keep and fully account 26 Tur LAW OF SUPERVISORS. for and pay over all moneys which may come to his hands as such Supervisor from his predecessor in office, without fraud or delay, then this obligation to be void, otherwise to remain in full force and virtue. ALBERT WILBER [SEAL], JOHN M. GREENE [seau], HENRY L. SCOTT [SEAL]. Then follow acknowledgment and justification of sureties as in preceding forms. See § 36. Upon presentation to the County Treasurer he will en- dorse the following approval upon the bond : County oF ERIE, ss. Ido hereby approve of the above (or within) bond as to the form and manner of execution, and of the suffi- ciency of the securities therein. WILLIAM B. SIRRET, Treasurer of Erie County. Upon filing this bond with the County Treasurer, he is required to furnish the Supervisor with a certificate of the facts to be delivered to his predecessor. Laws 1864, chap. 555, T. IV. §6 97; 2B. 8S. (8th ed.) 1288, § 6. It is upon the delivery of such certificate to his pred- ecessor that he becomes entitled to receive the moneys in his predecessor’s hands. § 45. Additional bond under L. 1886, chap. 78, § 1. In addition to the bond or bonds that the Supervisors of the several towns of this state are now by law required to execute, the Supervisor of every town in this state which has a local school fund belonging to said town, shall, before entering upon the duties of his office, execute a bond with two or more sureties, in double the amount of all school moneys, funds or securities belonging to such town, and which, by law, is under the control or in the custody of the Supervisor of such town; such bond to be in accordance with the requirements of section twenty of chapter one hundred and seventy nine, Laws ELECTION AND QUALIFICATION. 27 of eighteen hundred and fifty-six, and subject to all of the provisions thereof except as herein specified. Laws 1866, chap. 78, §1; 1 R. S. (8th ed.) 892. While this section has not been specifically repealed, still the whole ground covered by it is embraced in sec- tion 31, title III., chap. 555, Laws 1864, as amended by Laws 1875, chap. 567, §1, asgivenabove. I give this sec- tion here, ‘but it would seem that the bond required by § 31 of the act of 1864 as amended, is broad enough to render it unnecessary to give a bond under this act. It is difficult to determine from the many decisions of the courts of this state when a statute is repealed by implication. Powers v. Shepard, 48 N. Y. 540; Staats v. Hudson River R. R. Co., 4 Abb. Ct. Ap. Dec. 287; and see Knapp v. City of Brooklyn, 97 N. Y. 520; Dexter, etc., Plank Road Co. v. Allen, 16 Barb. 15 ; People v. City of Brooklyn, 69 N. Y. 605. Action on such bond, how brought. When the Super- visor of a town, acting under Laws 1856, chap. 179, § 27, as ‘trustee of the gospel and school lots,” improperly invests and thereby loses moneys belonging to such fund, an action to compel him to account and make good the loss thereby occasioned should be brought by his succes- sor, who should describe himself in the title of the action as the trustee of the gospel and schoollot. Taylor v. Gur- nee, 26 Hun, 624. § 46. Bond in relation to bonded railroad debt of towns, ete. The Supervisor of any town or ward of any city, receiving or disbursing any funds on account of the bonded railroad debt of said town or ward, before receiv- ing or disbursing any such funds, by virtue of any act of this state, shall execute to the town a bond with sureties who shall be able to justify, in at least double the amount of the money to be received by him, as near as can be ascertained ; said bond to be approved by the Town Clerk, and conditioned for the proper and due disbursement of moneys received on account of bonded railroad debt and the faithful accounting thereof, which bond, when given, 98 THE Law OF SUPERVISORS. will be filed with the Town Clerk. Laws 1882, chap. 68, §1. § 47. Bond in relation to bonded indebtedness of towns, etc. Provision is made for retiring the bonded indebtedness of towns and incorporated villages, and the Supervisor of a town, or the president of the village, owing a bonded debt, before receiving the money from the County Treasurer and applying the same to the payment of such bonds, security must be given for the same in double the amount received. The form of security under either of the last two pre- ceding paragraphs can readily be drawn from the forms above given. § 48. Failure to give bond, effect of. The statute does not say what the effect of a failure to give a bond shall be, except that in relation to the giving of a bond for school moneys (see § 38, supra), and that is that the Supervisor neglecting or refusing to give such bond shall be guilty of a misdemeanor. The statute doesnot declare that a ‘failure to give” bond shall work a forfeiture of his office, but, in analogous cases, it has been held that failure to give official bond, while it does not create a vacancy, furnishes cause for a forfeiture of the office by a direct proceeding against the officer, for that purpose. Cronin v. Stoddard, 97 N. Y. 271; Foot v. Stiles, 57 N. Y. 399. Such action should be in the name of the people against the delinquent officer, under article sixth of chapter sixteen of the Code of Civil Procedure. § 49. Liability of sureties in official bonds. Bonds given by a public officer for the faithful per- formance of his duties, extend to and include all such duties as may be added to the office, or imposed upon the officer, as such. Board of Education v. Quick, 99 N. Y. 138 ; People v. Vilas, 36 N. Y. 469. The sureties to the bond of a public officer are not dis- charged by the imposition upon their principal of new ELECTION AND QUALIFICATION. 29 duties of a similar nature and character, by a subsequent act of the Legislature. People v. Vilas, 36 N. Y. 459; Board of Supervisors of Monroe v. Clark, 92 N. Y. 391; Mayor, etc., of New York v. Kelly, 98 N. Y. 467; Mayor, etc., of New York v. Sibberns, 3 Abb. Ct. Ap. Dec. 266. Especially where the acts for which it is sought to hold the surety were not done in pursuance of such new authority. Mayor, etc., of New York v. Sibberns, 3 Abb. Ct. Ap. Dec. 266. Conceding that no liability is imposed upon such sureties on account of such increased duties, their obligations hav- ing reference to the usual and ordinary duties of the treas- urer, remain unaffected. Board of Supervisors of Monroe v. Clark, 92 N. Y. 391; Gaussen v. United States, 97 U. S. 584. The sureties to the bond of a Supervisor, conditioned that he will account for all moneys belonging to the town coming into his hands as such Supervisor, are only liable for moneys which their principal is authorized and bound by law to receive, in his official capacity, as dis- bursing agent of the town, and not for that of which he becomes the voluntary custodian, or which is ordered by the Board of Supervisors without authority of law, to be paid to him. People v. Pennock, 60 N. Y. 421. Upon the death of one joint obligor in an obligation which is joint, and not several, and which he executed simply as surety, his estate is absolutely discharged from all liability, both in law and equity. Risley v. Brown, 67 N. Y. 160; Getty v. Binsse, 49 N. Y. 385; Wood v. Fisk, 63 N. Y. 245; Richardson v. Draper, 87 N. Y. 338; Davis v. Van Buren, 72 N. Y. 587; Hauck v. Craighead, 67 N. Y. 482. And this is so, where the surety died after recovery of a joint judgment against all the obligors. Risley v. Brown, 67 N. Y. 160; United States v. Price, 9 How. (U. 8.) 83. ie principle established by these decisions seems to have been changed by § 758 of the Code of Civil Procedure, which provides that the estate of one joint obligor is not 30 Tue LAW OF SUPERVISORS. discharged by his death even where he was a mere surety ; but that section does not apply to obligations entered into before it was enacted. Randall v. Sackett, 77 N. Y. 480. But the exemption of the estate of a deceased surety in a joint obligation did not prevent a co-surety from compelling contribution, where he was compelled to pay. Johnson v. Harvey, 84 N. Y. 363. A surety in an official bond of an officer whose term of office is one year, is not liable for defaults occurring beyond the first year, so as to include a new term by appointment or election. Hassel v. Long, 2 Maule & Selwyn, 371; Kingston Mutual Ins. Co. v. Clark, 33 Barb. 196 ; Overacre v. Garrett, 5 Lans. 156; Peppin v. Cooper, 2 Barn. & A. 4381. But, as a Supervisor holds his office for the term of one year, and until his successor is elected and qualifies, the sureties in his official bond will continue liable until the election and qualification of his successor. A surety is not liable beyond the penalty mentioned in the bond. Fairlie v. Lawson, 5 Cow. 424; Clark v. Bush, 3 Cow. 151; Dickerson v. Cook, 3 Duer, 324. The liability of a surety is always strictissimi juris, and may not be extended by construction beyond his specific engagement. National Mechanics’ Banking Association v. Conkling, 90 N. Y. 116; People v. Pen- nock, 60 N. Y. 426. Books AND PAPERs. 81 CHAPTER II. OF DUTIES PERFORMABLE BY SUPERVISOR INDIVIDUALLY. PROCURING BOOKS AND PAPERS FROM PREDECESSOR, § 50. Powers and duties generally. § 51. Powers and duties classified. § 52, Demand of records, etc., of predecessor. § 53. Demand when complied with—receipt. § 54, When delivery of records, etc, is refused. § 55. Proceedings to compel delivery—nature of proceedings. § 56. Claimant’s petition to County Judge. § 57. Order to show cause. § 58. Proceedings thereon—affidavit of delivery. § 59. When such affidavit not made. § 60. Answer to petition. § 61. Hearing of parties. § 62. Order for delivery and for commitment. § 63. Service of order. Form of commitment. § 64, Search warrant. § 50. Powers and duties generally. As we have seen, as soon as a Supervisor has taken and filed his oath of office he can enter upon the discharge of his duties. But he cannot compel his predecessor to surrender the books and papers pertaining to the office, or to pay over to him the school moneys on hand, until he has given the security required by Jaw and procured from the County Treasurer the certificate that his general bond has been filed, Laws 1864, chap. 555, title IV., § 6, 4 7, 2 R.S. (8th ed.) 1288, § 6, and has given the general bond required by Laws 1866, chap. 534, § 2, as amended by Laws 1868, chap. 721, 1 RB. 8. (8th ed.) 899. Not being an officer at common law, his powers, duties and obligations are regulated by thestatute, except where he is vested with a discretion by some statute. 1 R. S. (8th ed.) 1020, § 4; People v. Lawrence, 6 Hill, 244. 82 Tue LAW OF SUPERVISORS. When he exceeds his authority, his actions are void, People v. Lawrence, 6 Hill, 244; and he will render himself personally liable as a trespasser, or for losses or damages sustained. His only safe course to pursue is to acquaint himself with his duties, and confine himself to the discharge there- of, within the rules of law. § 51. Powers, duties and jurisdiction classified. A Supervisor has power and jurisdiction and duties to perform, 1. As an officer of the town. 2. As a member of the Board of Supervisors, in the dis- charge of duties as a county officer. 3. As a member of the Board of County Canvassers when he acts neither as a town or county officer, but under special statutory authority. As a town officer his powers are exercised, and his duties are performed : 1. By himself alone. 2. In connection with other officers of the town. 3. Miscellaneous duties, partly by himself and partly in connection with others. We will now proceed to treat of his powers, duties and jurisdiction according to the foregoing classification. HIS DUTIES AS A TOWN OFFICER. 1. Performed by himself individually. § 52. Supervisor to demand records, etc., of predecessor. Whenever the term of office of any Supervisor or Town Clerk shall expire, and another person shall be elected or appointed to such office, it shall be the duty of each suc- ceeding Supervisor or Town Clerk, immediately after he shall have entered on the duties of his office, to demand of his predecessor all the records, books and papers under his control, belonging to such office. 1R. 8. (8th ed.) 914, $53 ibid. 408, § 50. Whenever either of the officers above named shall resign and another person shall be elected or appointed in Books AND PAPERS. 33 his stead, the person so elected or appointed shall make such demand of the person so resigning. 1 R. 8. (8th ed.) 914, § 6. Retiring officer to deliver books, etc. It shall be the duty of every person so going out of office, whenever thereunto required, pursuant to the foregoing provisions, to deliver upon oath all the records, books and papers in his possession, or under his control, belonging to the office held by him; which oath may be administered by the officer to whom such delivery shall be made. 1 RB. 8S. (8th ed.) 914, part § 7; zdbid. 408, 8 50. Retiring officer to pay moneys on hand. It shall also be the duty of every Supervisor, Commissioner of High- ways, or of Common Schools, and of every Overseer of the Poor, so going out of office, at the same time to pay over to such successor the balance of moneys remaining in his hands, as ascertained by the Auditors of Town Accounts. 1 R. S. (8th ed.) 914, part of § 7. In case of death of officer demand to be made of executor, etc. Upon the death of any of the officers above enumer- ated, the successors or successor of such officer shall make such demand as above provided, of the executors or admin- istrators of such deceaséd officer, and it shall be the duty of such executors or administrators to deliver upon the like oath, all records, books and papers in their possession, or under their control, belonging to the office held by their testator or intestate. 1R. S. (8th ed.) 914, § 8. A public officer refusing to deliver books and papers on proper demand shall be deemed guilty of a misdemeanor. 1 R. S. (8th ed.) 408, § 50; Penal Code, § 57. § 53. On delivery of records, etc. While there is no statutory provision regulating the same, it is customary, when such demand is complied with in either of the cases above specified, for the officer or person complying with such demand to require, and the officer receiving the records, books, papers, moneys, etc., to give, a receipt therefor. Such receipt may 3 34 Toe LAW OF SUPERVISORS. become very important in case a controversy should sub- sequently arise as to whether delivery was made. The form of receipt in use in Erie County is as follows : I have this day received from Pennock Winspear, late Supervisor (or Town Clerk) of the town of Cheektowaga, in the County of Erie, N. Y., five hundred ten dollars and thirty cents ($510.30), being the balance of town moneys remaining in his hands as ascertained by the Auditors of Town Accounts ; Also vouchers numbered nine hundred one to nine hundred fifty-seven, both inclusive, in support of his charges. for disbursements, said numbers corresponding with the numbers in his cash account—which disburse- ments amount in the aggregate to three thousand ninety- seven dollars and forty cents ; Also two bound account books, one copy Banks & Bros.’ Seventh Edition Revised Statutes of New York and one copy Cothran’s Law of Supervisors. Dated Cheektowaga, March 17, 1888. JOSEPH DURINGER, Supervisor of Town of Cheektowaga. § 54. When delivery of records, etc., is refused. If any person so going out of office, or his executors or administrators, shall refuse or neglect, when thereunto lawfully required, to deliver such records, books or papers, he shall forfeit to the town for every such refusal or neg- lect, the sum of two hundred and fifty dollars. 1R. 8. (8th ed.) 914, part of § 9. Successor’s duty to compel delivery. And it shall also be the duty of the officer or officers entitled to demand such records, books and papers, to proceed to compel the deliv- ery thereof in the manner prescribed in the sixth title of the fifth chapter of this act, see 1 R. S. (8th ed.) 914, and to that end the fiftieth, fifty-first, fifty-second, Atty: third, fifty-fourth and fifty-fifth sections of that title shall be deemed to apply to the officers above enumerated, and their executors or administrators. 1R. 8. (8th ed ) 914, part of § 9: Books AND PAPERS. 35 Mandamus does not lie against out-going officer to com- pel him to account. After the term of office of a Super- visor has expired, and another person has succeeded to the office, a writ of mandamus will not lie to compel the for- mer to meet and account with the Justices and Town’ ° Clerk of the town, under 1 R. S. (8th ed.) 899, § 4; People v. Martin, 43 How. Pr. R. 52; S. C. 62 Barb. 570. Acton on bond is remedy for failure to account. In such case the remedy of the town is by action upon the recalcitrant Supervisor’s bond in the name of the town, under Laws 1866, chap. 534, to compel an account and for the recovery of any money or property of the town which he has not accounted for. People v. Martin, 43 How. Pr. R. 52;8. C. 62 Barb. 570. § 55. Proceedings to compel delivery of books, etc.—appli- cation If any person shall refuse or neglect to deliver over to his successor any books or papers as required by the preceding section [which is similar to the section above quoted], such successor may make complaint thereof to any Justice of the Supreme Court or to the County Judge of the county where the person so refusing. shall reside. 1 R. 8. (8th ed.) 408, part of § 51. a In such proceeding right to the office cannot be tried. It is undoubtedly true that in a proceeding under the above and succeeding sections, the right to an office, where such right is controverted, cannot be determined in such sense that such determination is in the nature of a final judgment. People v. Allen, 42 Barb. 203; S. C. 51 How. Pr. R. 97; Matter of Whiting, 2 Barb. 513; 18. C. Edm. Select Cases, 498; People v. Stevens, 5 Hill, 616; Nich- ols v. McLean, 101 N. Y. 536; North v. Cary, 4 Thomp. -& Cook, 357; Devlin’s Case, 5 Abb. Pr. R. 281; Cono- ver’s Case, 5 Abb. Pr. R. 73; 8. C. 24 Barb. 587; 14 How. P. 315; Matter of Bagley, 27 How. Pr. R. 151. Still it is the duty of the officer before whom such a pro- ceeding is instituted to examine the question of the right 36 Tue Law OF SUPERVISORS. to the office, of each of the respective claimants, so far as to enable him to properly determine the questions involved ; and, if he finds that the right of the claimant to the office is not free from any reasonable doubt, he should leave the parties to settle the question of right to the office in a direct proceeding for that purpose. People v. Allen, 42 Barb. 203; 8. C. 51 How. Pr. R. 97; Matter of Whiting, 2 Barb. 513; S. C. 1 Edm. Sel. Cas. 498 ; People v. Stevens, 5 Hill, 616; Nichols v. McLean, 101 N. Y. 536; North v. Cary, 4 T. & C. 357; Matter of Carpenter, 7 Barb. 30- 37: Devlin’s Case, 5 Abb. Pr. R. 282; Conover’s Case, 5 Abb. Pr. R. 73; 8. C. 24 Barb. 587; 14 How. Pr. R. 315 ; In re Bartlett, 14 How. Pr. R. 414; Jn re Baker, 11 How. Pr. R. 418; Matter of Bagley, 27 How. Pr. R. 151. And when, upon such investigation, it is found that the right to the office is free from any reasonable doubt, it becomes the duty of the Judge to compel delivery of the books and papers in the manner provided in the statute. People v. Stevens, 5 Hill, 616; People v. Allen, 42 Barb. 203; 8. C. 51 How. Pr. R. 97. The author, while County Judge of Erie County, had occasion to examine this precise question quite fully in the case of Matter of Duringer.* The opinion prepared in that case is given in a note. » * JUDGE COTHRAN’S DECISION. AT CHAMBERS, April 12th, 1877, County Court of Erie County. t In the matter of the Petition of Joseph Duringer for an order requiring Pennock Winspear to deliver over certain books and papers. This is a proceeding under the provisions of the Revised Statutes to compel the delivery of books and papers by public officers to their suc- cessors. 1R. 8. 124. The petition of Joseph Duringer, which was presented to me on March 20th, 1877, sets forth that at the annual town meeting held in March, 1876, Pennock Winspear was elected to the office of Supervisor of the town of Cheektowaga ; took possession of the books and papers pertaining to that office ; entered upon the discharge of the duties of the office, and con- tinued to discharge them until March 6, 1877. That on the day last aforesaid the annual town meeting was held in said town and that peti- tioner was duly elected to the office cf Supervisor at such election for the year commencing on the day of said election; that the whole number of votes cast at said election was 408, of which 218 were given for petitioner, Books AND PAPERS. 37 § 56. Form of petition by claimant. In the matter of the application of Joseph Duringer to compel delivery of books and papers. BY Pennock Winspear, his predecessor in office. To Hon. George W. Cothran, County Judge of Erie County : Your petitioner, Joseph Duringer, respectfully rep- and 190 for Pennock Winspear—a majority of 28 for petitioner, as was ascertained and determined by the Board of Town Inspectors and Can- vassers, and as the same was announced, declared and promulgated on the day of said election ; that on March 18th he executed, in due form, with proper sureties, his official bond, and filed the same with the Town Clerk of said town, and on the 16th of March he subscribed, took and filed his official oath with said Town Clerk. That on March 17th he demanded of said Winspear the books and papers pertaining to said office of Supervisor, and that he neglected and refused to deliver them. On the return of an order to show cause granted by me upon such petition, Winspear appeared and filed an answer to such petition, in which he states that he was elected Supervisor of the town of Cheek- towaga at the annual town meeting in 1876, and discharged the duties as such, and that at the annual town meeting held March 6th, 1877, he was, as he is informed and believes, elected Supervisor for said town for the year commencing March ‘7th, 1877, ending at the annual town meet- ing in 1878, and that he received at the election one hundred and ninety votes for the office of Supervisor, and that the petitioner, Joseph Dur- inger, received only twenty-six votes for said office, as was ascertained and determined by the Board of Town Inspectors and Canvassers, and as the same was announced, declared and promulgated on March 6th by said board. He denies that it was ascertained, declared and promulgated on said day, or at any other time, that the said Joseph Duringer had received two hundred and eighteen votes for said office of Supervisor, or a wajority of the whole number of votes cast for said office at said election, and denies that Duringer was elected at said election. Healso alleges that at said annual town meeting, the votes cast were publicly canvassed according to law, and after the same was completed a state- ment of the result was entered at length by the clerk of the meeting in the minutes of its proceedings kept by him as required by law, and such minutes were publicly read by said clerk to the meeting ; and it was ascertained and determined, announced, declared and promulgated that he (Winspear) had received a majority of the votes cast in said town at such election for the office of Supervisor of said town, and that on March 7th he filed an official oath and official bond with the Town Clerk. 388 THe LAw OF SUPERVISORS. resents that, on March 17th, 1876, at the Annual Town Meeting held in the town of Cheektowaga in the County It appears from the testimony adduced before me, that at a public meeting of citizens of the town of Cheektowaga, held prior to the annual town meeting on March 6th, 1877, Pennock Winspear was nominated as a candidate for election to the office of Supervisor of said town ; tickets for use on election day were printed and circulated amongst the electors with his name printed thereon for said office ; that 190 of such votes were cast for him ; that he had been elected the year previous, and had served as Supervisor during that year. It also appears that at a similar public meeting of citizens of said town, similarly held, Joseph Duringer was, in like manner, nominated for election to the office of Supervisor for said town ; that a written ticket was prepared, on which his name was correctly written, and that he applied to John H. Stock, a printer, to have a quantity of tickets printed, and that by a mistake made by the printer, his name was printed Joseph Durninger instead of Joseph Duringer; that of the tickets on which his name was thus spelled, 192 were cast at said election, and of tickets on which his name was correctly spelled there were cast 26; that he circulated the tickets on which his name was incorrectly spelled among the electors at said election. It also appears that at the annual election in said town, in the year 1874, said Duringer had been elected to the office of Supervisor of said town and served during the term of one year ; that he knew all the electors of the town ; that there were but two persons by the name of Duringer in the town of Cheektowaga, Joseph and his father, Paul, both of whom voted at the election in 1877, and that there was no person in the town by the name of Joseph Durninger. The Town Clerk testified, as a witness, that he acted as Clerk of the Town Board at the election and that he had written the name of Joseph Duringer on the poll list when he voted Joseph Deuringer. The poll list was produced and showed the name so spelled, and the Town Clerk testified that the name thus written was intended by him to represent the petitioner. The original canvass of the votes, as made by the Board of Canvassers, was produced before me, fron which it appeared that the— Whole number of votes cast for Supervisor was_.........----- 408 Votes cast for Pennock Winspear_......-....---.---.----- 190 «for Joseph Durninger-.--------.---.------.---- 192 «cs for Joseph Duringer.----.--.--.-------2-2.2--- 26 POGAM irs gece eee e bots Be Hoos eee sama ebteeseeaeecbeee 408 The Town Clerk testified that the result of the election was not pub- licly read or declared by himself, or by any member of the Board, but that the Board told him privately if Joseph Durninger did not qualify within the time required by law, to declare Pennock Winspear elected. There was also a book produced by the Town Clerk in which there Books AND PAPERS. 39 of Erie, Pennock Winspear was duly elected to the office of Supervisor of said town for the term of one year from occurs an entry reciting that at said annual ‘‘ town meeting the follow- ing persons were elected to fill the various offices of said town :” ‘Pennock Winspear received 190 votes and is elected Supervisor.” This record is not signed by any person. And there does not appear to be any record made by the Board or Town Clerk, and kept amongst the town records, properly authenticated, showing who were elected at said town meeting. Winspear’s counsel also produced, and I received under objections, a certificate from the County Clerk’s office, made and signed by the Town Clerk, certifying that Pennock Winspear was duly elected Supervisor It also appears that within the time prescribed by law, Joseph Dur- inger filed his oath of office, in due form, being the oath of office pre. scribed by article twelfth of the Constitution as amended in 1874, and also his official bond, and that within the like time Pennock Winspear filed a proper bond ; and also the oath of office as prescribed by the Constitution of 1846, his official oath of the previous year being in the same form. It was also shown that on March 27th he filed with the Town Clerk the oath of office prescribed by the Constitution as amended in 1874. It also appears that the books belonging to the office of Supervisor, the possession of which this proceeding was instituted to obtain, were in the possession of Winspear, and that he neglected and refused to de- liver them to Duringer when he demanded them. R. C. Titus for Duringer. L. L. Lewis for Winspear. GEORGE W. CoTHRAN, County Judge. The counsel for Winspear contends that the certificate of election made by the Town Clerk and filed in the County Clerk’s office, is in this proceeding conclusive evidence of the election of Winspear. He also contends that the officer before whom these proceedings are pend- ing has no power or jurisdiction to investigate the facts, and to deter- mine who was elected Supervisor of the town of Cheektowaga ; that that question can only be determined in a civil action, of the nature of a quo warranto. It, therefore, becomes essential to determine the extent of the officer’s power and jurisdiction. It is provided by statute that : “© Whenever the term of office of any Supervisor or Town Clerk shall expire and another person shall be elected or appointed to such office it shall be the duty of such succeeding Supervisor or Town Clerk imme- diately after he shall have entered on the duties of his office, to demand of his predecessor all the records, books and papers under his control belonging to such office, etc. 1R. 8. (6th ed.) 849, § 9. It shall be the duty of every person so going out of office whenever 40 Tur Law OF SUPERVISORS. that day and until his successor should be elected, chosen or appointed ; that he duly qualified as such officer and thereto required, pursuant to the foregoing provisions, to deliver upon oath all the records, books and papers in their possession or under his con- trol belonging to the office held by him, etc., etc. 1R. S. (6th ed.) 850, § 11. If any person so going out of office or his executors or administrators shall refuse or neglect, when thereunto lawfully required, to deliver such records, books or papers, he shall forfeit to the town for every such re- fusal or neglect, the sum of two hundred and fifty dollars; and it shall also be the duty of the officer or officers entitled to demand such records, books and papers to proceed to compel the delivery thereof in the manner prescribed in the Sixth Title of the Fifth Chapter of this act (1 R. 8. [6th ed.] 434), and to that end the fiftieth, fifty-first, fifty-second, fifty-third, fifty-fourth and fifty-fifth sections of the Title shall be deemed tv apply to the offices above enumerated,” etc. 1R. 8. (6th ed.) 850, § 13. It is provided in the fiftieth section referred to that whenever any per- son shall be removed from office, or the term for which he shall have: been elected or appointed shall expire, he shall on demand deliver over to his successor all the books and papers in his custody as such officer or in any way appertaining to his office. 1 R. S. (6th ed.) 424, § 75. And by the fifty-first section, that if any person shall refuse or neglect to deliver over to his successor any books or papers, as required in the preceding section, such successor may make complaint thereof to any Justice of the Supreme Court, or the County Judge of the county where the person so refusing shall reside; and if such officer be satisfied by the oath of the complainant, and such other testimony as shall be offered, that any such books or papers are withheld, he shall grant an order direct- ing the person so refusing to show cause before him, within some short. and reasonable time, why he should not be compelled to deliver the same. 1R. S. (6th ed.) 425, § 77. At the time so appointed, or at any other time to which the matter: may be adjourned, upon due proof being made of the service of the said order, such officer shall proceed to inquire into the circumstances. If the person charged with withholding such books or papers shall make affidavit before such officer that he has truly delivered over to his suc- cessor all such books and papers in his custody or appertaining to his of- fice, within his knowledge, all further proceedings before such officer: shall cease, and the person complained against shall be discharged. 1R. S. (6th ed.) 425, § 78 [52]. If the person complained against shall not make such oath, and it shall appear that any such books or papers are withheld, the officer before whom such proceeding shall be had shall by warrant commit the person so withholding, to the jail of the county, there to remain until he shall deliver such books and papers or be otherwise discharged according to law. 1R.S. (6th ed.) 425, § 79 [53]. recep the statutory provisions under which this proceeding was in- 8 ed. Books AND PAPERS. ‘ 41 took possession of said office, and the records, books and papers belonging to said office, and has thence continued The statute provides that the officer before whom such proceedings are pending *‘ shall proceed to inquire into the circumstances,” and if ‘it shall appear that any such books or papers are withheld,” he ‘‘ shall by warrant, commit the person so withholding, to the jail of the county, ete. It is true that these proceedings are of a very summary character. They were intended to aid an officer elected or appointed for a short term, to get possession of the books belonging to his office before the expiration of his official term, and from the nature of the case the question as to which of the parties is entitled to the office must, to a certain extent, be passed upon. It is incumbent on the moving party to establish his right to the office before he is entitled to call upon the respondent to deliver the books to him. The statute makes it his duty to proceed and obtain possession of the official books and papers. The respondent controverts the complainant’s right to the office; and bases his refusal to deliver the books upon the ground that complainant was not elected to the office. If the officer has no jurisdiction to inquire at all into and determine which of these parties is rightfully entitled to the office, a simple denial of the complainant’s right by the respondent would oust the officer of jurisdiction and terminate the proceedings. If that view of the case be the correct one, the statute would be substantially nugatory and the pro- ceedings under it ineffectual. Of course this proceeding is not intended asa trial of the right to the of- fice, in the sense that the decision is conclusive. I can only examine in- to the case and determine as to which of these parties makes out a clear prima facie title to the office. The authorities are abundant thatin a case, free from reasonable doubt in respect to the title to the office, it is my duty to proceed and protect the party elected to office against the un- lawful withholding, by his predecessor, of the books of the office. The People v. Allen, 42 Barb. 203, cases cited. In The People v. Cook, 14 Barb. 259, which was an action in the nature of a quo warranto, brought by the people on the relation of Benjamin Welch, jr., against James M. Cook, to test the right of the defendant to the office of Treasurer of this State, the evidence showed that there were votes cast for Benjamin C. Welch, Jr., and for Benjamin ‘Welch, for the office of State Treasurer, and although it was shown that the candidate’s father, whose name was Benjamin Welch, was an elector of this state at the time, still the court regarded the right of Benjamin Welch, Jr., to have those votes counted as having been cast. for him, so clear and free from doubt as to direct the jury so to find; which decision, after the most elaborate and exhaustive examination, by Judges Mason and Gray, was approved, and their decision was concurred in, by Judges Crippen and Shankland. Their decision was re- viewed in the Court of Appeals, and there affirmed. 8N. Y. 67. The evidence in that case was no stronger, in support of the right of Welch to have the disputed votes counted for him, than the evidence 42 THE Law OF SUPERVISORS. and now is in possession thereof (or wntel June 1st, 1886, when he died, in case proceeding is against executor, etc.). here is that Joseph Duringer is entitled to have the 192 votes cast for Joseph Durninger, counted for and allowed to him. There is quitea similarity in the evidence in the two cases. In both cases the printer who printed the tickets was called and testified that the mistake in the name of the candidate on the tickets was his, and not the candidate’s mistake. It is a well-settled legal proposition that a verdict will not be directed for the plaintiff where there is any controversy as to the facts in the case. (See cases cited in 5 Abb. Digest, 771.) The Court in the case of The People v. Cook, above cited, decided, in acase quite similar to this, that it was a proper case to direct a verdict. The Court could not have so held if there had been any reasonable doubt in the case as to the plaintiff's right to the direction. The decision in that case is an author- ity in point. It determines that there is no reasonable doubt but what Duringer is entitled to the votes cast for Durninger—that the mere mistake of the printer shall not deprive the candidate of the office to which he was legally elected. That Duringer was and is entitled to those votes is perfectly clear to my mind. In fact, the evidence, and which is entirely undisputed, does not leave the matter in doubt. Such being the case, he had a clear majority of all the votes cast at the election, having received 218 votes to Winspear 190, and was fairly elected. ; The next question raised by the respondent is that the certificate made by the Town Clerk and filed in the County Clerk’s office, in which the Town Clerk certifies that Pennock Winspear was duly elected Super- visor of the Town of Cheektowaga, is conclusive on me in this proceed- ing. For the Town Clerk’s authority to make such a certificate the counsel cites 3 R. S. (6th ed.) 831, § 23. By reference to the foot note it will be found that that section is section 2 of chapter 356, Laws 1829, and is no part of the Revised Statutes. The title to chapter 356 is ‘‘an act concerning the election of Justices of the Peace.” There is nothing in the chapter that has any reference to any other class of officers. It pro- videsthat Justices of the Peace shall be elected at the times and in the man- ner prescribed for the election of town officers. It is then provided in the second section that ‘‘ The clerk of every town meeting, at which an election for Justice of the Peace shall have been had, shall, within ten days thereafter, transmit to the Clerk of his county a certificate of the result of that election, under his hand, which shall be evidence of the facts therein certified.” There is a manifest propriety and necessity for such a certificate as applied to Justices of the Peace, because they are required to take their oath of office before the County Clerk, and this certificate is the evidence furnished to the County Clerk, from which he is to determine to whom to administer anoath. 1R. S. (6th ed.) 409, § 52. Furthermore, when the County Clerk is called upon to certify that Books AND PAPERS. 43 That your petitioner, at the annual town meeting held in said town on March 6, 1877, was duly elected to the person before whom the acknowledgment of a paper was taken—if taken by a Justice of the Peace—this certificate is the evidence which informs him whether or not the person taking it was a Justice of the Peace. There exists no such necessity as to any other town officer, Iam clearly of the opinion that this certificate, in so far as it relates to any other officer than Justice of Peace is wholly void—the Town Clerk -having no authority to make or file such a certificate. There was also a book called a Town Book produced before me in which there was an entry, not authenticated by either the Town Clerk or Board of Can vassers, or any body else, that ‘‘at the same town meet- ing [meaning the town meeting held March 6, 1877,] the following persons were elected to fill the various offices of the said town: ‘Pennock Winspear received 190 votes and is elected Supervisor.” The requirement of the statute is, ‘The canvass being completed, a statement of the result shall be entered at length by the clerk of the meeting, in the minutes of the proceedings to be kept by him as before required, which shall be publicly read by him to the meeting,” &c., &c. 1R.S. (6th ed.) 888, § 20. The Town Clerk was a witness before me and testified that there was no public announcement of the result of the election made to the meet- ing, by anybody, and that he did not read any statement of the result of the meeting. He produced the original minutes of the election showing that 190 votes were cast for Pennock Winspear, 192 for Joseph Durnin- gerand 26 for Joseph Duringer. He testified that the Board told him privately that if Joseph Durninger did not qualify within the time re- quired by law to declare Winspear elected. He then proceeded to enter in the Town Book the statement that ‘‘ Pennock Winspear received 190 votes and is elected Supervisor.” He certainly knew this was not true. It can not be claimed that Winspear was elected in any event. If the votes cast for Durninger are not to be counted for Duringer then there was no election of Supervisor in the town of Cheektowaga, as there is no pretense that there was any such manasDurninger. The People v. Clute, 50 N. Y. 451. The next question presented for consideration is whether Winspear is holding over from his election in the year 1876. The counsel for Dur- inger attacks this position and insists that Winspear has at no time been Supervisor of the town of Cheektowaga, de jure, and cannot hold over. It is provided by statute that every person chosen to the office of Su- pervisor, before he enters on the duties of his office and within ten days after he shall be notified of his election, shall take and subscribe the oath of office prescribed by the Constitution. 1. S. (6th ed.) 882, § 35. The Constitution requires ‘‘ members of the Legislature (and all offi- cers, executive and judicial, except such inferior officers as shall be by law exempted), shall, before they enter on the duties of their respective offices, take and subscribe the following oath or affirmation : ‘I do sol- 44 THe LAW OF SUPERVISORS. the office of Supervisor of said town for the year com- mencing on the day of such election ; that the whole number of votes cast at said election was 408, of which 218 were given for petitioner and 190 for Pennock Win- emnly swear (or affirm) that I willsupport the Constitution of the United States, and the Constitution of the State of New York, and that I will faithfully discharge the duties of the office of——according to the best of my ability.’ And all such officers who shall have been chosen at any election shall, before they enter on the duties of their respective offices, take and subscribe the oath or affirmation above prescribed, together with the following addition thereto, as part thereof: ‘And I do further solemnly swear (or affirm) that I have not directly or indirectly paid, or offered or promised to pay, contributed, or offered or promised to contrib- ute, any money or other valuable thing as a consideration or reward for the giving or withholding a vote at the election at which I was elect- cd to said office, and have not made any promise to influence the giving cr withholding any such vote.’ And no other oath, declaration or test shall be required as a qualification for any office of public trust.” The additional portion of this oath was enacted by the constitutional amendment adopted in 1874—Const., Art. XII. Since its adoption there has been no legislation exempting any elective officer from taking the whole oath. Within the ten days fixed by law Winspear took and filed an oath of office, consisting of the former part of the oath only. He did not within that time take, subscribe or file the oath provided by article XII. of the Constitution. But he did file such an oath at a subsequent period. The statute also provides that ‘‘every office shall become vacant on the happening of either of the following events before the expiration of the term of such office: 1. Thedeath of theincumbent. 2. His resigna- tion, 3. His removal from office. 4. His ceasing to be an inhabitant, &c. 5. His conviction of an infamous crime, &c. 6. His refusal or neglect to take the oath of office within the time required by law,” &e. Winspear having neglected to take and file the proper oath of office within the time required by law, is not a Supervisor de jure. Had not Duringer been elected, there would have been a vacancy in the office of Supervisor in the town of Cheektowaga ; and if it should be held that. Duringer was not elected, there is a vacancy. Winspear took the same kind of an oath in 1876 that he did in 1877, and was at no time a Super- visor de jure. There is no escape from the effect of these statutes. Officers must, within the proper time, take and file the required oath of office, or their office becomes vacant ; to be filled as in cases of vacancies otherwise occurring. The People v. McKinney, 52 N. Y. 374, I have thus examined all the questions raised before me ; and my con- clusion is, that Joseph Duringer was legally elected to the office of Su- pervisor of the town of Cheektowaga and is entitled to the books pertain- ing to that office. Books AND PAPERS. 45 spear,—a majority of 28 for petitioner, as was ascertained and determined by the Board of Town Inspectors and Can- vassers and as the same was announced, declared and promulgated on the day of said election (or was duly appointed to fill the vacancy in said office, occasioned by the death of said Pennock Winspear, as aforesaid, on the seventh day of June, 1876); that he has duly taken and subscribed the oath of office prescribed by the Constitu- tion and laws of this state, and has duly filed the same in the office of the Town Clerk of said town, on March 13, 1877, and has also furnished and filed with the proper officers the security which as such Supervisor he was required by law to give, which security has been duly approved, and that on said fifteenth day of March, 1877, he was duly qualified as Supervisor of said town according to law, and since that day has been and now is the Su- ‘pervisor of said town. That by virtue of said election (or appointment) and the other facts above set forth, your petitioner is the legal successor to said Pennock Winspear to said office, and as such was and is entitled to the possession of the records, books and papers now (or heretofore) in the pos- ‘session and under the control of said Pennock Winspear, belonging or appertaining to said office (én case of appointment to fill vacancy allege that the said records, books and papers, have come to, and are now in the pos- session of Bernard Fassett, executor or administrator of said Pennock Winspear); that such records, books and papers are described as follows (here insert description thereof) : That on March 17th, 1877, your petitioner duly demand- ed said récords, books and papers of said Pennock Win- spear (or of said Bernard Fassett, executor or adminis- trator of said Pennock Winspear, deceased) who then and there refused to deliver the same, or any of them, to him. (Jn case the demand was made of an executor or administrator, it should be alleged that he is a resident of the county, if the proceeding is before the County Judge.) Your petitioner, therefore, prays that your Honor will 46 THE LAW OF SUPERVISORS. issue an order requiring the said Pennock Winspear (or Bernard Fassett as such executor) to show cause before your Honor on a day to be named therein, why he, the said Pennock Winspear (or Bernard Fassett, executor, etc.) should not be compelled to deliver said records, books and papers to your petitioner, and why your petitioner should not have such further or other relief, or order, as may be proper. That no previous application for such order has been made to any Judge. Dated Cheektowaga, March 20, 1877. JOSEPH DURINGER. StTaTE oF New YorK, i a County of Erie. ; Joseph Duringer, being duly sworn, says he is the petitioner named in foregoing petition ; that he has read said petition and knows the contents thereof ; that the same is true of hisown knowledge except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes to be true. JOSEPH DURINGER., Subscribed and sworn to before me } this 20th day of March, 1877. F. R. Marcu, Notary Public. Other affidavits may be attached thereto. To this peti- tion may be attached affidavits of other persons as to any of the facts alleged, as the statute refers to ‘‘ such other testimony as shall be offered.” Still the above petition will, ordinarily, be sufficient. Nature of petition. The petition is in the nature of a complaint, and should contain a statement of the facts, and they should be so stated that if not denied a plain case would be made out in behalf of petitioner for the relief sought. It is not proper to allege mere conclu- sions of law, because in case of default the Judge could make no order thereon. Books AND PAPERS. 4% § 57. Order to show cause. And if such officer be satisfied by the oath of the com- plainant, and such other testimony as shall be offered, that any such books and papers are withheld, he shall grant an order, directing the person so refusing to show cause before him, within some short and reasonable time, why he should not be compelled to deliver the same. 1 R. S. (8th ed.) 408, part of § 51. The provision of the statute is imperative and manda- ' tory on the Judge to issue the order when the proper case is made. Form of order. [Entitled as in petition. ] On reading and filing the petition of Joseph Duringer, bearing date March 20, 1877, (and if any other affidavits accompany tt, specify them) and being satisfied by the same that the records, books and papers specified in said petition are unlawfully withheld from said petitioner by the said Pennock Winspear,on motion of R. C. Titus, Esq., attorney for said petitioner, it is hereby ordered that the said Pennock Winspear show cause before me at my chambers in the City and County Hall in the City of Buffalo, New York, on the 23d day of March, 1877, at ten o’clock in the forenoon of that day, why he should not be compelled to deliver the records, books and papers mentioned in said petition, to said Joseph Duringer, and why said Joseph Duringer should not have such further and other relief as may be proper. Let a copy of this order and of the papers upon which the same was granted be served upon said Pennock Winspear per- sonally, this day (or on or before, a day named). Dated March 20, 1877. GEO. W. COTHRAN, County Judge of Erie County. § 58. Proceedings thereon. At the time so appointed, or at any other time to which the matter may be adjourned, upon due proof be- ing made of the service of the order, such officer shall pro- 48 Tur LAW OF SUPERVISORS. ceed to inquire into the circumstances. If the person charged with withholding such books and papers, shall make affidavit before such officer, that he has truly de- livered over to his successor, all such books and papers in his custody, or appertaining to his office, within his knowledge, all further proceedings before such officer shall cease, and the person complained against shall be discharged. 1R. 8. (8th ed.) 409, § 52. Form of affidavit. State or New YORE, | ae County of Erie. {§°” Pennock Winspear being duly sworn, says that he is the identical person mentioned in a petition by Joseph Duringer and accompanying affidavits presented to Hon. George W. Cothran, County Judge of Erie County, on March 20, 1877, as withholding certain books and papers, and that he has truly delivered over to said Joseph Dur- inger, his successor, all such books and papers in his custody or appertaining to the office of Supervisor of the town of Cheektowaga in said county, within his knowl- edge. PENNOCK WINSPEAR. Subscribed and sworn to before me this 23d day of March, 1877. Gro. W. CoTHRAN, County Judge of Erie County. § 59. When affidavit of delivery is not made. If the person complained against shall not make such oath and it shall appear that any such books and papers are withheld, the officer before whom such proceedings shall be had, shall, by warrant, commit the person so withholding, fo the jail of the county, there to remain until he shall deliver such books and papers, or be other- wise discharged accordingto law. 1R. S. (8th ed.) 409, 8 53. § 60. Answer of defendant. On the return day of the order to show cause or with- in such time as may be prescribed by the judge, the per- Books AND PAPERS. 49 son complained against should file an answer to the pe- tition, because, should he fail to do so, or, if he should file an answer and should not deny the material allega- tions of fact in the petition, a prima facie case, in be- half of petitioner, will be deemed established. Matter of Baker, 11 How. Pr. R. 419. Form of answer of defendant. [Title as above § 56. ] And now comes the said Pennock Winspear, and for answer to the petition of Joseph Duringer filed herein, and served upon him, states, that he was elected Super- visor of the town of Cheektowaga at the annual town meeting in 1876 and discharged the duties as such, and that at the annual town meeting held March 6, 1877, he was, as he isinformed and believes, elected Supervisor for said town for the year commencing March 7, 1877, ending at the annual town meeting in 1878, and that he received at the election, so held in 1877, one hundred and ninety votes for the office of Supervisor, of said town. and that the petitioner, Joseph Duringer received only twenty-six votes for said office, as was ascertained and determined by the Board of Town Inspectors and Canvassers, and by the same was announced, declared and promulgated on March 6, 1877, by said board. He denies that it was ascertained, declared and pro- mulgated on said day, or at any other time, that said Joseph Duringer had received two hundred and eighteen votes for said office of Supervisor, or a majority of the whole number of votes cast for said office at said elec- tion ; and denies that Duringer was elected at said elec- tion. He also alleges that at said annual town meeting, the votes cast were publicly canvassed according to law, and, after the said canvass was completed a statement of the result was entered at length, by the clerk of the meeting, in the minutes of its proceedings kept by him as required by law, and such minutes were publicly read by said clerk to the meeting, and it was ascertained and de- 4 50 THe LAW OF SUPERVISORS. termined, announced, declared and promulgated that he, Pennock Winspear, had received a majority of the votes cast in said town at such election, for the office of Super- visor of said town, and that on March 7, 1877, be filed an oath of office and his: official bond with the Town Clerk. Wherefore he demands that this proceeding be dis- missed. Dated March 23, 1877. PENNOCK WINSPEAR. Lewis & GuRNEY, attorneys for defendant. [Verification same as that to petition. ] Of course the answer must depend upon the facts in such case. § 61. Upon the hearing witnesses may be examined, Substantially as upon the trial of issues of fact in courts, but it must be borne in mind that the jurisdic- tion of the Judge is limited, and the inquiry must be re- stricted accordingly. ¢ Action of Judge thereon. If, as the result of such in- vestigation, the Judge should be satisfied that the right of petitioner to the office and to the possession of the records, books and papers and that such records, books, and papers are unjustly withheld from him, an order should be granted requiring the immediate delivery of such rec- ords, books and papers, and in default thereof that de- fendant be committed to the jail of the county as pre- scribed by law. § 62. Form of order for delvery of books and for commit- ment. [Title same as in § 56. ] Whereas, on March 20, 1877, at my chambers, in the City of Buffalo, New York, a petition in the above enti- tled proceeding was presented to the undersigned, County Judge of Erie County, by Joseph Duringer, in substance that, at the annual town meeting held in the town of Cheektowaga, in the County of Erie, on March 6, 1877, Books AND PAPERS. 51 said petitioner was duly elected to the office of Supervisor of said town, for the ensuing year, having received two hundred twenty-eight votes out of the whole number of four hundred and eight votes cast, to one hundred ninety votes cast for Pennock Winspear, at said election ; that he had qualified himself to discharge the duties of said office by taking and filing the requisite oath of office and giving and filing the security required by law, and that Pennock Winspear, his predecessor in said office, wrongfully with- held the records, books and papers belonging or appertain- ing to said office, after demand for the possession thereof made by said petitioner ; and, Whereas, the undersigned being satisfied by the oath of said Joseph Duringer so presented, that the records, books and papers mentioned in said petition, dated March 20, 1877, were wrongfully and unlawfully withheld by said Pennock Winspear (or if by Bernard Fassett, executor, or administrator, then, that he is a resident of said county), I granted an order requiring the said Pennock Winspear to show cause before me on March 23, 1877, at ten o’clock in the forenoon, at my chambers in the City of Buffalo, why he should not be compelled to deliver said records, books and papers to said Joseph Duringer, and why said Joseph Duringer should not have such further and other relief as may be just ; and, Whereas, at the time and place so appointed the said Pennock Winspear appeared before me and filed his an- swer to said petition, controverting and denying under oath the material allegations of said petition, and the said Joseph Duringer also appeared and filed before me proof of due service of a copy of said petition and order to show cause upon said Pennock Winspear, as required by said order, and I thereupon proceeded to inquire into the facts and circumstances of said matter, which inquiry and in- vestigation was continued before me from day to day until this day, the matter having been duly and regularly adjourned, and the said Pennock Winspear not having made oath before me that he had truly delivered to said Joseph Duringer the said records, books and papers as 52 THe LAW OF SUPERVISORS. provided by the statute, and, it satisfactorily appearing to me that said Joseph Duringer was elected to the office of Supervisor of the town of Cheektowaga and is the -successor of said Pennock Winspear to said office of Su- pervisor, and that said records, books and papersare still wrongfully and unlawfully withheld, and that said Pen- nock Winspear still neglects and refuses to deliver up the same to said Joseph Duringer,* Now, after hearing Robert C. Titus, Esq., attorney for said Joseph Duringer, in support.of said petition, and Hon. L. L. Lewis, attorney for said Pennock Winspear, in opposition thereto, it is hereby Ordered, that the said Pennock Winspear forthwith deliver to said Joseph Duringer all the records, books and papers belonging or appertaining to the said office of Super- visor of the Town of Cheektowaga, viz.: (here insert de- scription thereof as stated in petition), which are in the possession or under the control of said Pennock Win- spear, or in default thereof, that a warrant issue to the Sheriff of the County of Erie, to commit said Pen- nock Winspear to the jail of the said County, there to remain until he shall deliver to said Joseph Duringer the said records, books and papers, viz.: (here repeat descrip- tion as above) or to be otherwise discharged according to Jaw. Andthesaid Joseph Duringer having required it, it is Ordered, that, in case such default is made by said Pennock Winspear in the delivery of said records, books and papers, as aforesaid, a search warrant issue to the Sheriff, or to any Constable of the county of Erie, com- manding him, in the day-time, to search such places as shall be designated in such warrant, viz.: (here insert a particular description of the different buildings, etc., to to be searched) for said records, book and papers, viz.: (repeat description of records, etc., as above) so withheld, and seize and bring them before the undersigned, for further action in the premises. Dated April 12th, 1877. GEO. W. COTHRAN, County Judge of Erie County. Books AND PAPERS. 53 § 63. A copy of this order should be served upon the recalcitrant officer, or person withholding the records, books and papers, and if he do not immediately deliver the same, as therein directed, a search warrant and com- mitment will issue. Form of commitment. The people of the State of New York to the Sheriff of the County of Erie : Whereas (copy last form down to*) and proceed : These presents are, therefore, to command you, the Sheriff of the County of Erie, and you are hereby com- manded to take the body of said Pennock Winspear, and commit him to the jail of Erie County, there to remain until he shall deliver the following described records, books and papers, viz.: (repeat description from above form) or be otherwise discharged according to law. In witness whereof, I have hereunto set my hand and seal, at my chambers, in the City of Buffalo, New York, this day of April, 1877. GEO. W. COTHRAN [L. s.], County Judge of Erie County. Recital of all the facts in commitment not necessary. It has been held to be not necessary that all the facts requisite to the jurisdiction of the officer should be dis- closed by the warrant. Matter of Baker, 11 How. P. R. 426; Seaman v. Duryea, 11 N. Y. 324. § 64. Search warrant. If a search warrant is demanded, when issued, it may be in the following form : The People of the State of New York To the Sheriff or any Constable of Erie County. Whereas (copy second above form § 62 to *), and said Joseph Duringer having required a search warrant to be issued as provided by law, you, the said Sheriff of Hrie County, and any Constable of said County, are hereby commanded to search, in the day-time, the (here insert 54 THE LAW OF SUPERVISORS. a description of the premises to be searched) for said records, books and papers, viz.: (here give description as stated in the above order), and seize and bring them before the undersigned. In witness whereof, I have hereunto set my hand and seal, at my chambers in the city of Buffalo, New York, this day of April, 1877. G, WC. {Le 8.4, County Judge of Erie County. In case the records, etc., are brought before the judge under the search warrant he may order them delivered to petitioner, and in case the defendant should be in jail he should be discharged, as the object of the proceeding is to obtain possession of the records, etc., pertaining to the office and not to punish the defendant. For his refusal the law imposes the punishment by way of a penalty. See § 54, supra. Or in case, after commitment, the officer committed shall cause the records, etc., to be delivered to his suc- cessor, he should be discharged. Bonps oF TOWN OFFICERS. 55 CHAPTER ITI. OF DUTIES PERFORMABLE BY SUPERVISOR INDIVIDUALLY—BONDS OF TOWN OFFICERS. § 65. To take bonds from town officers. § 66. From collector. § 67. Collector’s bond. § 68. Collector’s bond, filing of. § 69. Constable’s bond, its form. § 70. Constable’s bond, actions on. § 71. Failure of Collector or Constable to give bond, effect of. § 72. Justices of the Peace, bond of. § 73. Commissioners of Highways, bonds of. § 74, Excise Commissioners, bonds of. § 75. Overseers of the Poor, bonds of. § 76. Railroad Commissioner, bonds of. § 65. To take bonds from town officers. The statutes require various town officers to execute and file with the Supervisor of the town, official bonds conditioned for the faithful discharge of their respective duties. The requirement of thestatute, that these bonds be filed with the Supervisor, devolves the corresponding duty upon him, to see to the correctness in manner and form, as well as to the execution, of such bonds, and also, as to the sufficiency of the sureties therein. He may reject any bond not deemed by him sufficient, either in matters of form or execution, as well as for insuffi- ciency of the sureties. He should be very vigilant in taking such bonds, so that the town may not sustain loss by means of his inattention to duty in that regard. When he approves a bond he should endorse his approv- al upon it, and file it as provided by law. The officers enumerated in the succeeding sections are required to give official bonds to the Supervisor. § 66. Town Collector. Every person chosen or appointed to the office of Col- 56 THe Law OF SUPERVISORS. lector, before he enters on the duties of his office, and within eight days after he receives notice of the amount of the taxes to be collected by him, shall exe- cute to the Supervisor of the town, and lodge with him, a bond, with one or more sureties, to be approved of by such Supervisor, in double the amount of such taxes, conditioned for the faithful execution of his duties as such Collector. 1 R.S. (8th ed.) 890, § 19. § 67. Collector’s bond. Know ali men by these presents, that we, Benjamin Felton, as principal, and Garwood L. Judd and Edwin Evans, as sureties, all of the town of Wheatfield, in the County of Niagara, and State of New York, are held and firmly bound unto Lewis 8. Payne, as Supervisor of said town of Wheatfield, in the penal sum of dollars, to be paid to the said Lewis 8. Payne, as such Supervisor, or to his successor in office, or assigns, for which payment well and truly to be made, we bind ourselves, our heirs, executors and adminis- trators, jointly and severally, firmly by these presents. . Sealed with our seals and dated this day of March, A. D., 1888. Whereas, the above bounden, Benjamin Felton, was on the day of March, A. D. 1888, duly elected (or appointed) Collector of the Town of Wheatfield, in the County of Niagara: Now, therefore, the condition of this obligation is such that if the said Benjamin Felton shall well and faithfully execute his duties as such Collector, pay over all moneys received by him, and account in the manner and within the time provided by law, for all taxes upon the assessment roll of said town, delivered to him for the ensuing year, then this obligation shall be void ; other- wise, to be and remain in full force and effect. BENJAMIN FELTON [. s.], G. L. JUDD [t. s.], E. EVANS [L. s.]. Bonps oF TOWN OFFICERS. 57 STaTE or NEw York, County of Niagara. } On this day of December, A. D. 1888, before me, the undersigned, personally appeared Benjamin Fel- ton, Garwood L. Judd and Edwin Evans, to me person- ally known to be the same persons described in, and who executed the foregoing instrument, and severally ac- knowledged that they executed the same. O. L. M., Justice of the Peace. StaTE oF NEw York, \ County of Niagara. ( 5° Garwood L. Judd and Edwin Evans, the sureties men- tioned in the foregoing instrument, being severally duly sworn, each for himself says, that he is a resident and a freeholder (or householder) within this state, and worth dollars (the amount mentioned in the penalty of the bond when there are two sureties, and double the amount of the bond when there is only one surety,) over and above all of his debts and liabilities which he owes or has incurred, and exclusive of property exempt by law from levy and sale under execution. G. L. JUDD, E. EVANS. Subscribed and sworn to before me { this day of December, 1888. O. L. M., Justice of the Peace. County or N1aGaRA, | Town of Wheatfield. { ** I hereby approve of the foregoing (or within) bond as to its form and manner of execution and of the suf- ficiency of the surety (or sureties, as the case may be) therein. Dated Wheatfield, December 1888. LEWIS 8. PAYNE, Supervisor of Town of Wheatfield. Collector must take and file.oath of office. A Town Collector-elect, in order to qualify for the office, is 58 THe LAW OF SUPERVISORS. required by the Constitution, art. XIT., to take and sub- scribe the oath of office there prescribed ; and until he has thus qualified the incumbent of the office is en- titled to hold over. 1 RB. S. (8th ed.) 992, § 30; People v. McKinney, 52 N. Y. 374. Failure to take oath or to file bond a refusal to serve. If any person chosen or appointed to the office of Col- lector or Constable shall not give such security and take such oath of office as is above required, within the time limited for that purpose, such neglect shall be deemed a refusal to serve. 1 R. 8. (8th ed.) 891, § 24. Oath of office, when to be taken. As no time is prescribed within which such oath of office is re- quired to be taken it is sufficient if taken at any time before the office is forfeited by reason of the neglect of the person elected to execute the required bond, and‘entitles him to the office. People v. McKin- ney, 52.N. Y. 374. Collector entitled to actual notice to jfile bond. The Collector-elect is not bound to take notice of the proceedings of the Board of Supervisors in fixing the amount of the tax but he is entitled to actual notice either from the Board of Supervisors or from the Super- visor of his town of the amount of the tax before he can be put in default for not giving the bond. People v. Mc- Kinney, 52 N. Y. 374. § 68. Filing such bond. The Supervisor shall, within six days thereafter, file such bond with his approbation thereon, in the office of the County Clerk, who shall make anentry thereof in a book to be provided for the purpose, etc. 1 R. 8. (8th ed.) 890, part § 20. Liability of sureties on such bond. In an action on such bond it is not a defense in behalf of the sure. ties that the moneys collected were stolen without Bonps oF TOWN OFFICERS. 59 any fault, want of care or omission of duty on the part of the Collector. Muzzy v. Shattuck, 1 Denio, 233; 8.C. affirmed 7 Hill, 584, note. Noris it adefense, by the sureties, that, if a warrant had been issued against the Collector within the time prescribed by law, the amount. due might have been collected of him. Looney v. Hughes, 26 N. Y. 514. See also § 49 as toliabilities of sureties in official bonds. § 69. Constable’s bond. Every person chosen or appointed to the office of Con- stable, before he enters on the duties of his office, and within eight days after he shall be notified of his elec- tion or appointment, shall take and subscribe the oath of office provided by the Constitution ; and shall execute in the presence of the Supervisor or Town Clerk of the town, with at least two sufficient sureties, to be approved of by such Supervisor or Town Clerk, an instrument in writing by which such Constable and his sureties shall jointly and severally agree to pay to each and every per- son who may be entitled thereto, all such sums of money as the said Constable may become liable to pay on account of any execution which shall be delivered to him for collection ; and shall also jointly and severally agree and become liable to pay each and every such person for any damages which he may sustain from, or by, any act or thing done by said Constable, by virtue of his office of Constable. Every Constable so chosen or ap- pointed shall in good faith be an actual resident of the town or ward in which he shall be chosen or appointed. 1 BR. 8. (8th ed.) 890, § 21, as amended by Laws 1872, chap. 788. Approval of bond to be endorsed thereon. The Super- visor or Town Clerk shall endorse on such instrument his approbation of the sureties therein named, and shall then cause the same to be filed in the office of the Town Clerk ; and a copy of such instrument certified by the Town Clerk shall be presumptive evidence in all 60 THe LAW OF SUPERVISORS. courts, of the execution thereof by such Constable and his sureties. 1 R. 8S. (8th ed.) 891, § 22. Form of Constable’ s bond. Whereas, George K. Vantine was on the day of March, A. D. 1888, elected (or appointed) a Constable of the Town of Alden, in the County of Erie, and State of New York, now, therefore, the said George K. Vantine,. as principal, and G. D., M. O. (and R. S.), as sureties, do hereby jointly and severally agree to pay to each and every person who may be entitled thereto, all such sums ‘of money as the said Constable may become liable to pay on account of any execution which shall be delivered to him for collection, and we do also hereby jointly and severally agree and become liable to pay each and every such person for any damages which he may sustain from, or by, any act or thing done by such Constable, by virtue of his office of Constable. Dated Alden, March A. D. 1888. G. K. V. [1. s.], G. D. [L. 8.], M. O. [L. 3.]. Acknowledgment and justification of sureties as in Collector’s bond should be added. See § 67. The following form of approval to be endorsed upon the bond will be sufficient : County oF ErIz, Town of Alden. t Pee I hereby approve of the above (or within) bond as to its form and manner of execution, and of the sufficiency of the sureties therein ; and I also hereby certify that the same was executed in my presence by the said G. K. V., G. D. and M. O., the Constable and sureties therein mentioned. Dated March 1888. R. J., Supervisor of Alden. P. W,, Town Clerk of Alden. Bonps oF TOWN OFFICERS. 61 It will be observed that the statute requires that this bond shall be executed in the presence of the Supervisor of the town, or of the Town Clerk, within eight days after notice of his election or appointment. It also requires it to be filed in the office of the Town Clerk after it is executed and approved. Bond, to whom to run. The present statute does not prescribe to whom this bond istorun. Under former stat- utes it was held proper to make it to the people of the State of New York. Warner v. Racey, 20 John. 74; Skellinger v. Yendes, 12 Wend. 307; People v. Holmes, 2 Wend. 281; same v. same, 5 Wend. 191; Lawton v. Erwin, § Wend. 235, Undoubtedly, a bond made to the people would be good under the present statute. bid. It should not be made payable to the people of the county. Dutton v. Kelsey, 2 Wend. 615; Warner v. Racey, 20 John. 74. Proper form of bond. While the security may be in the form of a penal bond to the people, it seems to be preferable that it should be in the form of a simple agreement, in the language of the statute, to pay, with- out any penalty. People v. Holmes, 5 Wend. 191; Fel- lows v. Gilman, 4 Wend. 414. Tt need not be under seal. Neither the Constable nor the sureties can object that the instrument is not under seal. Skellinger v. Yendes, 12 Wend. 306. Nor that it was not approved by the Supervisor or Town Clerk. bid. The office of Constable seems to have been abolished in the City and County of New York, and provision is made for the appointment of thirty-seven Marshals who perform the duties of Constables. Such Marshals are required to give bond, ete. Laws of 1882, chap, 410, § 1699, et seq. § 70. Actions on Constable’s bond. All actions against a Constable or his sureties upon 62 THe Law oF SUPERVISORS. any such instrument, shall be prosecuted within two years after the expiration of the year for which the Con- stable named therein shall have been elected. 1 R. 8. (8th ed.) 891, § 23. See Code Civil Procedure, § 382. § 71. Collector’s or Constable’s refusal to serve. If any person chosen or appointed to the office of Col- lector or Constable shall not give such security and take such oath as is above required, within the time limited for that purpose, such neglect shall be deemed a refusal to serve. 1R. S. (8th. ed.) 891, § 24. And a refusal to serve creates a vacancy to be filled as prescribed by law. § 72. Bonds by Justices of the Peace. Every Justice of the Peace, elected or appointed in any of the towns or cities of this state, shall, before he enters upon the duties of his office, execute an instru- ment in writing, with two sureties to be approved by the Supervisor of the town, or the Town Clerk thereof where the said Justice of the Peace is also Super- visor of said town, or the Common Council of the city in which such Justice shall reside, conditioned that he will pay over on demand to the officer, or person or persons entitled to the same, all moneys received by him by virtue of his office; and previous to entering upon the discharge of his official duties, shall file the said instrament in the office of the Clerk of the city or town in which he shall reside. Every such Justice of the Peace shall, at or before the time of pre- senting himself to be sworn into office, file with the County Clerk a certificate of the Clerk of the city or town in which such Justice of the Peace resides, that he has filed the bond required by this section ; and no Justice of the Peace shall be sworn into office until he shall have filed such certificate as aforesaid. Laws 1878, chap. 107, § 1, as amended by Laws 1878, chap. 367, and by Laws 1881, chap. 123; 1 R. 8. (8th ed.) 893. This act shall not apply to the City and County of New York or those cities whose charters require these Bonps or Town. OFFICERS.. 63 . Officers to give such bonds. Laws 1878, Chap. 107, § 3; 1 RB. 8. (8th ed.) 893. Form of bond. Know all men by these presents, that I, Abram Thorn, of the Town of Hamburg, NewYork, having been duly elected (or appointed) to the office of Justice of the Peace of the Town of Hamburg, in the County of Erie, and State of New York, as principal, and Eugene A. Kelley and Michael Schwert, of the same town, as sure- ties, do hereby jointly and severally undertake and agree that said Abram Thorn will pay over on demand to the officer, or person or persons entitled to the same, all moneys received by him by virtue of his said office of Justice of the Peace of said town. Witness our hands and seals this day of March, 1888, ABRAM THORN [L. s.], E. A. KELLEY ([L. s.], M. SCHWERT [L. s. ]. Acknowledgment and justification of sureties the same as in the case of Collector. Supra, § 67. ERIE County, as Town of Hamburg. : I do hereby approve of the foregoing instrument as to its form and manner of execution, and also of the suf- ficiency of the sureties therein. J. WAYNE WHITE, Supervisor of the Town of Hamburg. In case the Supervisor is also a Justice of the Peace, the approval must be by the Town Clerk. Filing such bond. By above section the bond is required to be filed by the Justice “before entering upon the duties of his office.” It is provided that when- ever any officer is required by law to execute any official bond, he shall cause the same to be filed in the proper office within the time herein prescribed for filing his oath of office, unless otherwise provided by law. 1R. S. (8th ed.) 400, § 26, 64 Toe LAW oF SUPERVISORS. Whenever a different time shall not be prescribed by law, such oath shall be taken and subscribed, and depos- ited in the proper office, within fifteen days after the of- ficer shall be notified of his election or appointment, or within fifteen days after the commencement of his term of office. 1R. S. (8th ed.) 399, § 21. By article XII. of the Constitution it is provided that the oath of office shall be taken before entering upon the duties of the office, thus modifying former statutes. The oath of office of Justices of the Peace shall be taken before the Clerk of the County for which they may have been elected or appointed, at any time after election or appointment, and before the fifteenth day of January next succeeding. Laws of 1832, chap. 109, § 1; 18.8. (8th ed.) 892. The bond must be filed with the Town Clerk before the oath of office can be administered to the Justice of the Peace, as he is required to produce to the County Clerk a certificate of filing such bond, before the Clerk can administer the oath of office, as shown above. $73. Bond of Commissioners of Highways. Every Commissioner of Highways hereafter to be elect- ed or appointed, shall, before entering upon his duties, and within ten days after notice of his election or appoint- ment, execute to the Supervisor of his town, a bond with two sureties, to be approved by the Supervisor, by an endorsement thereon, and filed with him, in the penal sum of one thousand dollars, conditioned that he will faithfully discharge his duties as such Commissioner, and within ten days after the expiration of his term of office pay over to his successor what money may be remaining in his hands as such Commissioner, and render to such successor a true account of all moneys received and paid out by him, as such Commissioner. Laws 1845, chap. 180, §3. 1R.S. (8th ed.) 916, § 3. form of Commissioner’ s bond. Know all men by these presents, that we, W. N. as principal, and E. L. and O. R. as sureties, of the Town of Bonps or Town OFFICERS. 65 Marilla, in the County of Erie, and State of New York, are held and firmly bound unto J. K., Supervisor of said town, in the penalsum of one thousand dollars, to be paid to the said Supervisor or to his successor in office; for which payment, well and truly to be made, we bind our- selves, our heirs, executors and administrators, jointly and severally, by these presents. Sealed with our seals and dated the 13th day of March, A. D. 1888. Whereas, the above named bounden W. N., was on the seventh day of March, A. D. 1888, duly elected (or ap- pointed, as the case may be) Commissioner of High- ways of the Town of Marilla, in the County of Erie. Now, therefore, the condition of this bond is such, that if the said W.N. shall faithfully discharge his duties as such Commissioner, and shall, within ten days after the expiration of his term of office, pay over to his successor all moneys remaining in his hands as such Commissioner, and render to such successor a true account of all moneys received and paid out by him as such Commissioner, without fraud or delay, then this obliga- tion to be void ; otherwise to be of full force and effect. Witness our hands and seals the day and year first above written. W,N. [1. s.], E. L. [1. s.], O. R. [L. 8.]. Acknowledgment. State or New York, ) ,, County of Erie. j°" On the 13th day of March, A. D. 1888, personally appeared before me W. N., E. L. and O. R., to me known to be the persons described in and who executed the foregoing instrument, and severally acknowledged that they executed the same. A. R., Justice of the Peace. 66 THe LAW OF SUPERVISORS. Justification. State or New York, | ., County of Erie. {~"* E. L. and O. R., the sureties named in the foregoing instrument, being severally duly sworn, each for him- self says, that he is a resident and freeholder (or house- holder) within this state, and is worth one thousand dollars over and above all his debts and liabilities, and exclusive of property exempt from execution. E. L., O. R. Subscribed and sworn to before me } this 13th day of March, 1888. { A. R., Justice of the Peace. Approval. I hereby approve of the within bond and of the suffi- ciency of the sureties therein named. Dated Marilla, March 15, i888. P.G., Supervisor of the Town of Marilla. Bond, when and with whom to be filed. Such bond must be filed with the Supervisor within ten days after notice of his election or appointment as Commissioner. Bond sued in name of Supervisor. For a breach of the condition of the bond the action must be brought in the name of the Supervisor to whom it was given, or in the name of his successor in office. Fuller v. Fullerton, 14 Barb. 59; Jansen v. Ostrander, 1 Cow. 670. Omission to execute and file offictal bond will not ren- der his official acts void so as to make the Commissioner a trespasser. Foot v. Stiles, 57 N. Y. 399. As to the extent of liability of sureties in official bonds see § 49, supra. § 74. Bonds of Excise Commissioners. The said Commissioners shall be voted for upon a sep- arate ballot, which shall be deposited in a separate box, Bonps oF TOWN OFFICERS. 67 marked ‘‘excise,” and before entering upon the duties of their offices, shall take and subscribe the constitutional oath of office, and file the same with the Town Clerk, and shall execute a bond to the Supervisor thereof, to be approved by him, in double the amount of the excise moneys of the preceding year, conditioned for paying over to him, or his immediate successor in office, within thirty days after the receipt thereof, all moneys received by them as such Excise Commissioners. Where no mon- eys have been received for licenses during the preced- ing year, said bonds shall be executed in the penal sum of one thousand dollars, etc. Laws 1874, chap. 444, § 2, as amended by Laws 1886, chap. 459, § 1. The County of Richmond is hereby exempted from the provisions of this act. Laws 1886, chap. 459, § 2. Form of such bond. Know all men by these presents, that we, A. B., C. D. and E. F. as principals, and G. H. and L. M. as sureties, all of the town of Sardinia, Erie County, New York, are held and firmly bound unto Albert Hale, Supervisor of the town of Sardinia, in the County of Erie and State of New York in the penal sum of (insert the amount, which shall be double the amount of the excise moneys received during the preceding year, but in case no such moneys were received during the preceding year, then the penalty shall be $1,000), for which payment well and truly to be made, we bind ourselves, our heirs, executors and admin- istrators, jointly and severally, firmly by these presents. Sealed with our seals and dated this twenty-first day of March, A. D. 1888. Whereas, the above named bounden A. B., C. D. and E. F. were on the seventh day of March, A. D. 1888, du- ly elected Commissioners of Excise, in and for the Town of Sardinia, in the County of Erie. Now, therefore, the condition of this obligation is such that if the said A. B., C. D. and E. F. shall and will well and truly pay over to said Albert Hale, Supervisor, or to his immediate successor in office, within thirty days 68 Tue Law OF SUPERVISORS. after the receipt thereof, all moneys received by them as such Commissioners of Excise, without fraud or delay, then this obligation to be void, otherwise to be of full force and effect. Witness our hands and seals the day and year first above written. [Signatures and Seals. ] Where but one Commissioner is elected annually, the bond can be modified accordingly. Acknowledgment and justification of sureties the same as in case of Commissioners of Highways. See § 73. Approval. I hereby approve of the within bond and of the suffi- ciency of the sureties therein. ALBERT HALE, Supervisor of Town of Sardinia. This bond may be retained by the Supervisor, or it may be filed with the Town Clerk. § 75. Bond of Overseer of the Poor. Every person hereafter elected or appointed to the office of Overseer of the Poor in the several towns in this state, within ten days after being notified of his election or appointment shall execute to the Supervisor of the town, a bond, with one or more sureties, to be approved by such Supervisor, conditioned that he will faithfully discharge the duties of his office, and will pay according to law all moneys which shall come into his hands as such Overseer. Laws 1855, chap. 269, §1; 3 R.S. (8th ed.) 2128. When and where to be filed. Such bond, with the ap- proval of the Supervisor endorsed thereon, shall, within five days thereafter, be filed in the office of the Town Clerk of such town. Laws 1855, chap. 269, § 2; 7d. Form of such bond. Know all men by these presents, that we, William Scott as principal, and M. A. and R. C. as sureties, all of the Town of Boston, County of Erie and State of New York, are held and firmly bound unto Martin Keller, as Super- Bonps oF TOWN OFFICERS. 69 visor of the said Town of Boston, in the penal sum of dollars, for which payment well and truly to be made to the said Martin Keller, as Supervisor, as afore- said, or to his successor in office, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals and dated this fourteenth day of March, A. D. 1888. Whereas, the above named bounden William Scott was on the seventh day March, A. D. 1888, duly elected to the office of Overseer of the Poor of the Town of Boston, in the County of Erie and State of New York : Now, therefore, the condition of this obligation is such that if the above bounden William Scott shall faithfully discharge the duties of his said office of Overseer of the Poor, and shall pay according to law all moneys which shall come into his hands as such Overseer of the Poor, without fraud or delay, then this obligation shall be void, otherwise to remain in full force and effect. Witness our hands and seals the day and year first above written. W.S. [L. 8.], M. A. ([L. 8.], R. C. [i s.]. Acknowledgment, justification of suréties,. and ap- proval by Supervisor as in foregoing cases. Bond, when to be given and filed. It will be noted that the Overseer is required to execute such bond and _ pro- cure the approval of the Supervisor within ten days after notice of his election or appointment, and that within five days after procuring such approval, it must pe filed with the Town Clerk. § 76. Bonds by Railroad Commissioners. It is provided by section three of chapter 907, Laws of 1869, as amended by Laws 1873, chapter 720, that Railroad Commissioners, thereafter to be appointed, shall, in all cases, within ten days after entering upon the 70 Tue Law OF SUPERVISORS. duties of their office, and before receiving any funds belong- ing to the town, in said section three referred to, make and deliver to the Clerk thereof a bond in such penalty and with such sureties as the Board of Auditors for such town shall prescribe, conditioned for the faithful discharge of their official duties, and that they will well and truly keep and pay overand account for all moneys belonging to such town and coming into their hands as such com- missioners, and in all cases where such Commissioners have entered upon the duties of their offices without executing such bond, it shall be their duty to make and file the same within twenty days after the passage of this act, and within ten days after notice thereof from the Supervising Officer of said municipal corporation. Such office of Commissioner shall become vacant on fail- ing or refusal to file the bond as herein required. Form of such bonds. Know all men by these presents, that we, A. B., C. D. and E. F. as principals, and G. H. and I. K. as sureties, all of the Town of North Collins, in the County of Erie and State of New York, are held and firmly bound unto the people of the State of New York (or to John Kirby, Town Clerk of said town) in the sum of dollars (amount to be fixed by the Board of Town Auditors) for which payment well and truly to be made we bind our- selves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals and dated this day of A. D. 1888." Whereas, the said A. B., C. D. and E. F., were on the day of A. D. 1888, duly appointed Railroad Commissioners for said Town of North Collins, by Hon. William W. Hammond, County J udge of Erie County, under and by virtue of chapter 7 20, Laws of 1873. Now, therefore, the condition of this obligation is such, that if the said A. B., C. D. and E. F. shall faithfully dis- charge the duties of said office of Railroad Commissioners and will well and truly keep and pay over and account Bonps oF TOWN OFFICERS. 71 for all moneys belonging to said Town of North Collins and coming into their hands as such Commissioners, without fraud or delay, then this obligation to be void, otherwise to remain in full force and effect. Witness our hands and seals the day and year first above written. [Signatures and seals. ] Acknowledgment, justification of sureties, same as in foregoing bonds. | From the reading of the section it would seem that the bond should be approved by the Board of Town Audit- ors. 72 Tue LAW OF SUPERVISORS. CHAPTER IV. OF DUTIES PERFORMABLE BY SUPERVISOR INDIVIDUALLY—RECEIPT AND DISBURSEMENT OF PUBLIC MONEYS, ETC. § 77, School and town moneys from predecessor. § 78. Must keep accounts. § 79. To receive and disburse town moneys. § 80. Accounts of town moneys—forms of. § 81. To render final account. § 82. His duty as to school moneys. § 83. When he must account. § 84. His accounts—how and when audited. § 85. Audit of his accounts. § 86. Of gospel and school lots. § 87. Of gospel and school lots when towns are divided. § 88. Of gospel and school lots sharesto whom paid. § 89. Supervisor liable for loss of such funds. § 90. Powers under Laws 1829, chap. 287. § 77. School and town moneys. So soon as the bond to the County Treasurer, by the third article of the third title of this act required, shall have been given by the Supervisor, and approved by the Treasurer, it his duty todeliver to his prede- cessor the Treasurer’s certificate of these facts, to procure from the Town Clerk a copy of his prede- cessor’s account, and to demand and receive from him any and all school moneys remaining in his hands. Laws 1864, chap. 555, title IV.,§ 6,9 7; 2R.S8. (8th ed.) 1283. For the bond referred to in this paragraph see above, § 38, Duty of retiring officer. The retiring Supervisor, upon receiving such a certificate from his successor, and not before. shall pay to him all school moneys remaining in his hands, and shall forthwith file the certificate in the Town Clerk’s office. Ibid., € 8. Duties AS TO PUBLIC Moneys. 13 Of course, if the retiring Supervisor is not obliged to pay over moneys remaining in his hands until such certif- icate is presented to him, his successor is not previously entitled to demand or receive such moneys. When retiring officer refuses to pay over. By virtue of paragraph nine of the section last above quoted, the successor to a Supervisor is authorized, in case his prede- cessor makes default in paying over such moneys, to sue for the same in the name of his office, as well as to sue for penalties and forfeitures imposed for violations of that act, Laws 1864, chap. 555, and, after deducting his costs and expenses, to report the balances to the School Commissioner. §'78. Supervisor is required to keep accounts. Amongst the duties imposed upon a Supervisor, is that of keeping just and true accounts of all moneys received and disbursed by him. There are several provisions of the statute relating to his keeping accounts to which we will now call attention. § 79. To receive and disburse town moneys. The Supervisor of each town shall receive and pay over all moneys raised for defraying town charges, except those raised for the support of highways and bridges, of common schools, and of the poor, where poor moneys shall be raised. 1R. 5S. (8th ed.) 898, § 1. Highway and poor funds. It is the duty of the Board of Supervisors to require moneys raised by tax for relief of the poor of towns and for highway purposes, to be paid over direct to the Overseers of the Poor, Laws 1845, chap. 334, § 7; 3 R. S. (8th ed.) 2125, § 7, and to the Commissioner of Highways, respectively. 2 R. 8. (8th ed.) 1369, § 50, as amended by Laws 1877, chap. 197. A Supervisor has no authority to receive such moneys, even in transit, 1 R. 8. (8th ed.) 898, § 1, and if he should receive the same, the sureties in his official bond are not liable therefor. People v. Pennock, 60 N. Y. 421. 4 Tue Law OF SUPERVISORS. $80. Accounts of town moneys. . He must keep a just and true account of the receipt and expenditure of all moneys which shall come into his hands by virtue of his office, in a book to be provided for that purpose, at the expense of the town, and to be delivered to his successor in‘office. 1R. 8. (8th ed.) 898, § 3. Form for such accounts. The form here given has long been in general use in many towns in the western part of the state and is quite correct. CHARLES N. Brayton, Supervisor, In account with the Town of Wales. 1—Poor Funp. 1887. Dr. Cr. March 16, To amount received from J. W. M., late Supervisor . . - . + . $640 10 May 3, To cash received from R. Ti, Gomuaiee sioner of Excise . . . . . . . 82000 May 31, To cash received from R. L., Commis- sioner of Excise .... . -» 60 00 1888, Feb’y 25, To cash transferred from dog fund 30 50 $1,050 60 Contra. 1887. April2, By cash paid T. W., Overseer of the Poor, Voucher No. 1 oy 38 $60 00 May 7, By cash paid W. 8., Overseer of sts Poor, Voucher No. 2 Be 40 00 June4, By cash paid C. N., Overseer of “the Poor, Voucher No; Bsns 80 00 July 1, By cash paid W. S., Overseer of the Poor, VoucherNo.4 . . , 30 00 Sept. 28, By cash paid C. N., Overseer of tha Poor, Voucher No. re 90 00 Oct. 6, By cash paid T. W., Overseer of the Poor, Voucher No. Ge ge. aatig) So gh Ye 50 00 1888. Jan’y 2, By cash paid T. W., Overseer of the Poor, Voucher No.7 , . . . . 100 00 March 2, By balance on hand 600 60 $1,050 60 $1,050 60 March 2, To balance on hand $600 60 1887, March 28, 1888, Feb’y 23. March 1, 1887. March 16, 1888. Feb’y 1, 1887. Oct. 1, 6é 13, Nov. 4, “cc 1%; 1888. Feb’y 25, 1888. March 1, DvutTiEs AS TO PuBLIC MoneEvs. 2—LocaL ScHOOL FuND. Toamount of such fund received from J.W.M., late Supervisor To interest thereon, one year, 6 per cent. Contra. . By paid School District No. 1, Voucher No. 7 DarBr oe vien'da™ at Se? bow bie By paid School District No. 2, Voucher No. 8 i BOG She ie Taos By paid School District No. 3, Voucher No. 9 ae Ne ih fb Se BE ae By paid School District No. 4, Voucher No. 10 eras SS “Gey le By balance on hand invested on bond and mortgage, dated February 24, 1888, made by O. G. and wife, on real estate in said town e To Balance 38—Doe FunpD. To cash received from J. W. M., late Supervisor . To cash from A. B., Collector -. Contra. By cash paid L. O., Voucher No. 30 By cash paid D. M., Voucher No. 31 By cash paid E. C., Voucher No. 32 By cash paid D. E., Voucher No. 33 By cash paid A. M., Voucher No, 34 By cash paid “poor fund By balance on hand ‘ To balance on hand 15 Dr. Cr. $360 00 21 60 $381 60 #6 00 12 00 7 50 9 00 347 10 $381 60 $381 60 $347 10 ° Dr. Cr. $100 00 75 00 $175 00 $24 50 20 00 7 50 5 00 8 50 30 50 79 00 $175 00 $175 00 $79 00 As to any other funds coming to his hands similar entries may be made. 76 THE Law OF SUPERVISORS. § 81. To render a final account. Within fifteen days after the determination of his office, to make out a just and true account of all school moneys theretofore received by him, and of all disburse- ments thereof, and to deliver the same to the Town Clerk, to be filed and recorded, and to notify his successor in office of such rendition and filing. Laws 1864, chap. 555, title IV., § 6, { 6. Library moneys. To disburse the library moneys upon, and only upon, the written orders of a sole Trustee or a majority of the Trustees. bzd., § 6, 4 2. Union free schools. In the case of a union free school district, to pay over all the school money apportioned hereto, whether for the payment of teachers’ wages or as library moneys, to the Treasurer if such district, upon the order of its Board of Education. Ibid., § 6, 3. The State Superintendent of Public Instruction makes the following comments thereon: If the order is regular upon its face, that is to say, if it bears the signatures of a majority of the persons acting in fact as Trustees of a district, under color of an election, in favor of a person whom it states to be a duly qualified teacher, employed by them in the district during the year in which it is drawn, and in payment of his wages as such teacher, it is a sufficient voucher for the Supervisor, as it is not for him to inquire whether the Trustees have exceeded their authority, or acted improperly in drawing the order. If presented by any other person than the teacher in whose favor it is drawn, it should bear his written in- dorsement or order for payment to a specified person. Code of Public Instruction, 179. § 82. Accounts of school moneys. It is the duty of every Supervisor : To pay teachers. To disburse the school moneys in his hands, applicable to the payment of teachers’ wages, upon, and only upon, the written orders of a sole Trustee, or a majority of the Trustees, in favor of qualified teachers, or upon the order of the Trustee of a separate Duties as To Pusiic Moneys. vee neighborhood, in favor of any teacher of a school in an adjoining state, recognized by him and patronized by the inhabitants of such neighborhood. Such teacher shall be deemed a qualified teacher. Laws 1864, chap. 555, title IV., § 6, { 1; 2 R.S. (8thed.) 1283. The Supervisor will be protected in disbursing school moneys upon the orders of the proper officers, drawn in proper form, and, although the statute says he shall pay the wages of qualified teachers, he is not bound to know or to inquire whether the teacher mentioned in an order was qualified or not, and even if he knew that the teacher was not aqualified teacher the order would protect him in making payment thereon. It is the duty of the school officers to determine whether teachers employed by them are qualified or not, and it is no part of the duty of the Supervisor. In so far as teachers are concerned he is a mere disbursing officer and pays upon vouchers when in due form. To keep account thereof. To keep a just and true ac- count of all the school moneys received and disbursed by him during each year, and to lay the same, with proper voucher, before the Board of Town Auditors at each annual meeting thereof. Laws 1864, chap. 555, title IV., § 6, J 4; 2 R. S. (8th ed.) 1283. The following form will be a compliance with the re- quirements of this paragraph of the statute. Orson EARL, Supervisor of the Town of Evans, In account with said town. Dr. Cr. To whom| for what No. Am't. paid. | purpose. | voucher. Fill the blanks according to the facts as they occur. From whom| For what received. | purpose. Date. Am’t. || Date. 78 Tue Law OF SUPERVISORS. The above provision of the statute requires this account accompanied with proper vouchers for all disbursements, to be laid before the Board of Town Auditors at their annual meeting. To keep a record. To have a bound blank book (the cost of which shall be a town charge) and to enter therein all-his receipts and disbursements of school moneys, specifying from whom and for what purpose they were received, and to whom and for what purpose they were paid out; and to deliver the book to his successor in office. Laws of 1864, chap. 555, T. IV., § 6,9 5; 2 R. S. (8th ed.) 1283. The following form (when the town book is not prop- erly ruled) will comply with this requirement : Joun H. Stoneway, Supervisor of Town of Grand Island, In account with the Trustees of School Dist. No. 1. Dr. Cr. From w hom Am’t. ‘) received. For what To whom|For what | No. of purpose. paid. purpose. | voucher. ri rie a | Date Date. Am’t. | i Fill the above blanks according to the facts as they occur. - Account to be presented to Town Auditors. The above provision of the statute requires this account, accom- panied with the proper vouchers for all disbursements, to be laid before the Board of Town Auditors, at their annual meeting. Final account. It is also provided above, that within fifteen days after the determination of his office he is to make out and file with the Town Clerk just and true ac- counts, etc. This provision of the statute is complied Duties as TO Pusiic Moneys. 79 with by making out and filing with the Town Clerk a true copy of the last two above accounts, because the original accounts as entered in the books as above provided pass to his successor in office. § 83. When he must account. On Tuesday preceding the annual town meeting he shall account with the Justices of the Peace and Town Clerk of the town for the disbursement of all moneys re- ceived by him. 1R. S. (8th ed.) 899, § 4. § 84. Accounts how and when to be audited. No account shall be audited by any Board of Town Au- ditors or Supervisors, or Superintendents of the Poor, for any services or disbursements, unless such account shall be made out in items, and accompanied with an affidavit attached to, and tobe filed with such account, made by the person presenting or claiming the same, that the items of such account are correct, and that the disbursements and services charged therein have been in fact made or rendered, or necessary to be made or rendered at that session of the Board, and stating that no part thereof has been paid or satisfied. And the chairman of such Board, or either of said Superintendents, is hereby authorized to administer any required oath under this section. Laws 1845, chap. 180, § 24, as amended by Laws 1847, chap. 490; 1 R.S. (8th ed.) 917. Must present his books and vouchers to Town Board. When the Supervisor appears before the Board of Town Auditors for a settlement of his accounts he should have with him the books in which his accounts are required to be kept as above provided and also a copy of his accounts verified, together with vouchers. After his accounts are audited it is his duty to leave with the Town Clerk the copy of his accounts. Instead of a literal copy of his accounts to be filed with the Town Clerk many Supervisors present a report under oath in which is set forth all their accounts. Either mode will do, providing the accounts are set forth 80 THE LAW OF SUPERVISORS. plainly and distinctly so that they may be readily under- stood. ; It is indispensably necessary that he should have with him at such accounting all his vouchers for moneys dis- bursed, as such vouchers are the evidence of his having made the disbursements for which he claims credits. In taking vouchers for moneys disbursed, where the disbursement is not made uponan order in writing, drawn upon him, he should be careful to see that the voucher is sufficiently full so that it will explain itself when laid before the Board. Where the Board accept and act upon an account containing various items presented to them for audit and allowance, they are estopped from objecting, subse- quently, that the account only is verified and not the items of the account as required by the statute. People v. Supervisors of St. Lawrence Co., 30 How. Pr. R. 173. § 85. Audit of his accounts. When a Supervisor’s accounts are audited and passed by the Board of Town Auditors, the Auditors shall enter in the Supervisor’s book of accounts and indorse upon the copy thereof to be filed with the Town Clerk, a certificate, showing the then exact situation and condi- tion of the accounts, and the actual balance of moneys on hand, which balance thus ascertained and fixed stands as a debt against the Supervisor and for which his bondsmen are, and will remain, liable until it is properly disbursed and accounted for, or paid over to his successor in office. 1K. 8S. (8th ed.) 899, § 5, as amended by Laws 1866, chap. 534. Auditor’s Certificate. County or Err, ) ae Town of Lancaster. § °* The undersigned, constituting the Board of Town Auditors of said town, for the audit of the Supervisor’s accounts, do hereby certify that we have this day fully examined the above (or within) account of Nathan B. Gatchell, Supervisor of said town, and the vouchers DvutiEs As TO PUBLIC Moneys. 81 accompanying the same, and have found the same to be true and correct in all respects, and that the following is a correct statement of his account with the said town at the present time, viz.: Receipts. Disbursements. | On hand. Poor fund_......_._._- $1,000 00} $400 00 | $600 00 School moneys-.---.--- 2,500 00) 2,500 00 Local school fund--.--- 800 00 50 00 950 00 Dog fund.--.--.----.--- 150 00 75 00 75 00 $3,950 00 $3,025 00| $925 00 Showing a balance on hand belonging to said town of $925,00. Dated March 6, 1888. (Signed) L. D., Z Justices of the Peace. I. M., Town Clerk. FURTHER DUTIES UNDER THE GENERAL SCHOOL LAW. § 86. Of the gospel and school lots. The several Supervisors continue vested with the powers and charged with the duties formerly vested in and charged upon the Trustees of the Gospel and School lots, and transferred to, and imposed upon, Town Superintendents of Common Schools by chapter one hundred eighty-six of the Laws of one thousand eight hundred and forty- six.* Laws 1864, chap. 555, title IV.,§1; 2R.58. (8th ed.) 1282. * The following is chap. 186, Laws 1846, referred to in the text. An act to abolish the office of Trustees of the Gospel and School lots, and to transfer the powers and duties of the same to the Town Superintendent of Common Schools. Passed May 11, 1846. The people of the State of New York, represented in Senate and Assembly, do enact as follows : §1. The office of Trustees of the Gospel and School lots in the several towns in this state, is hereby abolished ; and the powers and duties, now 6 82 THE LAW OF SUPERVISORS. The Supervisors,+ besides the ordinary powers of a corporation, shall have power, and it shall be their duty 1. To take and hold possession of the gospel and school ° lot of their town, 2. To lease the same for such time, not exceeding twenty-one years, and upon such conditions as they shall deem expedient, 3. To sell the same, and with the advice and consent of the inhabitants of the town, in town meeting assem- bled, for such price and upon such terms of credit as shall appear to them most advantageous, 4. To invest the proceeds of such sale in loans, secured by bond and mortgage upon unincumbered real property of the value of double the amount loaned, 5. To purchase the property so mortgaged upon a fore- closure, and to hold and convey the property so purchased whenever it shall become necessary, 6. To re-loan the amount of such loans repaid to them upon the like security, 7. To apply the rents and profits of such lots, and the interest of the money arising from the sale thereof, to the support of the gospel and schools, or either, as may be provided by law, in such manner as shall be thus provided, 8. To render a just and true account of the proceeds of the sales, and the interest on the loans thereof, and of the rents and profits of such gospel and school lots, and of the expenditure and appropriation thereof, on the last Tuesday next preceding the annual town meeting in each year, to the Board of Auditors, of the accounts of other town officers, 9. To deliver over to their successors in office, all books, papers and securities relating to the same, at the expira- tion of their respective offices, and 10. To take therefor a receipt, which shall be filed in the Clerk’s office of the town. 2 R. S. (8th ed.) 1836. by law conferred and imposed upon said Trustees, shall hereafter -he exercised by the Town Superintendent of Common Schools. §2. This act shall take effect immediately. + Supervisors substituted for Trustees. See Laws 1856, chap. 179, $27. DvurtIEs as TO PUBLIC MONEYs. 83 § 87. Gospel and school lots, when towns are divided. Whenever a town, having lands assigned to it for the support of the gospel or of schools, shall be divided into two or more towns, or shall be altered in its limits by the annexing of a part of its territory to another town or towns, such lands shall be sold by the Trustees* [Super- visor] of the town in which such lands were included immediately before such division or alteration ; and the proceeds thereof shall be apportioned between the towns interested therein, in the same manner as the other public moneys of the towns so divided or altered are apportioned. 2K. S. (8th ed.) 1336, § 5. § 88. Shares, to whom paid. The shares of such moneys to which the towns shall be respectively entitled shall be paid to the Trustees* [Supervisors] of the gospel and school lots of the respect- ive towns and shall thereafter be subject to the pro- visions of this title. 2 R. S. (8th ed.) 1336. § 6. § 89. Supervisor liable for loss of such funds. Where the Supervisor of a town, acting under § 27,chap. 179, Laws of 1856, as ‘‘ Trustee of the Gospel and School lots” improperly invests and thereby loses moneys belong- ing to such fund, an action to compel him to account and make good the loss occasioned, shall be brought by his successor, who shall describe himself in the title of the action as the Trustee of the Gospel and School lot. Tay- lor v. Gurnee, 26 Hun. 624. § 90. His powers under Laws 1829, chap. 287. he several Supervisors continue vested with the powers and charged with the duties conferred and imposed upon the Commissioners of Common Schools, by the act of 1829, entitled ‘‘ An act relative to moneys in the hands of aaa of the Poor.” Laws 1864, chap. 555, title IV., § 2 To a correct cae eee of this section, and to ena- ‘ble Supervisors to know what duties are devolved upon * Transferred to Supervisor by Laws 1856, chap. 179, § 27. 84 Tue Law OF SUPERVISORS. them by said section, the chapter therein referred to is here given in full. As the section transfers the duties theretofore discharged by ‘‘ Commissioners of Common Schools” upon Supervisors, I have, in transcribing that chapter, enclosed the word, ‘‘Supervisors” in brackets, immediately succeeding ‘‘Commissioners of Common Schools,” wherever those words occur therein. CHAPTER 287, Laws 1829. An act relative to moneys in the hands of Overseers of the poor. Money, how to be appropriated. §1. Itshall be lawful for the inhabitants of any town in such counties as have abolished the distinction between county and town paupers, and in such counties as may hereafter abolish such distinctions at any annual or special town meeting, to appropriate all or any part of the moneys and funds remaining in the hands of the Overseers of the Poor of such town after such abolition, to such objects and for such purposes as shall be determined on at such meeting. School fund. § 2. If any such meeting shall appro- priate such money or funds for the benefit of com- mon schools in their town, the money so appropriated shall be denominated ‘“‘The Common School Fund of such town,” and shall be under the care and superintend- ence of the Commissioners of Common Schools [Super- visor] of said town. Money and securities to be delivered to Supervisor. § 3. If any such meeting shall appropriate such money or funds for the benefit of common schools, after such appropriation shall have been made and after the Com- missioners of Common Schools [Supervisor] shall have taken the oath of office, the Overseers of the Poor of such town shall then pay over and deliver to the said Commis- sioners [Supervisor] such moneys, bonds, mortgages, notes and other securities remaining in their hands as such Overseers of the Poor, as will comport with the appropriation made for the benefit of common schools of their town. Duties as TO Pusitic Moneys. 85 Suits. § 4. The said Commissioners [Supervisor] may sue for and collect, in their name of office, the money due or to become due on such bonds, mortgages, notes or other securities, and also all other securities by them taken under the provisions of this act. Permanent school fund. § 5. The moneys, bonds, mortgages, notes and other securities aforesaid, shall continue and be a permanent fund, to be denominated the common school fund of the town appropriating the same, the annual interest of which shall be applied to the support of common schools in such towns, unless the inhabitants of such town, in annual town meeting, shall make a different disposition of the whole of the princi- pal and interest, or any part thereof, for the benefit of the common schools of such town. Loans on bond and mortgage. § 6. The Commis- sioners of Common Schools (Supervisor], whenever the whole or any part of the principal of said fund shall come to their hands, shall loan the same on bond secured by a mortgage on real estate, of double the value of the moneys so loaned, exclusive of buildings or artificial erections thereon. Foreclosure of mortgage. §%. The said Commission- ers of Common Schools [Supervisor] may purchase in the estate on which the fund shall have been secured, upon the foreclosure of any mortgage, and may hold and convey the same for the use of said fund. Interest, how to be applied. § 8. The said Commis- sioners of Common Schools [Supervisor] shall retain the interest of said common school fund, which shall be dis- tributed and applied to the support of common schools of such town, in like manner as the public money for the support of common schools shall be distributed by law. Supervisor to account annually. §9. The said Com- missioners of Common Schools [Supervisor] shall account annually, in such manner and at such time as town offi- cers are required by law to account, and shall deliver to their successors in office all moneys, books, securities and papers whatsoever, relating to said fund, and shall take a receipt therefor, and file the same with the Town Clerk. 86 Tue LAW OF SUPERVISORS. CHAPTER V. OF DUTIES PERFORMABLE BY SUPERVISOR INDIVIDUALLY—DUTIES UNDER SCHOOL LAWS. 91. To sue for penalties and forfeitures. 92, Renewal of warrant for school tax. 93. Apportionment of school moneys. 94, His duties in relation thereto. 95. Alteration in school districts—with forms. 96. Duties on dissolution of school districts. 97. As to taxes in districts embracing parts of several towns. 98. He may call school meetings—when—with forms. 99. Eligibility of women to vote at school meetings. : . His duties in connection with Town Clerk. § 101. He may hold property in trust for schools. § 102. Actions against school officers. § 103. To apportion value of railroads, etc. § 104. Duties under act relating to compulsory education. § 105. Duties as to deaf mutes. § 106. Application of parents, etc. § 107. His duty thereon. § 108. May send pupils to Western N. Y. Inst. for deaf mutes. § 109. May send pupils to Northern N. Y. Inst. for deaf mutes. § 110. Forms for that purpose. Lh We M2 Ms Lo Ls I Ls 2 Do _ So o § 91. Supervisor’s duty to sue for penalties and forfeitures. It is the duty of every Supervisor: By his name of office, when the duty is not elsewhere imposed by law, to sue for and recover penalties and forfeitures imposed for violation of this act, and for any default or omission of any town officer or school district board or officer under this act ; and after deducting his costs and expenses, to report the balance to the School Commissioners. Laws 1864, chap. 555, title IV., § 6, { 9; 2 R. S. (8th ed.) 1283. § 92. Supervisors consent to renewal of warrant. Whenever more than one renewal of a warrant for the Dutirs UNDER ScHOOL Laws. 87 collection of any tax list may become necessary in any district, the trustees may make such further renewal. with the written approbation of the Supervisor of any town in which a school-house of said district shall be located, to be indorsed upon such warrant. Laws 1864, chap. 555, title VII., §87, as amended by Laws, 1867, chap. 406. Renewal of warrant for school tax. With the written approbation of the Supervisor of the town of Elma we hereby renew the within (or above) warrant as to delinquents for the period of thirty days from this day. Dated Elma this day of 1888. HARVEY J. HURD, JOHN BLACK, SAM’L EWING, Trustees of School District No. 2, in Town of Elma. The approbation of the Supervisor may be in following form : I hereby approve and consent to a further renewal of the within (or above) warrant for the period of thirty days from this date. ; Dated Elma this day of 1888. MYRON H. CLARK. Supervisor of Town of Elma. The consent of the Supervisor is necessary only where two or more renewals are sought. The first renewal does not require his consent. § 93. Certificate to Supervisor of apportionment of school moneys. They [the School Commissioners] shall certify to the Supervisor of each town, the amount of school moneys so appropriated to his town, and the portions thereof to be paid by him for library purposes and for teachers’ wages, to each such distinct separate neighborhood, dis- trict and part of a district. Laws 1864, chap. 555, title III., § 27,110; 2R. 8. (8th ed.) 1281. 88 Tort LAW OF SUPERVISORS. §94. Supervisor’s duty in relation thereto. On receiving the certificate of the Commissioners, such Supervisor shall forthwith make a copy thereof for his own use, and deposit the original in the office of the Clerk of his town ; and the moneys so apportioned to his town shall be paid to him immediately on his compliance with the requirements of the next section, and not before. Laws 1864, chap. 555, title III., § 30. For form of bond required by the next section to be given by Supervisor before he can receive the school moneys see § 38, supra. § 95. Alterations in school districts. With the written consent of the Trustees of all the districts affected thereby, he [the School Commissioner] may, by order, alter any school district within his jurisdiction, and fix, by said order, a day when the alteration shall take effect. Laws 1864, chap. 555, title VI., § 2, as amended vy Laws 1867, chap. 406. If the Trustees of any such district refuse to consent, he may make and file with the Town Clerk his order, making the alteration, but reciting the refusal, and di- recting that the order shall not take effect, as to the dis- senting district or districts, until a day therein to be named, and not less than three months after the notice in the next section mentioned. Jbid., §3. Within ten days after making and filing such crder, he shall give at least a week’s notice in writing to one or more of the assenting and dissenting Trustees of any dis- trict or districts to be affected by the proposed altera- tions, that at a specified time and at a named place with- in the town in which either of the districts to be affected lies, he will hear the objections to the alteration. The Trustees of any district to be affected by such order, may request the Supervisor and Town Clerk of the town or towns within which such district or districts shall wholly or partly lie, to be associated with the Commissioner At the time and place mentioned in the notice, the Com- missioner or Commissioners, with the Supervisors and Town Clerk, if they shall attend and act, shall hear and Duties UNDER ScHooL Laws. 89 decide the matter ; and the decision shall be final unless duly appealed from. Such decision must either confirm or vacate the order of the Commissioner, and must be filed with and recorded by the Town Clerk of the town or towns in which the district or districts to be affected shall le. Laws 1864, chap. 555, title VI., § 4, as amend- ed by Laws 1865, chap. 647. The week’s notice to the Trustees is indispensable. People v. Hooper, 13 Hun, 639. Commissioner’s order forming or altering a district. In the matter of the formation of district ) No. in the Town of Concord, Coun- | ty of Erie, and the consequent alteration | of district No. in said town and | district No. in the Town of Sardinia. } It is hereby ordered by the undersigned School Com- missioner for commissioner district No. 3 of the County of Erie, that a new school district be formed to consist. of part of district No. in the town of Concord and part of district No. in the town of Sardinia, which new district is hereby numbered and is bounded as follows: (Here give particular description of territory to be included in the new district.) This order is made with the consent of allof the Trustees of each of said districts affected thereby, which consent is annexed hereto and to be recorded herewith, and shall take effect on (giving date). Dated June 28, 1888. : C. D., School Commissioner. Consent by Trustees. Ata meeting of the Trustees of District No. in the town of Concord, in the County of Erie, called for the purpose of considering certain proposed alterations thereof, held on the day of 1888, at which were present A. B., C. D. and E. F. (or in case one of the Trustees should be absent, then proceed) and in the 90 THE LAW OF SUPERVISORS. absence of E. F., a Trustee who, having been duly noti- fied of such meeting but failed to attend, it was Resolved, that the consent of the Trustees of district No. in the town of Concord be and hereby is given, to the alteration of said district by an order bearing date June 28, 1888, made by C. D., School Commissioner of the Third Commissioner’s District of Erie County (or that said district be so altered as to be hereafter bounded as follows : describing the new boundaries fully). In witness whereof the undersigned Trustees (or a majority of said Trustees) have hereunto subscribed their hands this day of 1888. A.B., C. D., Trustees of School District No. When a majority of the Trustees refuse to consent as pro- vided in section three above quoted, the order of the Com- missioner must recite such refusal and direct that the order shall not take effect as to the dissenting district or districts until a day therein to be named and not less than three months after notice to the dissenting Trustees. In such case the order would be the same as the above, to and including the description of the new district, and would then proceed : This order is made with the consent of all the Trustees of said district No. The Trustees of district No. not having consented to this order, it will not take effect in respect to said last mentioned district until September 1888, after three months’ notice shall be given to one or more of the assenting and dissenting Trustees of said districts to be affected by said proposed alteration. Dated June 28, 1888. ©. D., School Commissioner. The Trustees of either or both of the districts to be affect- ed by the alteration may request the Supervisor and Town Clerk to be associated with the School Commissioners. The School Commissioner cannot request them to be associated with him. The School Commissioner should Duties UnpER ScHOOL Laws. 91 serve a notice upon one or more of the Trustees of the assenting and dissenting districts like the following : Notice. To the Trustees of Districts No. in the Town of Con- cord : Take notice that I intend on the day of at Springville, to make an order for the alteration of district No. in the Town of Concord, so thatits boundaries shall thereafter be as follows: (here insert description of district as in above order.) You are, therefore, requested to meet without delay, and to adopt a resolution consenting to the above altera- tion, in which case you will please furnish me at said time and place with a copy thereof, certified under the hands of a majority of you, or to adopt a resolution applying to the Supervisor and Town Clerk of the town (or towns if the district is a joint one) of Concord, to be associated with me at the time and place above mentioned in determining upon the propriety of such proposed alteration. In the latter case you will please transmit copies of such reso- lution, certified under the hands of a majority of you, to the Supervisor and Town Clerk, without delay, to- gether with notice of the time and place above stated, at which such alteration will be made by me, in case of their non-attendance. C. D., School Commissioner. Decision by School Commissioner, Supervisor and Town Clerk. In the matter of the formation of district | No. in the town of Concord, County | of Erie and the consequent alteration + of district No. in said town and | district No. in the town of Sardinia. J We, the undersigned Commissioner of Common Schools for the Third District of Erie County, Supervisors and Town Clerk of the Town of Concord, in said county, having met at the house of at the village of Spring- ville, in said town, on the, day of 1888, for the 92 Tor Law OF SUPERVISORS. purpose of hearing and deciding the matter of the order made by such Commissioner of Common Schools, on the day of 1888, altering school district No. in said town, which order is as follows (here insert order at length). And having heard all the objections presented to said order, do hereby decide that said order be and hereby is confirmed (or vacated). Given under our hands the day of 1888. [Signatures of Commissioner, Supervisor and Town Clerk. ] These several orders are required, by section four, above quoted, to be filed with and recorded by the Town Clerk of the town or towns in which the district or districts to be affected shall lie. § 96. Supervisor’s duties on dissolution of district. To sell property of dissolved districts. When a district is parted into portions, which are annexed to other districts, its property shall be sold by the Supervisor of the town within which its school-house is situated, at public auction, after at least five days’ notice, by notices posted in three or more public places of the town in which the school-house is, one of which shall be posted in the district so dissolved. The Supervisor, after de- ducting the expenses of the sale, shall apply its proceeds tothe payment of the debts of the district, and appor- tion the residue, if any, among the owners or possessors of taxable property in the district, in the ratio of the several assessments on the last corrected assessment roll or rolls of the town or towns, and pay it over accord- ingly. Laws 1864, chap. 555, title VI., § 9, as amended by Laws 1875, chap. 567, § 14; 2 R. S. (8th ed.) 1286. To sue for outstanding moneys. The Supervisor of the town within which the school-house of the dissolved district was situate, may demand, sue for and collect, in his name of office, any money of the district, outstand- ing inthe hands of any of its former officers, or any other person ; and, after deducting his costs and expenses, shall Duties UNDER ScHoo. Laws, 93 report the balance to the School Commissioner, who shall apportion the same equitably among the districts to which the parts of the dissolved district were annexed, to be by them applied as their district meeting shall determine. Laws 1864, chap. 555, title VI., § 10. Dissolved district continues for purposes of settlement. Though a district be dissolved, it shall continue to exist in law, for the purpose of providing for and paying all its just debts; and to that end the Trustees and other officers shall continue in office, and the inhabitants may hold special meetings, elect officers to supply va- cancies, and vote taxes ; and all other acts necessary to raise money and pay such debts shall be done by the inhabitants and officers of the district. Ibid., § 11; 2 R. 8. (8th ed.) 1286. § 97. Taxes in districts embracing parts of several towns. When a district embraces parts of more than one town it shall be the duty of the Supervisors of such towns, so in part embraced, upon receiving a written notice from the Trustee or Trustees of such district, or from three or more persons liable to pay taxes upon real estate therein, to meet at a time and place to be named in such notice, which time shall not be less than five or more than ten days from the service thereof, and a place within the bounds of the towns so in part em- braced, and proceed to inquire and determine whether the valuations of real property upon the several assess- ment rolls of said towns are substantially just as com- pared with each other, so far as said districts are con- cerned, and if ascertained not to be so, they shall de- termine the relative proportion of taxes that ought to be assessed upon the real property of the parts of such district lying in different towns, and the Trustees of such districts shall thereupon assess the proportion of any tax thereafter to be raised, according to the determina- tion of such Supervisors, until new assessment rolls of the towns shall be perfected and filed, using the 94 THE LAW OF SUPERVISORS. assessment rolls of the several towns to distribute the said proportion among the persons liable to be assessed for the same. In cases when such Supervisors shall be unable to agree they shall summon a Supervisor from some adjoining town, who shall unite in such inquiry, and the finding of a majority shall be the determination of such meeting. Laws 1874, chap. 555, title VIL, § 69, as amended by Laws 1875, chap. 567, § 21; 2 R. S. (8th ed.) 1300. The Superintendent of Public Instruction has made the following rulings in cases arising under this section. The Supervisors of Cazenovia and Sullivan were applied to under this statute to inquire and determine whether the valuations of real property upon the several assess- ment rolls of those towns were substantially just as compared with each other, so far as district No. 3, lying partly in each town, was concerned. The two Supervisors being unable to agree, a third was called in and they determined that the amount of $10,650.31 should be added to the assessment of the town of Cazenovia for said district. The Superintendent set aside their proceedings and held that they wereirregular. Their action was not such as is contemplated by law. Their duty was to determine the relative proportion of taxes that ought to be assessed upon the real property of the parts lying in the differ- ent towns. Instead of doing this, the Supervisors under- took to equalize the valuation of real property in the different towns so far as said district is concerned, and for this no warrant of law can be found. Codeof Public Instruction, 475, § 98. § ie : - may call special meeting when annual meeting not eld. Whenever the time for holding the annual meeting in school districts shall pass without such meeting being held in any district, a special meeting shall thereafter be called by the Trustees or by the Clerk of such district, for the purpose of transacting the business of the annual meeting ; and if no such meeting be called by the Trustees Duties UNDER SCHOOL Laws. 95 or the Clerk within twenty days after such time shall have passed, the Supervisor or the Superintendent of public instruction may order any inhabitant of such dis- trict to give notice of such meeting in the manner pro- vided in the second section of this title and the officers of the district shall make to such meeting the reports required to be made at the annual meeting, subject to the same penalty in case of neglect; and the officers elected at such meeting shall hold their respective offices only until the next annual meeting and until their successors are elected and shall have qualified as in this act provided. Laws 1864, chap. 555, title VII., § 10; 2R. 8. (8th ed.) 1288. The mode of giving notice of such meeting is pre- scribed in the ‘‘ second section of -this title ” above referred to, which section is as follows: It shall be the duty of such inhabitant to notify every other inhabitant of the district or neighborhood, qualified to vote at the meeting, by reading the notice in his hearing, or, in case of his absence from home, by leaving a copy thereof, or so much thereof as relates to the time, place and object of the meeting, at the place of his abode at least six days before the time of the meeting. Laws 1864, chap. 555, title VIL, §2;2 R. 8. (8th ed.) 1287. Form of notice of such meeting. To Garwood L. Judd, a taxable inhabitant of school district No. in the Town of Wheatfield, Niagara County, N. Y. Whereas, the annual meeting in said district has not been held for the year 1888 at the time prescribed by law, and no special meeting having been called within twenty days after such time by the Trustees or the Clerk of said district for the purpose of transacting the business of the annual meeting as provided by statute, You are hereby ordered to give notice to every person of full age residing in the neighborhood or school district, and entitled to hold lands in this state, who owns or hires real property in such neighborhood or school district 96 Ture Law OF SUPERVISORS. liable to taxation for school purposes, and every resident of such neighborhood or district who is a citizen of the United States above the age of twenty-one years and who has permanently residing with him or her, achild or chil- dren of school age, some one or more of whom shall have attended the district school for a period of at least eight weeks within one year next preceding the date hereof, and every such resident and citizen as aforesaid, who owns any personal property assessed on the last preceding assessment roll of the town, exceeding fifty dollars in value, exclusive of such as is exempt from execution, and that a special district meeting of said district is hereby appointed to be held at the school-house in said district, at o’clock on the evening of day of 1888, for the purpose of electing district officers and trans- acting the business of the annual meeting, as provided in sections ten and sixteen of title seven of the General School Law of this state. You are required by law to read this notice in the hear- ing of each inhabitant qualified to vote as above de- scribed, or, in case of his absence from home, to leave a copy thereof or of so much thereof as relates to the time, place and object of such meeting, at the place of his abode, at least six days before the time of the meeting. Dated this day of 1888. LEWIS 8. PAYNE, Supervisor of the Town of Wheatfield. The qualifications of those entitled to vote at district or neighborhood meetings, and consequently those who are entitled to notice of such meeting, are prescribed in section twelve of title seven of said act, as amended by Laws 1881, chap. 492. That section is incorporated in the preamble to above notice. See next section. § 99. Women are eligible to vote and to be voted for. No person shall be deemed to be ineligible to serve as any school officer or to vote at any school meeting, by reason of sex, who has the other qualifications now required by law. Laws 1880, chap. 9; 2 R. 8. (8th ed.) 1329. Duties UNDER ScHoot Laws. 97 § 100. Duties of Town Clerk in connection with Supervisor It shall be the duty of the Town Clerk of each town: To preserve records. 1. Carefully to keep all books, maps, papers and records of his office, touching common schools, and forthwith to report to the Supervisor any loss of or injury of them, which may happen. To record apportionment. 2. To receive from the Super- visor the certificates of apportionment of school moneys to the town, and record them in a book to be kept for that purpose. To notify Trustees. 5. Forthwith tonotify the Trustees of the several school districts and separate neighborhoods of the filing of each such certificate. To record annual accounts. 6. To receive from the Supervisor, and record in a book to be kept for that pur- pose, the annual account of the receipts and disbursements of school moneys required to be submitted to the Town Auditors, together with the action of the Town Auditors thereon, and to send a copy of the account and of the action thereon, by mail, to the Superintendent of Public Instruction, whenever required by him, and to file and preserve the vouchers accompanying the account. Final account. ‘. To receive and record, in the same book, the Supervisor’s final account of the school moneys received and disbursed by him and deliver a copy thereof to such Supervisor’s successor in office. To file certificates. 8. To receive from the out-going Supervisor, and file and record in the same book, the County Treasurer's certificate that his successor’s bond has been given and approved. Laws 1864, chap. 555, title V., § 1, subdiv. 1, 2, 3, 6, 7and 8; 2 R. 8. (8th ed.) 1284, § 101. He may hold property in trust for schools. Real and personal estate may be granted, conveyed, 7 98 Tue LAW OF SUPERVISORS. devised, bequeathed and given in trust and in perpetuity or otherwise * * * to any town or Supervisor of a town * * for the support and benefit of common schools within such county, city, School Commissioner’s district, town or school district, or within any part or portion thereof respectively, or for the support and bene- fit of any particular common school or schools therein. Laws 1864, chap. 555, title ITI.,§ 15; 2 R.S. (8th ed.) 1278. ° § 102. Actions against school officers. In any action against a school officer or officers, includ- ing Supervisors of towns, in respect to their duties and powers under this act, for any act performed by virtue of or under color of their offices, or for any refusal or omission to perform any duty enjoined by law, and which might have been the subject of an appeal to the Superin- tendent, no costs shall be allowed to the plaintiff, in cases where the court shall certify that it appeared on the trial that the defendants acted in good faith. But this pro- vision shall not extend to suits for penalties, nor to suits or proceedings to enforce the decisions of the Superintendent. Laws 1864, chap. 555, title XTII., § 6; 2 R. 8S. (8th ed.) 1316. § 103. To apportion value of railroads, etc., among school districts. It shall be the duty of the Town Assessors, within fif- teen daysafter the completion of their annual assessment list, to apportion the valuation of the property of each and every railroad, telegraph, telephone and _ pipe-line company as appears on such assessment list, among the several school districts in their town in which any por- tion of said property is situated, giving to each of said districts their proper portion, according to the propor- tion that the value of said property in each of such dis- tricts bears to the value of the whole thereof in said town. Laws 1867, chap. 694, § 1, as amended by Laws 1884, chap. 414, $1. Such apportionment to be in writing. Such apportion- ment shall be in writing and shall be signed by said As- Duties UNDER SCHOOL Laws. 99 sessors, or a majority of them, and shall set forth the number of each district and the amount of the valuation of the property of each railroad, telegraph, telephone and pipe-line company, apportioned to each of said dis- tricts ; and such apportionment shall be filed with the Town Clerk, by said Assessors, or one of them, within five days after being made; and the amount so appor- tioned to each district shall be the valuation of the prop- erty of each of said companies, on which all taxes against said companies in and for said districts shall be levied and assessed, until the next annual assessment and apportionment. Laws 1867, chap. 694, § 2, as amended by Laws 1884, chap. 414, § 2. Supervisor to act in case of Assessor’s neglect. In case the Assessors shall neglect to make such apportionment, it shall be the duty of the Supervisor of the town, on the application of the Trustees or Board of Education of any district, or of any railroad, telegraph, telephone or pipe- line company, to make such apportionment, in the same manner and with likeeffect as if made by said Assess- ors. Laws 1867, chap. 694, § 3, as amended by Laws 1885, chap. 340. Town Clerk to furnish statement. The Town Clerk shall, whenever requested, furnish to the Trustees or Board of Education of each district, a certified statement of the amounts apportioned to such district, and the name of the company to which the same relates. Laws 1867, chap. 694, § 4. In case of alterations of school districts. In case any alteration shall be made in any school district, affecting the property of any railroad, telegraph, telephone or pipe-line company, the officer making such alteration shall, at the same time, determine what change in the valuation of the said property in such district would be just, on account of the alteration of district, and the ‘valuation shall be accordingly changed. Laws 1867, chap. 694, § 5, as amended by Laws 1885, chap. 340. 100 THE Law OF SUPERVISORS. § 104. Duties under act relating to compulsory education. ; The Trustee or Trustees of any school district or public school, or the President of any union school, or such officer as the Board of Education of said city, incorporat- ed village or town may designate, is hereby authorized and empowered to see that sections one, two, three, four and five of this act are enforced, and to report in writing all violations thereof to the Treasurer or chief fiscal offi- cer of his city, or to the Supervisor of his town ; any per- son who shall violate any provision of sections one, three and four of this act shall, on written notice of such vio- lation from any of the school officers above named, forfeit, for the first offence, and pay to the Treasurer or chief fiscal officer of the city, or to the Supervisor of the town in which he resides or such offence has occurred, the sum of one dollar, and, after such first offence, shall, for each succeeding offence in the same year, forfeit and pay to the treasurer of said city or Supervisor of said town, the sum of five dollars for each and every week, not ex- ceeding thirteen weeks in any one year, during which he, after written notice from said school officer, shall have failed to comply with any of said provisions, the said penalties, when paid, to be added to the public school money of said school district in which the offence oc- curred. Laws 1874, chap. 421, § 5, as amended by Laws 1876, chap. 372, § 38. 2R. 8. (8th ed.) 1339, To furnish school books in certain cases. In every case arising under this act where the parent, guardian, or other person having control of any child between the said ages of eight and fifteen years, is unable to provide such child for said fourteen weeks with the text books required to be furnished, to enable such child to attend school for said period, and shall so state in writing to the said Trustee, the said Trustee shall provide said text books for said fourteen weeks, at the public school for the use of such child, and the expense of the same shall be paid by the Treasurer of said city or the Supervisor of said town, on the certificate of the said Trustee, specifying Duties as TO DEAF MUTES. 101 the items furnished for the use of such child. Laws 1874, chap. 421, § 6. Actions for penalties, by whom brought. Allactions for fines and penalties under this act shall be brought in the name of the Treasurer or chief fiscal officer of the city, or Supervisor of the town, to whom the same is payable, but shall be brought by and under the direction of the said Trustee or Trustees, or said officer designated by the Board of Education. Ibid., § 9. HIS DUTIES AS TO DEAF MUTES. § 105. Deaf mutes to be placed in state institution. Whenever a deaf mute child, under the age of twelve years, shall become a charge for its maintenance on any of the towns or counties of this state, or shall be liable to become such charge, it shall be the duty of the Over- seers of the Poor of the town, or of the Supervisors of such county, to place such child in the New York Institu- tion for the Deaf and Dumb, or in the Institution for the Improved Instruction of Deaf Mutes, or in the Le Cout- eulx St. Mary’s Institution for the Improved Instruction of Deaf Mutes, in the city of Buffalo, or in the Central New York Institution for Deaf Mutes, in the city of Rome, or in any institution of the state for the education of deaf mutes. Laws 1863, chap. 325, § 1, as amended by Laws 1875, chap. 213, § 1. 3R. S. (8th ed.) 2206. § 106. On application of parents, etc. Any parent, guardian, or friend of a deaf mute child within this state, over the age of six years and under the agé of twelve years, may make application to the Overseers of the Poor of any town, or to any Supervisor of the county where such child may be, showing by satis- factory affidavit, or other proof, that the health, morals or comfort of such child may be endangered, or not prop- erly cared for, and thereupon it shall be the duty of such Overseer or Supervisor to place such child in the New York Institution for the Deaf and Dumb, or in the Insti- tution for the Improved Instruction of Deaf Mutes, or in 102 Tye Law OF SUPERVISORS. the Le Couteulx St. Mary’s Institution for the Improved Instruction of Deaf Mutes, in the city of Buffalo, or in the Central New York Institution for Deaf Mutes, in the city of Rome, or in any institution in the state for the education of deaf mutes. Laws 1863, chap. 325, § 2, as amended by Laws 1875, chap. 213, § 2. § 107. Duty of Supervisor as to deaf mutes. Any parent, guardian, or friend of any deaf mute child within this state, over the age of six years and under the age of twelve years, may make application to the Super- visor of the town or city where such child may be, for a permit or order to place such child in the New York Institution for the Deaf and Dumb, or in the Institution for the Improved Instruction of Deaf Mutes, or in any of the deaf mute institutions of this state, and it shall be the duty of such Supervisor, if in his judgment the means of the child, or the parents of such child, will not enable them to defray the expense in a public institution, to grant such permit or order and to cause said child to be received and placed in such one of the institutions of this state for the education of deaf mutes, as the said Supervisor shall select. Laws 1874, chap. 253; 3 R. S. (8th ed.) 2207. § 108. His powers as to Western N. Y. Inst. for Deaf Mutes. Supervisors of towns and wards and Overseers of the Poor are hereby authorized to send to the Western New York Institution for Deaf Mutes, deaf and dumb persons between the ages of six and twelve years, in the same manner and upon the same conditions as such persons may be sent to the New York Institution for the Instruc- tion of Deaf and Dumb, under the provisions of chapter three hundred and twenty-five of the Laws of 1863. Laws 1876, chap. 331, §2; 3 R. S. (8th ed.) 2208. The Western New York Institution for Deaf Mutes above mentioned is located in the city of Rochester, New York. § 109. His powers as to Northern N, Y. Inst. for Deaf Mutes. Supervisors of towns and wards and Overseers of the Duties as TO Dear Mutss. 103 Poor are hereby authorized to send to the Northern New York Institution for Deaf Mutes, deaf and dumb persons between the ages of six and twelve years, under the provisions of chapter 325 of the Laws of 1863, as amended by chapter 213 of the Laws of 1875, provided that before any pupils are sent to said institution the Board of State Charities shall have made and filed with the Superintend- ent of Public Instruction a certificate to the effect that such institution has been duly organized and is prepared for the reception and instruction of such pupils. Laws 1884, chap. 275, § 2. The Northern New York Institution for Deaf Mutes is located at Malone, New York. § 110. Forms under preceding sections, To C. C. Stanbro, Supervisor of the Town of Concord, Erie County, N. Y. The undersigned, a resident of said Town of Concord, is a friend (or father, or mother, or guardian) of James White, a deaf mute child, which child also resides in said town and was seven years old at his lact birthday, May 10, 1887. Said child resides with his father, his mother being deceased. That the father of said child is pecuniarily unable to properly support said child or to properly educate him, and owing to the confirmed habits of intoxication of his father, I am confident that the morals and comfort of such child are not properly cared for and that his health may be endangered if he be not placed in one of the institutions of the state for the education of deaf mutes. I therefore make application to you to place said child in the Western New York In- stitution for Deaf Mutes, located at Rochester, to be sup- ported and educated as provided by Laws of 1863, chapter 325, as amended by Laws 1875, chapter 213. Dated Springville, June 29, 1887. C. C. SEVERANCE. SratTe or NEw York, | County of Erie. j Charles C. Severance, being duly sworn, says he resides in the Town of Concord, in said county, and is the sub- ss. 104 Tore Law OF SUPERVISORS. scriber to the foregoing application and that the matters set forth in said application are true to deponent’s own knowledge. C. C. SEVERANCE. Sworn to before me this 29th t day of June, 1887. Burt CHAFFEE, Justice of Peace. To (kéeper or officer in charge of the Western New York Institution for Deaf Mutes). Satisfactory evidence having been furnished to me this day, I have selected James White, a deaf mute of the Town of Concord, in the County of Erie and State of New York, a son of Philip White, and who was born May 10, 1870, asa county pupil in the Western New York Insti- tution for Deaf Mutes, at Rochester, for a term which will expire May 10, 1892 (at which time he will be twelve years of age), to be supported and educated during that period at the expense of the County of Erie, pursuant to the provisions of chapter 325 of the Laws of 1863, as amended by chapter 213 of the Laws of 1875. Dated Springville, June 29, 1887. C. C. STANBRO, Supervisor of the Town of Concord. As provision is made by Laws 1863, chap. 325, § 4, as amended by Laws 1875, chap. 213, § 4, for the payment by the County Treasurer of the county from which deaf mutes are sent, of their support and tuition, it would seem to be the duty of the Supervisor, on sending such a pupil to one of the state institutions, to promptly report his action to the County Treasurer. REPORTS TO BE MADE BY SUPERVISOR. 105 . CHAPTER VI. OF DUTIES PERFORMABLE BY SUPERVISOR INDIVIDUALLY—OF REPORTS TO BE MADE BY SUPERVISOR. § 111. Supervisor to report to Board of Supervisors. § 112. To report accounts against his town. § 113. To report moneys voted by his town. § 114. To report rejected taxes. § 115. To report statement by Highway Commissioners. § 116. To report as to bridges over streams forming boundary lines. § 117. To report as to noxious weeds, etc. § 118. To report names of Assessors and Collectors. § 119. To report as to poor supported by towns. § 120. To report as to damages to sheep injured by dogs. § 121. To report lists of Grand Jurors. § 122. To report as to town debts. § 123. To report bonded indebtedness of towns. § 124. To report to Comptroller list of corporations. § 125. To State Engineer as to monuments on state boundaries. § 126. To town meetings as to suits against towns. § 127. To Superintendent of Public Instruction. § 128. To County Treasurer, unexpended balance of school moneys. § 129. To Town Clerk, as to school moneys. § 111. Supervisor to report. Amongst the duties which the laws devolve upon a Supervisor are those of making reports on various sub- jects and to various boards and officers. HIS REPORTS TO BOARD OF SUPERVISORS. § 112. To report accounts against his town. He shall receive all accounts which may be presented to him against the town, and shall lay them before the Board of Supervisors at their next meeting. 1R. 8. (8th ed.) 899, § 7. $113. To report as to moneys voted by his town. He shall also lay before the Board of Supervisors such copies of entries concerning moneys voted to be raised in 106 Tue Law OF SUPERVISORS. his town, as shall be delivered to him by the Town Clerk. 1 RB. S. (8th ed.) 899, § 8. § 114. To report as to rejected taxes. The Comptroller shall, on or before the first day of September in each year, transmit by mail or otherwise, to each County Treasurer, a transcript of the taxes of the preceding year, assessed in any town or ward in such county, which shall have been rejected by him for any cause whatever, stating therein the cause of such rejec- tion. Laws 1855, chap. 427, § 16, as amended by Laws 1878, chap. 152. Whenever the Comptroller, after having transmitted such annual transcript, shall discover that any taxes credited to a county in the books of his office are erro- neous, or that they have been assessed on land, erroneously described, or so imperfectly described that they cannot, in his opinion, be located with certainty, he shall cancel such taxes on the books of his office, and charge them to the county in which such lands shall lie, with the inter- est thereon from the first day of March, in the year fol- lowing that in which the taxes were laid, to the first day of February next after such cancellation. Laws 1855, chap. 427, § 17, as amended by Laws 1878, chap. 152. The Comptroller shall also transmit, by mail or other- wise, a transcript of the returns of such taxes, with the additions of such interest, to the proper County Treas- urer, who shall deliver the same to the Supervisor of the town or ward in which such taxes were assessed, by whom it shall be delivered to the Board of Supervisors at their next meeting. If the town or ward in which such taxes were originally assessed, shall have been divided since such assessment, the County Treasurer shall deliver such transcript to the Board of Supervisors at their next meeting. Laws 1855, chap. 427, § 18, as amended by Laws 1878, chap. 152; 2 R. S. (8th ed.) 1132. § 115. To report as to statement of Highway Commissioners. The Commissioners of Highways of each town, shall deliver to the Supervisor of such town, a statement of REPORTS TO BE MADE BY SUPERVISORS. 107 the improvements necessary to be made on the roads and bridges, together with the probable expense thereof ; which Supervisor shall lay the same before the Board of Supervisors, at their next meeting. The Board of Super- visors shall cause the amount so estimated, to be assessed, levied and collected in such town, in the manner as other town charges; but the moneys to be raised, in such town, shall not exceed in any one year, the sum of two hundred and fifty dollars. % R. 8. (8th ed.) 1348, § 4. Provision is made by Laws 1832, chap. 274, for increas- ing such sum $250 more, and by Laws 1857, chap. 615, the amount may be increased to $750. 2.58. (8th ed.) 1351. By Laws 1873, chap. 395, provision was made for alter- ing the system of repairing highways, which chapter was sees by Laws 1874, chap. 169, and Laws 1875, chap. § 116. As to bridges over streams, etc., forming boundary lines. Each of the counties of this State shall be liable to pay for the construction, care, maintenances, 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 construc- tion, care, maintenance, preservation and repair. Laws 1883, chap. 346, § 1. It shall be the duty of the Commissioners of Highways of every town in which a part of any such public bridge may be made, and deliver to the Supervisor of said town, on or before the first day of November in each year, a statement 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. Laws 1883, chap. 346, § 2. It shall be the duty of the Supervisor to whom such statement is delivered to present the same to the Board of 108 THE Law oF SUPERVISORS. Supervisors of the county in which such town is located, at its next annual session thereafter, etc. Laws 1883, chap. 346, part of § 3. Compare Laws 1875, chap. 482, §§ 3 and 4. All inconsistent provisions of the law are repealed by § 7 of Laws 1883, chap. 346. The provisions of above act do not apply to bridges between the County of Westchester and the County of New York. Laws 1883, chap. 346, § 6. As to laying out hig:ways. On applications to lay out highways, where a verdict is rendered favorable to the laying out of the proposed highways, it is provided that the Commissioners of Highways shall cause a copy of the verdict, with a statement of the charges and expenses, to be delivered to the Supervisor of the town, who shall lay the same before the Board of Supervisors of the county. 2 R. S. (8th ed.) 1876, § 69. § 117. Report as to cutting noxious weeds, brush, etc. It shall be the duty of the Overseer of every road dis- trict and of the Street Commissioner of every city or village to see that the provisions of section one of this act are enforced, and it is hereby made his duty to give written notice to any occupant of premises to cut all weeds, briars and brush growing within the bounds of the highway. If they shall neglect so to do, as above provided, and if, after receiving such notice, the occupant of the premises shall fail to do so within ten days, it shall be the duty of the Overseer or Street Commissioner to employ some one to do so, and make a report under oath, to the Commissioner or Commissioners of Highways, of the amount so expended by him and the ownership and occupancy of the several parcels of land against which such labor was performed, on or before the first day of November in each year. The Commissioner or Commis- sioners of Highways shall certify these statements to the Supervisor of the town, and the Supervisor shall lay the same before the Board of Supervisors at their next meeting and such Board shall include the amounts included in said statements in the taxes assessed upon the lands upon or REPORTS TO BE MADE BY SUPERVISORS. 109 against which the labor was performed, the same to be collected with the other taxes and paid over upon the order of the Supervisor, to the parties entitled thereto. Laws 1878, chap. 49, § 5, as added by Laws 1886, chap. 291, and amended by Laws 1887, chap. 604. It is provided by Laws 1878, chap. 49, § 1 (the section above referredto): It shall be the duty of every person or corporation owning or occupying under a lease for one or more years, any cultivated or inclosed lands abutting upon any highway, to cause all noxious weeds, briars and brush, growing upon said lands, within the bounds of ‘said highways, to be cut or destroyed between the fifteenth day of June and the first day of July, and between the fifteenth day of August and the first day of September, in each and every year. But Boards of Supervisors may fix a different period or periods for such cutting or de- struction in their respective counties. This section shall not be construed to restrict any of the powers heretofore conferred upon Boards of Supervisors. Notice to owner or occupant. To John Jones, owner (or occupant, as the case may be) of part of farm lot No. one, in Township two, Range three, of Holland Land Company’s Land (so called) con- taining forty acres of land abutting on the White’s Corners road inthe Town of Hamburg, in the County of Erie, N. Y., and bounded on the east by said highway, on the north by lands of Samuel Green, on the west by lands of Harry Oakes and on the south by lands of Lucy Bee. You are hereby notified and required to cut and destroy all noxious weeds, briars and brush growing upon the above described lands within the bounds of said highway, jn accordance with the requirements of chap. 49 of Laws 1878, as amended by chap. 604 of Laws of 1887, and if you fail to do so within ten days after receipt of this notice I shall cause the same to be cut and destroyed and will report my action in the premises, together with the expense thereof, to the Supervisor of said Town of 110 Tue LAW OF SUPERVISORS. Hamburg, as required by chap. 604 of Laws of 1887. Dated Hamburg, July 2, 1888. WILLIAM GREEN, Commissioner of Highways. Report of Commissioner of Highways to Supervisor. To Supervisor of Town of Hamburg. I respectfully report that John Jones, owner (or occupant, as the case may be) of part of farm lot No. one in Township two, Range three, of Holland Land Com- pany’s Lands (so called), containing forty acres of land abutting on the White’s Corners road, in the Town of Hamburg, in the County of Erie, N. Y., and bounded on the east by said highway, on the north by lands of Samuel Green, on the west by lands of Harry Oakes and on the south by lands of Lucy Bee, having neglected to cut and destroy the noxious weeds, briars and brush grow- ing upon said lands within the bounds of said highway, between the fifteenth day of June and the first day of July, 1888, I, on July 2d, 1888, personally served upon said John Jones, a notice in writing of which the follow- ing is a copy (here insert copy of above notice). That, notwithstanding the service of said notice, said John Jones neglected and refused to cut and destroy such noxious weeds, briars and brush, for more than ten days next ensuing the service of said notice, and thereupon, as required by law, I employed Alexander Rayner to cut and destroy said noxious weeds, briars and brush, at an expense of one dollar, which sum I paid him for his labor in destroying the same. You will please lay this report before the Board of Supervisors of Erie County at their next meeting, for such action as is provided for by law. Dated August 3, 1888. WILLIAM GREEN, Commissioner of Highways for Hamburg. STATE oF NEw YorK, Town of Hamburg. } William Green, being duly sworn, says he is the same REPORTS TO BE MADE TO SUPERVISORS. 111 person who made and signed the above report, and that the matters set forth in said report are true. : WILLIAM GREEN. Sworn to before me this : 3d day of August, 1888. M.8., Justice of the Peace. § 118. Names of Assessors and Collectors. The Clerk of the Cities of New York, Albany, Hudson, Schenectady and Troy, and the Town Clerks of the several towns, shall yearly, before the first day of October in each year, certify and deliver to the Supervisors of their respective towns, the names of all the Assessors and Collectors in their respective cities and towns, and the same shall be delivered to the Board of Supervisors at their next meeting. 2R. 8S. (8th ed.)1160,§ 1. § 119. To report as to poor supported by towns. It shall be the duty of the Supervisors of every town in those counties where all the poor are not a county charge, to report to the Clerk of the Board of Supervis- ors within fifteen days after the accounts of the Over- seers of the Poor have been settled by the Board of Town Auditors, in each year, an abstract of all such accounts for the preceding year, which shall exhibit the number of paupers that have been relieved or supported in such town the preceding year, specifying the number of county paupers, and of town paupers, the whole expense of such support, and specifying the allowances made to Overseers, Justices, Constables or other officers, and any other items which shall not comprise any part of the actual expense of maintaining the paupers. 3 BR. 8. (8th ed.) 2120, § 76. The said abstracts shall be delivered by the Clerk of the Board of Supervisors to the County Superintendents, to be included by them in their report as aforesaid. d., S71. Report as to Paupers. To the Clerk of the Board of Supervisors of Erie County. The undersigned, Supervisor of the Town of Eden, in County of Erie, respectfully reports : 112 THe Law OF SUPERVISORS. That the whole number of paupers relieved or supported in the Town of Eden, during the year ending Febuary 25, 1888, as shown by the audited accounts of the Overseers of the Poor of said town, was Of which, the number of county paupers was And of town paupers was : Me Gao ae The whole expense of such aan i Sap ae! 3 Paid transportation of such paupers ; Allowances made to Overseers of the Poor Allowances made to Justices of the Peace Allowances made to Constables Allowances made to physicians for meal and attendance Allowances made to keepers ead sadiatawts’ Allowances made to Overseers for si of county paupers . Allowances made to Overseers for bean paupers joe na ARASH Value of labor of paupers supported Amount saved in expense of support by means of labor of paupers, estimated at (And so on including other charges, if any) . I further report that of paupers so relieved or supported were foreigners, lunatics, idiots, mutes, ote The number of paupers being supported at time of auditing Overseer’s accounts was . . males, females, be Sar Mkt The vested poor fund of saidtownis . . $ The amount raised by tax upon said town for relief and support of the poor for the pre- ceding year was . . . ay, tee enn $ I hereby certify that the aboeed is a true abstract of the accounts of the Overseers of the Poor of the Town of Eden, for the year ending February 25, 1888, as shown by the audit of said accounts by the Board of Town Au- ditors. Dated Eden, March 1888. J. W. CARTER, Supervisor Town of Eden. Any Superintendent, Supervisor or Clerk, who shall neglect or refuse to make such reports, abstracts or copies aforesaid, or who shall wilfully make any false report, abstract or copy, shall forfeit one hundred dol- REPORTS TO BE MADE TO SUPERVISORS. 113 lars, to be recovered by the District Attorney of the county, in the name of the people of this state, and to be paid into the county treasury, for the benefit of the poor thereof, etc. 3R. 5. (8th ed.) 2121, part of § 78. The Board of Town Auditors is required to meet for the purpose of auditing and allowing accounts of Over- seers of the Poor annually in each town, on the Tuesday preceding the annual town meeting to be held in each town. Laws 1863, chap. 172,§1; 1 R.S. (8th ed.) 908. This report is required to be made within fifteen days after the accounts of the Overseers of the Poor have been settled by the Board of Town Auditors. 3R. 58. (8th ed.) 2120, § 76. It is the duty of the Supervisor in office at time of such settlement of the Overseer’s accounts to make this report, but in case he should not be re-elected, the duty of making it undoubtedly devolves upon his successor. § 120. As to damages to sheep injured by dogs. If the party injured cannot discover the owner or pos- sessor of the dogs by which such damage was done, or shall fail to recover the value of the sheep killed or injured, against such owner or possessor, he may apply to the Supervisor of the town, and upon producing to him the certificate mentioned in the tenth section [the certificate of the Fence Viewers] made as aforesaid, and his own affidavit that he has not been able to discover such owner or possessor, or that he has failed to recover his damages from such cwner or possessor, the said Su- pervisor shall lay the same before the Board of Supervis- ors of the county, at their next meeting. 3 R. 8S. (8th ed.) 2386, § 12, as amended by Laws 1862, chap. 244, § 7. See post § 130 to § 139 as to proceedings in relation to recovery of damages to sheep injured by dogs. § 121. In relation to Grand Jurors. While, as will be seen further on when we give the law as to the action of the Board of Supervisors in pre- paring grand jury lists, no prevision is made for any individual action of the Supervisor of a town, still in 8 114 THE LAW OF SUPERVISORS. practice each Supervisor prepares a list of names of Grand Jurors, equal to the proportionate share of Grand Jurors that should come from his town, and submits such list to the Board of Supervisors, at their annual meeting, and from such lists the Grand Jury list is compiled by the Board of Supervisors. In preparing such list the Supervisor should be careful to select such persons only as he knows, or has good reason to believe, are possessed of the qualifications by law required of persons to serve as jurors for the trial of issues of fact and are of approved integrity, fair character, sound judgment and well informed. 3 R. 8. (8th ed.) 2766, § 3. Persons exempt by law from serving as jurors for the trial of issues of fact shall not be placed on any list of Grand Jurors, required by the preceding provisions. Jbid., § 4. The list shall contain the christian and surnames, at length, of the persons named therein, their respective places of residence and their several occupations. Ibid., 8 5. Supervisor’s list of Grand Jurors. To the Board of Supervisors of Erie County : I herewith submit a list selected by me of persons resident in the town of Holland possessed of the requisite qualifications to serve as Grand Jurors : Names. Residence. Occupation. John OReilly. | Holland. Merchant. In like manner the balance of the list. JACOB WURST, Supervisor of Town of Holland. REPORTS TO BE MADE TO SUPERVISORS. 115 For mode of selecting Grand Jurors in the County of New York, see Laws 1882, chap. 410, §§ 1634, 1651, and in Kings County, Laws 1858, chap. 322 ; 3 R. S. (8th ed.) 2771. § 122. Asto Town Debts. Whenever a town hasa public debt, consisting of bonds or other evidences of debt, issued on the credit of said town, it shall be the duty of the Supervisor thereof, and he is hereby directed and required, to make a report to the Board of Supervisors of the county, at the next annual session thereof after the passage of this act, and at every annual session thereafter, of the amount of the public debt of his said town. Laws 1870, chap. 552, $1; 1B. S. (8th ed.) 925. The said report shall be in tabular form, specifying the different acts under which the bonds or debts were issued, with rate of interest thereon, the amount unpaid at the time of the election of such Supervisor, and the amount of debt paid at the date of his said report and coming due during his term of office. Ibid., § 2. The report so made to the Board of Supervisors shall be published in the annual report of the proceedings of said Board. Ibid., § 3. It shall also be the duty of such Supervisor, and he is also directed and required, at the expiration of his term of office, at the annual town meeting for the election of town officers, to make and present thereto a duplicate copy of his report ofthe public town debt: so made to the said Board of Supervisors, including and adding thereto the amount of bonds issued, and the amounts and interest paid since the date of said report, up to the day and date of his term of office, duly attested before a Justice of the Peace of his said town, and which said report shall be filed in the Town Clerk’s office of the town, subject to the inspection when required, of any elector thereof. Tbid., § 4. All such bonds and coupons thereof paid, shall be cancelled and burned by the Town Auditors of the town, 116 THe Law or SUPERVISORS. at a meeting thereof, to be held for that purpose within ten days previous to the annual town meeting : and a record thereof shall be filed, signed by the said Board, in the office of the Clerk of said town. IJbid., § 5. Any Supervisor or other officer neglecting or refusing to perform any duty imposed by this act, shall be deemed guilty of a misdemeanor, and shall forfeit, upon convic- tion, the sum of two hundred and fifty dollars for such offence, and be imprisoned not exceeding sixty days. Ibid., § 6. Report under above act. To the Board of Supervisors of Erie County : The undersigned Supervisor of the Town of Brant, in the County of Erie, New York, in compliance with the requirements of Laws 1870, chapter 552, reports : That the amount of the public debt of said Town of Brant, consisting of the bonds of said town, at the last annual town meeting, when I was elected Supervisor, was. wwe ww ee ee e+ $20,000 00 Amount paid at dateof thisreport . . . . 2,000 00 Amount which will become due during my present term of office, viz. : on February 24, WAGG ee OR oe ok $2,000 00 The above bonds were issued and bearing date February 24, 1887, under and pursuant to the provisions of chapter 75, Laws of 1878, in place of bonds theretofore issued, to aid in the construction of the Buffalo and Jamestown railroad and bear interest at six per cent., payable semi- annually at the office of Gallatin National Bank, in the City of New York, at which place the principal of said bonds is also payable. Such bonds were divided into ten series, of $2,000 each and numbered one to ten. Series one became due and payable February 24, 1888, and one series annually there- after until the whole amount becomes due. The amount to be provided for during the ensuing year is REPORTS TO BE MADE TO SUPERVISORS. 117 Interest due February 24, 1889,. . . . . . $540 00 Series No.two . . . . . . . . . . . 2,000 00 Interest due August 24,1889 . . .. . . 48000 Total tobe providedfor . . . . . . . .$8,020 00 Dated Brant, October, 1888. JAMES McINTYRE, Supervisor of Town of Brant. § 123. Bonded indebtedness of towns, etc. New bonds may be issued to retire old ones. The present bonded indebtedness of any village, city, town or county in this state, including interest past due or unpaid, may be paid up or retired by the issue of new bonds for like amounts, by the Board of Trustees, Mayor, or Common Council, Town Board, Board of Supervisors or Supervisor, or Railroad Commissioners, or officer or officers now having in charge, according to law, the pay- ment of interest or principal on bonds herein proposed to be paid or retired respectively of such village, city, town or county ; provided, however, that such new bonds shall be issued only when existing bonds can be retired by thesubstitution therefor of such new bonds, or can be paid up by money realized on the sale of such new bonds, but where the said bonded indebtedness shall become due within two years from the issue of the saidnew bonds; then such new bonds may be issued or sold to provide the money in advance, with which to pay up such exist- ing bonds, when they shall become due and payable ; and provided further, that such new bonds shall bear interest at a rate not exceeding four per cent. per annum, payable semi-annually or quarterly. All existing bonds, taken up by the substitution of such new bonds, or paid under the provisions of this act, and all new bonds and coupons, when paid up as herein provided, shall be imme- diately cancelledas now provided bylaw, and a certificate executed by the officers issuing such new bonds shall be forthwith made and filed by them in the County Clerk’s _office of the proper county, which shall state the amount of existing bonds so cancelled and of new bonds so issued. 118 Tue LAW OF SUPERVISORS. This act shall not be so construed as to authorize the issue of new bonds or to supersede or pay existing bonds which have been adjudged invalid by the final judgment of a competent court. The new bonds so to be issued shall be made payable at any period or periods deemed advisable by the officers issuing the same, not less than one year nor more than forty years from their date; and shall bear date and draw interest from the date of the pay- ment of existing bonds, or the receipt of the money to pay existing bonds ; and an amount not less than two per cent. of the whole amount of said bonds so issued, shall be made payable and shall be paid and retired, each and every year after the issue thereof, andsaid bonds shall be issued in no case at less than their par value. Laws 1886,chap. 316, § 1. Validity of new bonds. The bonds issued under the provisions of this act, when submitted* or sold to retire existing bonds, by any authorized officers of any town, village, city or county, or their successors in office, shall be valid and binding on the town, village, city or county wherein they are issued, and such bonds shall contain a recital that they are issued under the provisions of this act, and such recital shall be conclusive evidence in any court, of the validity of said bonds and the regularity of their issue. Ibid., § 2. New bonds exempt from taxation. All new bonds is- sued by any village, city, town or county in this state, under the provisions of this act, shall be exempt from taxation for town, county, municipal or state purposes, until the period when they are made payable. Jbid., § 3. Annual reports as to bonds. It shall be the duty of the Railroad Commissioners, Supervisors and financial of- ficers of towns, villages, cities and counties, having in charge the money received and collected and respon- sible for the payment of the interest and principal due on bonds issued under this act, and they are hereby re- quired to report annually to the Board of Supervisors of *So in the original. REPORTS TO BE MADE TO SUPERVISORS. 119 counties, the Trustees of villages and the Mayor and Board of Alderman or Common Council of cities, as the case may be, as now required by law, the sum due and payable the succeeding year, both principal and interest, in said bonds. Laws 1886, chap. 316, § 4. Levy of tax to pay interest, etc. It shall be the duty of the Board of Supervisors of counties, the Trustees of villages, and the Board of Aldermen and the Common Councils of cities, and they are hereby required to levy and collect in each year, upon the towns, villages, cities or counties, severally obligated, moneys sufficient to pay such interest when and as it shall fall due, and the prin- cipal of such bonds when and as the same shall become due and payable. Tbid., § 5. Official bonds by Commissioners, etc. Before the said Commissioners or either of them, shall enter upon the discharge of their duties under this act, they shall joint- ly and severally, with two or more sureties, execute to the Supervisor of said town or city, a bond in the penal sum equal to one-fourth the amount to be issued by said town or city under and by virtue of this act, conditioned for the faithful discharge of their duties as Commis- sioners under this act and existing laws, and for the just and honest application by them of all moneys or bonds issued by them, or coming into their hands as such Com- missioners. The sufficiency of said sureties shall be de- termined by the Supervisor of said town or city, or the County Judge of the county wherein said town is situ- ated, or any Justice of the Supreme Court, and shall be endorsed on said bond. The said bond shallimmediately thereafter be deposited with the Supervisor or Super- visors of . said town or city, to be collected by him or his successors in office, for the use and benefit of said town or city, in case the said Commissioners, or either of them, are guilty of such a breach of duty or malfeas- ance in office as to render said bond collectible ; and it is further provided, that any willful misappropriation or 120 Tur Law OF SUPERVISORS. embezzlement, or wrongful conversion of any of said town bonds, or the moneys arising from the same, or the moneys to be raised by a sale thereof, as provided by this act, or of moneys to be raised by tax as aforesaid, to an amount exceeding one thousand dollars, shall be a fel- ony, punishable by imprisonment in the state prison, for a term not exceeding ten years. Laws 1886, chap. 316, § 6. Laws 1881, chap. 522, as amended by Laws 1883, chap- ters 124 and 453, are quite similar in their provisions to the preceding law. 1 R. S. (8th ed.) 959. REPORTS TO OTHERS THAN THE BOARD OF SUPERVISORS. § 124. Lists of corporations for State Comptroller. The Supervisors of each town, ward, city or district in this state for which a Supervisor is elected, shall, on or before the first day of May in each year, make an accurate list of every corporation, joint-stock company and association incorporated by this or any other state or country located or doing business in such town, ward, city or district for which such Supervisor has been elected, and shall forthwith forward the same to the Comptroller of this state, verified by their oath before some magistrate or person authorized to administer oaths, to the effect that such list is full and complete to the best of their knowl- edge, information and belief. Laws 1881, chap. 166, § 1. Forms. The Comptroller of this State shall, on or before the fifteenth day of April in each year, forward to the said Supervisors, suitable forms for making up the said list so required to be sent to him. Jbid., § 2. § 125. Asto monuments on state boundaries—report to State Engineer and Surveyor. The Supervisors and Commissioners of Highways of any and all towns of this state, which may adjoin any of the boundary lines of the state, are hereby charged with the care and preservation of the monuments which have heretofore been placed, or may hereafter be placed, by official action, to mark the said boundary lines. And REPORTS TO BE MADE TO SUPERVISORS. 121 the said Supervisors and Commissioners of Highways are hereby required to enforce the statutes of this state for the preservation of monuments and land marks, so far as they may relate to said boundary monuments, and to prosecute any person who may injure, disturb or remove any of them. Laws 1886, chap. 449, § 1. Annual inspection and report. The said Supervisors and Commissioners of Highways are hereby required annually, in the spring, to make an examination and inspection of the condition of all of said boundary monu- ments upon the state boundary adjoining their respective towns, and to make a detailed report thereof to the State Engineer : their fees for such service shall be a town charge, to be audited upon the presentation of the certifi- ‘cate of said State Engineer and Surveyor, that such report has been filed as a voucher. JIbid., § 2. § 126. Report to town meeting as to suits against his town. In all legal proceedings against towns by name, the first process, and all other proceedings requiring to be served, shall be served on the Supervisor or the town, and when- ever any such suit or proceeding shall be commenced, it shall be the duty of the Supervisor to attend to the de- fence thereof, and to lay before the electors of the towu, at the first town meeting, a full statement of such suit or proceedings, for their direction in regard to the de- fence thereof. 1 R. S. (8th ed.) 912, § 3. §127. Superintendent of Public Instruction may require report. TheState Superintendent of Public Instruction is author- ized to require from the Supervisor, Board of Town Audit- ors, or any officer of a town, a report as to any fact, or any information or account he may deem necessary or desirable in relation to the property or funds and securities belonging to any gospel or school lot or in relation to any moneys in the hands of Overseers of the Poor, under the act of April 27, 1829, being chap. 287, *Laws 1863, chap. 555, title ITI, §§ 21, 19, 20; 2 R.S. (8th ed.) 1279. * See that chapter post, p. 84. 122 THE Law OF SUPERVISORS. § 128. To report unexpended school moneys to County Treas- urer. On the first Tuesday in March in each year, each Su- pervisor shall make a return in writing to the County Treasurer, for the use of the School Commissioners, show- ing the amount of school moneysin his hands not paid out on the orders of Trustees for teachers’ wages, nor drawn by them for library purposes, and the districts to which they stand accredited (and if no such moneys remain in his hands, he shall report that fact): and thereafter he shall not pay out any of said moneys until he. shall have received the certificate of the next apportionment : and the moneys so yeturned by him shall be re-apportioned as hereinbefore directed. Laws 1864, chap. 555, title IV., 84; 2R.8. 1989. Form of report required by above section. To Hon. Loren B. Sessions, County Treasurer of Chau- tauqua County. The undersigned Supervisor of the Town of Pomfret, in the County of Chautauqua, hereby returns as required by section four of title four of chapter 555 of the Laws of 1864, that the amounts of school moneys in his hands not paid out on the orders of Trustees for teachers’ wages, nor drawn by them for library purposes, and the districts to which they stand accredited is as follows : District Nol. . . . 1... - 2. . . . $100 00 District No2 . 2. 2... we eB 00 District No3. . 2. 2. 2... we. BO 00 Totalinmy hands. . . . . . ., . . . $995 00 Dated March 7th, 1888. J. K., Supervisor. § 129. To report school moneys to Town Clerk. Within fifteen days after the determination of his office, to make out a just and true account of all school moneys theretofore received by him and of all disbursements thereof, and to deliver the same to the Town Clerk, to be REPORTS TO BE MADE TO SUPERVISORS. 123 filed and recorded, and to notify his successor in office of such rendition and filing. Laws 1864, chap. 555, title IV., §6, 7 6; 2 B.S. (8th ed.) 1283. This section is repeated, being for convenience of refer- ence. See ante, § 81, for form of report. 124 § 130. § 181. § 132. § 133. § 134. $ 135. § 136. 3 187. § 138, § 139. § 140. § 141. § 142. § 148. § 144. § 145. § 146. § 147. § 148. § 149. § 150. § 151. § 152. § 153. § 154. § 155. § 156, § 157. § 158. g 159, § 160. 8 161. § 162. THE Law OF SUPERVISORS. CHAPTER VII. MISCELLANEOUS DUTIES OF SUPERVISOR. Duties-in relation to dogs, under revised statutes. Duties in Richmond, Rockland and Westchester Counties. Duties in Westchester County. Duties in Putnam County. Duties in Saratoga County. Duties in Cortland County. Duties in Queens County. Duties in Columbia County. Duties in Ontario County. Duties in City and town of Lockport, Niagara County. MISCELLANEOUS DUTIES OF SUPERVISOR. As to surveys of his town. Penalty for neglecting to do so. Survey of non-resident lands. Concerning strays. Concerning surplus moneys onsale of property for taxes. Binding out indigent and orphan children. Investigating as to corrupt use of town funds. Payment of bonded indebtedn ess of towns. Payment of town bonds given in aid of railroads. Sale of stock, etc., in insolvent railroad companies. May fill vacancy in office of Town Auditor. Under General Drainage Law. May appoint Inspectors of vinegar. To attend Board of Supervisors. To sue for penalties. When to pay judgments. Supplementary proceedings to collect taxes. As to filing bonds, etc. Stone-crusher, when he may purchase for town. Notice of election to be given. Custody of machines. Tax to pay for same. Raising tax to purchase stone to operate machine. § 130. Dogs—his duties in relation to. Tax on dogs except in New York. In all the counties of the state, except the City and the County of New York, Duties as To Dogs. 125 there shall be annually levied and collected the following tax upon dogs: Upon every bitch owned or harbored by any one or more persons, or by any family, three dollars; upon every additional bitch owned or harbored by the same person or persons or family, five. dollars ; upon every dog other than a bitch, fifty cents, and upon every additional dog owned, two dollars. 3 R. 8S. (8th ed.) 2384, § 1, as amended by Laws 1862, chap. 244, $1. Owner to deliver description of dog. The owner or possessor of every dog liable to the above tax, shall, whenever required by any Assessor, deliver to him a de- scription in writing, of every such dog owned or possessed by him. For every neglect or refusal so to do, and for every false statement made in any description so fur- nished, he shall forfeit five dollars, to be recovered by the Supervisor of the town. 3 R. S. (8th ed.) 2384, § 3, as amended by Laws 1862, chap. 244, § 2. Assessment and collection of tax. The Assessors of every town or city or ward of a city, except the City of New York, shall annex to the assessment roll of real and personal estate therein, made by them annually, the name of each and every person or persons liable to the tax imposed hereby, together with the number of bitches and dogs for which such person or persons is or are assessed, and return the same to the Supervisor of their respective towns, cities, or wards of cities, to be laid by said Supervisor before the Boara of Supervisors, to be by them collected in the same manner as other state and county and town taxes are collected. And if any person duly assessed shall refuse or neglect to pay the tax so assessed within five days of the demand thereof, it shall be lawful for any person, and it shall be the duty of the collector, to kill the dog so taxed. 3R.5. (8th ed.) 2384, § 4, as amended by Laws 1862, chap. 244, § 3. See also, 3B. S. (8th ed.) 2385, § 6. Collectors’ fees. Each Collector shall be allowed to 126 THe LAW OF SUPERVISORS. retain a commission of ten dollars on every hundred dollars collected, and at that rate upon all sums collected by him pursuant to the direction of the Supervisors ; and said Collector shall also, on filing his affidavit of the fact with the County Treasurer, be entitled to retain as a further compensation from the moneys collected by him, the sum of one dollar for every dog or bitch killed by him, under the provisions of the second section of this act. 3 R. 8. (8th ed.) 2385, § 7, as amended by Laws 1862, chap. 244, § 4. Tax, how applied. The moneys so collected and paid to any County Treasurer, shall constitute a fund for the satisfying such damages as may arise in any year from dogs killing or injuring sheep in such county, and the residue for the use of the poor of the county. 3R.S. (8th ed.) 2385, § 8. Liability of owners of dogs for injuries to sheep. The owner or possessor of any dog that shall kill or wound any sheep or lamb, shall be liable for the value of such sheep or lamb to the owner thereof, without proving notice to the owner or possessor of such dog, or knowledge by him, that his dog was mischievous or disposed to kill sheep. Ibid., § 9. A joint action does not lie against separate owners of dogs by whom the sheep of a third person have been worried and killed. Van Steenburgh v. Tobias, 17 Wend. 562. The owner of the sheep killed may resort to his action without applying to the Fence Viewers to inquire into the matter. Fish v. Skut, 21 Barb. 333. The statute making the owner of a dog which shall kill or wound sheep, liable, without notice that he was mis- chievous, has no application where the sheep were only chased and worried. In such case there must be proof of the scienter to render the defendant liable. Auchmuty v. Ham, 1 Denio, 495 ; Hinckley v. Emerson, 4 Cow. 351 ; Osincup v. Nichols, 49 Barb. 145. In order to maintain an action under this statute, where Duties as To Doas. 127 the defendant denies that he is the owner of the dog, the plaintiff must prove that the defendant had the possession or suffered the dog to remain about his house for twenty days previous to the injury to the sheep. Strang vy. Newlin, 38 How. P. 364. Duty of Fence Viewers. The owner of any sheep or lambs that may be killed or injured by any dog, may apply to any two Fence Viewers of the town, or Assessors of the city or of the ward of the city, who shall inquire into the matter, and view the sheep injured or killed, and may examine witnesses in relation thereto, for which purpose either of them shall have power to administer oaths. If they are satisfied that the same were killed or hurt only by dogs, and in no other way, they shall certify such fact, the number of the sheep killed or hurt, and the amount of the damages sustained thereby by the owner, together with the value of the sheep hurt orkilled. 3 R. ‘S. (8th ed.) 2385, § 10, as amended by Laws 1862, chap. 944, § 6. Certificate of Fence Viewers. ERIE CouNTY, Se Town of Tonawanda. ; Whereas Christoph Schwinger, of the Town of Tona- wanda, having applied to us, two Fence Viewers of said town, to appraise the value of certain sheep, alleged to have been killed by dogs, and the amount of damages sustained by him, pursuant to the statute in such case made and provided, and having this day inquired into the matter and viewed the sheep killed, and examined wit- nesses in relation thereto, we do hereby find and certify, that the said sheep were killed by dogs only, and in no other manner, and that there were five sheep killed of the value of three dollars and fifty cents each, amounting to seventeen dollars and fifty cents, and that the owner, Christoph Schwinger, has sustained damages to that sum. In witness whereof we have hereunto set our hands this twentieth day of June, A. D. ara C. D. t Fence Viewers. 128 Tue LAW OF SUPERVISORS. Effect of such certificate. The said certificate shall be presumptive evidence of the facts therein contained, in any suit that may be brought by the party injured against the owner or possessor of any dog, if it shall appear on the trial of such suit that notice in writing of the time and place of such view shall have been served at least twenty-four hours before, on the said owner or possessor, either personally or by leaving at his dwelling-house with a person who usually dwells therein, and who shall have arrived at the age of sixteen years, was given to the owner of the dog, of the intended application. 38 R. S. (8th ed.) 2885, § 11, as amended by Laws 1862, chap. 244, § 6. Application to Supervisor for damages. If the party injured cannot discover the owner or possessor of the dogs by which such damage was done, or shall fail to re- cover the value of the sheep killed or injured, against such owner or possessor, he may apply to the Supervisor of the town, and upon producing to him the certificate mentioned in the tenth section, made as aforesaid, and his own affidavit that he has not been able to discover such owner or possessor, or that he has failed to recover his damages from such owner or possessor, the said Su- pervisor shall lay the same before the Board of Super- visors of the county at their next meeting. 3 R. S. (8th ed.) 2386, § 12, as amended by Laws 1862, chap. 244, § 7. Payment of damages when ordered. The Board of Su- pervisors shall issue their order on the County Treasurer, for the amount of the damages appearing by the certificate of the Fence Viewers, to have been sustained by the owner of any sheep killed or injured by dogs, where they shall be satisfied that the owner or possessor of such dogs cannot be discovered, or that the party injured has failed to recover such damages of such owner or possessor, which shall be paid by the County Treasurer from the fund to be raised by said tax, and from no other moneys. 3R8.S. (8th ed.) 2386, § 13, as amended by Laws 1862, chap. 244. f Duties as To Doas. 129 If damages recovered subsequently to be refunded. If after receiving the amount of such damages from the County Treasurer, the owner of the sheep so killed or in- jured shall recover the value thereof, or any part of such value, from the owner or possessor of any dog, he shall refund and repay to the County Treasurer the sumso re- ceived from him, for which it shall be the duty of the Supervisor of the town to bring an action against such owner in case of his refusal, in the name of the county Treasurer, and to pay into the county treasury the sum so collected. 3 R. 5S. (8th ed.) 2386, § 14. Owner to kill dog after notice—penalty for neglect. The owner or possessor of every dog, to whom notice shall be given of any injury done by his dog to any sheep, or of his dog having chased or worried any sheep, shall within forty-eight hours after such notice, cause such dog to be killed ; for every neglect soto do, he shall for- feit two dollars and fifty cents, and the further sum of one dollar and twenty-five cents for every forty-eight hours thereafter, until such dog shall be killed, unless it shall satisfactorily appear to the court before which a suit shall be brought for the recovery of the said penal- ties, that it was not in the power of such owner or pos- sessor to kill such dog. Ibid., § 16. When Justice may order dog to be killed. If any dog shall attack any person peaceably travelling on any high- way, or any horse, in a carriage, or upon which any person shall be mounted, and complaint thereof be made to a Justice of the Peace, such Justice shall inquire into the complaint, and if satisfied of its truth, and that such dog is dangerous, he shall order the owner or possessor of such dog to kill him immediately. Ibid., § 17. Penalty if owner neglects to kill him. The owner or possessor of any dog, who shall refuse or neglect to kill him within forty-eight hours after having received such order, shall forfeit the sum of two dollars and fifty-cents and the further sum of one dollar and twenty-five cents 9 130 THE Law OF SUPERVISORS. for every forty-eight hours thereafter, until such dog be killed. 3R. S. (8th ed.) 2387, § 18. Supervisor tu sue for penalties. Upon complaint being made to any Supervisor of a town, of any penalties imposed by this title having been incurred, he shall com- mence suit for the recovery thereof, in his name of office and prosecute the same with due diligence, and the moneys received shall be by him paid to the County Treasurer, to be added to the fund hereinbefore provided for the satisfaction of damages sustained by owners of sheep. Ibid.,§ 19. All moneys received under this section should be paid to the County Treasurer, who is custodian of all funds arising under foregoing statutory provisions. § 131. In relation to dogs in Richmond, Rockland and West- chester Counties. There shall be annually levied and collected, in the Counties of Richmond, Rockland and Westchester, the following tax on dogs: Upon every dog or bitch of six months old or upwards, kept by any one person or family, fifty cents, and for every additional dog or bitch, kept by the same person or family, the same tax as is provided to be levied and collected by part first, chapter twenty, title seventeen, and section one of the Revised Statutes ; and the revenue so collected in the counties of Richmond, Rock- land and Westchester shall be applied in the same man- ner as directed by the said title of the Revised Statutes. Laws 1832, chap. 278. See page 124, supra. § 132. Dogs in Westchester County. CuHap. 146. An act to amend the several acts relating to taxes upon dogs, so far as relates to the County of Westchester, passed April 17, 15438. Tax, when to be levied and collected. § 1. The taxes hereafter to be levied upon dogs in the County of West- chester, shall be levied and collected at the time and in the manner directed by the provisions of title seventeen DutiEs as To Docs. 131 of chapter twenty of part first of the second edition of the Revised Statutes. See supra, page 124. To be paid to the Supervisors. § 2. The Collector of each town to whom the list that is now required to be made out by the Assessors, is delivered, shall pay over the taxes so collected to the Supervisor of the town, which shall constitute a town fund for satisfying the damages arising in any year from dogs killing or injuring sheep in such town ; and if there be any residue after satisfy- ing such damages it shall, after the expiration of one year, be applied to such purposes for the benefit of the town as a majority of the electors at their annual town meet- ing may direct. Supervisor's duty. § 3. The Supervisor of the town shall, upon the application of any person being a resident and having sheep killed or injured by dogs in said town, pay over the amount of damage appearing by the certi- ficate of the Fence Viewers, when he shall be satisfied by the affidavit of the owner of the sheep, that the owner or possessor of the dogs cannot be discovered. Collector to give bond. § 4. The Collector shall execute and deliver to the Supervisor a bond in double the amount of the taxes to be collected, conditioned for the faithful performance of his duty. k Supervisor to account. § 5. The Supervisor is hereby required to account to the Town Auditors for moneys received and disbursed by him in. pursuance of this act. Repeal. §6. The provisions of any law of this state in- consistent with the provisions of this act, are hereby repealed. § 133. Dogs in Putnam County. Cuap. 315. An act imposing a tax on dogs in the County of Putnam. Passed April 18, 1838. 132 THe LAw OF SUPERVISORS. 81. The provisions of the act entitled “ An act impos- ing a tax on dogs in the Counties of Richmond, Rock- land and Westchester,” passed April 28, 1832, and the act amending the same passed April 20, 1835,* are hereby extended to the County of Putnam. 89. This act shall take effect as a law, whenever the Board of Supervisors of the County of Putnam shall, vy the votes of a majority of the members elected to the said Board, determine that such tax ought to be levied, and not before. $134. Dogs in Saratoga County. CHapP. 200. An act to protect sheep husbandry in the County of Sar- atoga, andtoimposeatax ondogs. Passed March 25, 1865. *The following is the act referred to. It will be seen by the notes sub- joined to it, that it has been repealed as to the counties for which it was originally enacted. Whether it has been adopted by the Board of Su- pervisors of Putnam County the author is not advised. Cuap. 117. An act to amend the several acts relating to the taxes upon dogs. Passed April 20, 1835. §1. The provisions of the act entitled ‘“‘ An act imposing a tax on dogs in the Counties of Richmond, Rockland and Westchester,” passed April 25, 1832, are hereby extended to the Counties of Columbia,* Dutch- ess,* Alleganyt and Cattaraugus.* How to be levied. § 2. The taxes hereafter to be levied upon dogs shall be levied. and collected at the time and in the manner directed in the Revised Statutes, for the assessment and collection of taxes imposed by the Supervisors of the County. How to be applied. $8. All moneys collected as taxes upon dogs, shall constitute a fund for satisfying damages done by dogs in killing or in- juring sheep, according to the provisions of the Revised Statutes; and if there be any residue, after satisfying such damages, it shall, after the expiration of one year from the time of collection, be applied to the sup- port of the poor of the town where the same shall have been collected, or to such other purpose as the inhabitants of the town shall, at their annual town meeting direct. Repeal. § 4. The provisions of any law of this state inconsistent with the provisions of this act, are hereby repealed. *Repealed as to Counties of Dutchess, Cattaraugus and Columbia, by chapter 82, Laws of 1839. tThe act entitled “An act to amend the several acts relating to the taxes upon dogs,” passed April 20, 1835, so far as it relates to the Count 5 y of Allegany, is hereb’ repealed. Laws 1849, chap. 188. iti ¥ Duties as to Dogs. 133 Dogs to be registered, wear collars, etc. § 1. It shall be the duty of the owner of any dog or dogs in the County of Saratoga, who shall be a resident of said counties* on or before the thirtieth day of June in each year and every year, to cause the dog or dogs to be described, reg- istered and numbered in the Town Clerk’s office of the town in which the owner keeps the dog ; and shall cause it to wear around its neck a collar distinctly marked with the owner’s nameand registered number ; and shall pay to the Supervisor of such town a license fee of two dollars for each male, and three dollars for each female dog so owned or kept. Licensing owner of dog. § 2. It shall be the duty of the Town Clerk and Supervisor, when any person shall cause any dog to be described, registered and numbered, and shall pay the license fee as aforesaid, to give the owner a license to the effect that the dog has been de- scribed, registered and numbered, and is permitted to wear the collar as aforesaid, and that such owner is exempt from any state or county or town tax, upon any dog so registered and licensed, for the year ending on the thir- tieth day of April next ensuing. Penalty for neglect to register and obtain license. § 3. The owner of every dog in the County of Saratoga, who shall neglect or refuse to cause his dog or dogs to be de- scribed and registered and numbered, and pay the license fee, as above provided, shall. forfeit and pay to the Super- visor of the town wherever the animal is kept, a penalty of five dollars for every dog so kept unregistered and unlicensed, as aforesaid, to be sued for and recovered in the name of the Supervisor, for the use of the owners of sheep injured or destroyed by dogs. But in any action commenced to recover said penalty, the defendant may, before trial, on payment of costs accrued, and on regis- tration and payment of license fees as herein provided, settle and discontinue such action, and constitute a fund *So in the original. 134 Tue Law oF SUPERVISORS. to pay the reward provided in section four of this act. When dogs may be killed, etc. §4. Any dog found run- ning at large, or going about with his master, without being licensed and wearing the collar as aforesaid, may be killed by any person over twenty-one years of age; and it shall be the duty of all Policemen and Constables, to kill all unlicensed dogs running at large in said coun- ties,* and on making and filing an affidavit of the killing of said unlicensed dog or dogs, with the Town Clerk, the Board of Town Auditors, at their next annual meeting, if they deem the proof sufficient, shall direct a reward of one dollar to be paid by the Supervisor to the person who may kill any dog under this section. But such affidavit of such killing of dog or dogs, shall be made and presented to the Town Clerk within ten days after such killing. Action to be taken when sheep are killed. § 5. When- ever any person shall have any sheep killed or injured by dogs in said counties* he shall immediately apply to any Justice of the Peace of the town where such dam- ages were done, to ascertain and appraise such damages ; and such justice shall inquire into the matter and exam- ine witness in relation thereto, and if he is satisfied that the sheep were killed or injured by dogs, and in no other manner, he shall make and signa certificate to that effect, stating the amount of damage, together with his fees thereon. Action on such certificate. § 6. The certificate thus made shall be laid before the Board of Town Auditors at their next annual meeting to audit town accounts, and if the Board is satisfied that the amount of damages is just and fair, and that the owner of the sheep so killed or injured, has not been able to recover or collect the amount from the owner of the dog or dogs, they shall give the owner of the sheep an order on the Supervisor, for the amount stated on such certificate. The said *So in original. Duties as. To Dogs. 185 Board of Town Auditors may demand further proof of the killing of said sheep by dogs, and the amount of dam- ages to be paid therefor. Supervisors action on the premises. § 7. Each Super- visor in the several towns shall demand and _ receive the license fees from each and every person to whom any license shall be given under the foregoing provisions; and all penalities and fines which shall come into his hands as aforesaid, and shall report the same together with the amount paid out by him for killing unlicensed dogs, as herein provided, at the next annual meeting of the Board of Town Officers to audit town accounts, and shall pay out the moneys only on the order of such Town Auditors for the claims for injury to sheep, and for said rewards as aforesaid. If the damages in the aggregate, as certified and ordered to be paid by the Supervisor, shall exceed the amount received for licenses and penalties after payment of said rewards in any year, the Supervisor is hereby directed to pay the same pro rata to all whose damages have been certified and allowed. If there is any surplus over and above paying all claims, it shall be the duty of the Supervisor to apply the same on the claims of the next or any subsequent year. The said Board of Town Auditors may, by resolution, appropriate the whole or any portion of said surplus, to the poor fund of said town or county. Supervisor to give bond. § 8. Before any Supervisor shall receive any money under the foregoing provisions, he shall execute and deliver to the Board of Town Audit- ors, to be filed with the Town Clerk, a bond in such penalty and with such sureties as they, or a majority thereof, shall approve conditional for the safe keeping and faithful application of the moneys which shall come into his hands under this act. Who are deemed owners of dogs. § 9. In an action to recover the penalty herein provided, every person shall be deemed the owner, within the meaning of this act, 136 Tue Law OF SUPERVISORS. who harbors or keeps a dog or dogs on or about his premises for twenty days next preceding the commence- ment of said action. Went into effect. § 10. This act shall take effect immediately. § 135. Dogs in County of Cortland. CHapP. 314. An act to amend section two, chapter one hundred and ninety-seven of the Laws of eighteen hundred and sixty- four, in relation to tax on dogs, so far as the same relates to the County of Cortland. Passed April 6, 1865. §1. The Electors of the several towns in the County of Cortland may, at their annual town meeting, by resolu- tion, add the money, or any portion thereof arising from the tax on dogs and not expended, according to the pro- visions of section two, chapter one hundred and ninety seven of the Laws of eighteen hundred and sixty-four, in relation to tax on dogs, to the local school funds of such town, to be loaned by the Supervisor on bond and mort- gage or otber good security as he may deem best; and the interest arising therefrom to be expended in the sup- port of Common Schools, in the same manner and under the same restrictions as the interest arising from the sale of gospel and school lots is now expended. §2. This act shall take effect imm: diately. § 136. Dogs in the County of Queens. Cap. 55. An act relative to levying a tax on dogs in the County of Queens. Passed April 11, 1845. § 1. There shall be annually levied and collected in the County of Queens the following tax on dogs : Upon every dog of three months old or unwards, other than bitches, kept by any one person or family, twenty-five cents ; upon every two dogs kept in like manner, seventy-five cents, and upon every additonal dog more than two, and upon all bitches kept by the same person or family, the same tax asis provided to be levied and collected by Duties as TO Dogs. 187 section 1, title 17, chap. 20, of the first part of the Revised Statutes, and the same to be applied as provided for in the said statute. See supra, page 124. CuHap. 191. An act in relation to the tax on dogs in Queens County. Passed April 6, 1848. Money to be paid to Supervisor. § 1. The sums of money levied and collected in the County of Queens as a tax on dogs, pursuant to chapter fifty-five of the Laws of eighteen hundred and forty-five, shall be paid over by each of the several Collectors tothe Supervisor of their re- spective towns, instead of the County Treasurer, as now provided by law. How applied. § 2. The money so collected and paid to any Supervisor, shall constitute afund for the satisfy- ing such damages as may arise in any year from dogs killing or injuring sheep in the town in which such money shall be collected, and the residue (if any) for the use of the poor of such town. Supervisor's duty in relation thereto. § 3. All the pro- visions of law in relation t othe ascertainment, certificate and application for damages, so far as the same are not inconsistent with this act, shall apply thereto ; but the Supervisor to whom any application for damagesis made, shall, upon the presentation of the certificate required by law, and if he shall be satisfied that the owner or possessor of the dog by which any sheep or lamb shall be injured or killed, cannot be discovered, or that the party injured has failed to recover such damages of such owner or possessor, pay to the applicant the amount of the dam- ages appearing by the certificate of the Fence Viewers, out of the fund constituted by the second section of this act, and no other. § 4. This act shall take effect immediately. §137. Dogs in Columbia County. Cuap. 595. An act to protect sheep husbandry in the County of 138 THE LAW OF SUPERVISORS. Columbia, and to impose a tax on dogs, passed April 16, 1866. The provisions of section one, chapter two hundred and forty-four of the Laws of eighteen hundred and sixty-two, entitled ‘‘ An act to provide for taxing dogs, and for the collection of such tax, and to create a fund to pay for injuries upon sheep by dogs ” shall apply and extend to the County of Columbia. The section above referred to amended the Revised Statutes and is the first paragraph in § 130 of this chapter. § 138. Dogs in Ontario County. Cuap. 197. An act to amend the several acts relating to taxes up- on dogs, so far as relates to the County of Ontario, and providing for the extention of the provisions thereof to the several counties of the state, by resolution of the re- spective Boards of Supervisors. Passed April 15, 1864. Tax on dogs. §1. The taxes hereafter to be levied upon dogs in the County of Ontario, shall be levied and collected at the time and in the manner directed by sec- tions one and two of chapter two hundred and forty-four; of the laws of eighteen hundred sixty-two. [The two sections referred to amended the Revised Statutes and are the first two paragraphs of the first sec- tion of this chapter. ] Application of proceeds of tax by Supervisor. § 2 The Collector of each town shall pay over the taxes so collect- ed to the Supervisor of the town, and the moneys so collected and paid over shall in each town constitute a town fund for paying the damages arising in said town, from dogs killing or injuring sheep ; and such moneys, or the balance thereof, which shall remain in the hands of the Supervisor of any town for the period of one year, may by a vote of the majority of the electors of any such town at any town meeting, be appropriated for the pur- pose of building and repairing roads and bridges, or for the payment of the contingent expenses of such town. Duties as To Doas. 139 Duty and powers of FenceViewers. § 3. The owner of owners of any sheep or lambs that may be killed or in- jured by dogs, may apply to any two Fence Viewers of the town, who shall inquire into the matter and examine witnesses in relation thereto, for which purpose either of them shall have power to administer oaths, and if they shall be satisfied that the same were killed by dogs, and in no other way, they shall certify such fact, the number of such sheep killed and the number injured, the value of such sheep killed or injured immediately pre- vious to such killing or injury, together with the value of the sheep after being so killed or injured, together with the amount of their fees. Duties of Town Auditors. §4. Such certificate shall be presented to the Board of Town Auditors at their annu- al meeting for auditing town accounts, who shall have the same power in auditing or allowing the sameas in regard to town accounts, and if such Board shall be sat- isfied by the oath of the person claiming such damages that such claimant has not been able to discover the owner or possessor of the dog or dogs by which such damage was done, or that he has failed to recover his damages of such owner or possessor, they shall give an order on the Supervisor of the town for the amount which they shall allow, who shall pay such order out of the funds arising from the provisions of this act. Deficiency to be raised by tax. § 5. Whenever tne amount of the order or orders for damages, given by the Town Auditors to the owner or owners of sheep killed or injured by dogs, shall exceed the amount of the dog fund in the hands of the Supervisor of such town, it shall be lawful for the Board of Supervisors to add to the accounts of said town, the amount of such order or orders then due and unpaid, but such sum shall in no case exceed the amount theretofore received into the dog fund of said town, and diverted therefrom for the pur- pose of building and repairing roads and bridges, or for 140 THe LAW OF SUPERVISORS. the payment of contingent expenses of such town, for the three vears next preceding the date of such order or orders. [This section was inserted by Laws 1878, chap. 228, and the numbering of the following sections was changed from 5, 6 and 7, to 6, 7 and 8 by same act. ] When owner shall refund amount received—Supervisor to sue. § 6. If after receiving the amount of such dam- ages from the Supervisor, the owner of the sheep so killed or hurt, shall receive or recover the value thereof from the owner or possessor of the dog or dogs doing said damage, heshall refund and repay to the Super- visor the sum so recovered, for which it shall be the duty of the Supervisor of the town to bring an action against such person, in case of his refusal, in his name of office, which sum when so received and recovered shall be re- turned to said dog fund. Audit of accounts. § 7. The Supervisor is hereby required to account to the Town Auditors for moneys received and disbursed by him in pursuance of this act. This act may be extended to other counties. § 8. When- ever the Board of Supervisors of any county of this state shall, by resolution, declare that the provisions of this act shall be extended and made applicable to said county, the provisions of this act shall thereafter be applicable to such county. § 139. Dogs in City and Town of Lockport in Niagara County Cuap. 52. , An act to amend theseveral acts relating to taxes upon dogs, so far as relates to the city and town of Lockport, in.the County of Niagara, and making the funds de- rived from such tax in said city and town a common fund to pay for injures upon sheep, occasioned by dogs, in said city and county collectively. Passed Febuary 23, 1871. Tax on dogs, how collected. § 1. Thetaxes hereafter to be levied upon dogs in the City of Lockport, and in the Duties as To Doas. 141 Town of Lockport, in the County of Niagara, shall be of the same amount, and shall be levied and collected a the time and in the manner directed by sections one and two of chapter two hundred and forty-four of the laws of eighteen hundred and sixty-two. [The two sections referred to amended the Revised Statutes and are the first two paragraphs of the first section (§ 130) of this chapter. ] Tax to be paid to Supervisor, how applied. § 2. The Tax Receiver of said City of Lockport and the Collector of said Town of Lockport, shall pay over the taxes so collected on dogs to the Supervisor of the Town of Lock- port, and the moneys so collected and paid over shall constitute a common fund for paying the damages owing in the said town and city collectively, from dogs killing or injuring sheep, and such moneys, or the balance thereof which shall remain in the hands of the Supervisor of the Town of Lockport, for a period of two years shall be paid by said Supervisor to the County Treasurer of Niagara County for the support of the poor of said county, so long as the poor’ of said county shall continue to be supported by the county at: large. Duties of Fence Viewers. § 3. The owner or owners of any sheep or lambs in said city or town, that may be killed or injured by dogs, may apply to any two Fence Viewers of the Town or City of Lockport, who shall inquire into the matter and examine witnesses in rela- tion thereto, for which purpose either of them shall have power to administer oaths, and if they shall be satisfied that the same were killed by dogs, and in no other way, they shall certify such fact, the number of such sheep killed and the number injured, the value of such sheep killed or injured immediately previous to such killing or injury, together with the value of the sheep after being so killed or injured, together with the amount of their fees. Such certificates audited and paid. §4. Such certif- icate shall be presented to the Board of Town Auditors 142 THE LAW OF SUPERVISORS. of the said Town of Lockport, at their annual meeting for auditing town accounts, who shall have the same power in auditing and allowing the same as in regard to town accounts of said Town of Lockport, and if such Board shall be satisfied by the oath of the person claiming such damage, that such claimant has been unable to discover the owner or possessor of the dog or dogs by which such damage was done, or that he has failed to recover his damages of such owner or possessor, they shall give an order on the Supervisor of the said Town of Lockport, for the amount which they shall allow, who shall pay such order out of the funds arising from the provisions of this act. Supervisors duties. § 5. If after receiving the amount of such damages from said Supervisor, the owner of the sheep so killed or injured, shall receive or recover the value thereof from the owner or possessor of the dog or dogs doing said damage, he shall refund or pay to the said Supervisor the sum so received, for which it shall be the duty of the said Supervisor of the Town of Lockport to bring an action against such person, in case of his refusal to refund and repay the sum so received, in his name of office; which sum, when so received or recovered, shall be returned to said dog fund. Supervisor to account to Town Board and report. § 6. The Supervisor of the Town of Lockport is hereby required to account to the Town Auditors of the said Town of Lockport, for all moneys received and disbursed by him, in pursuance of this act ; and said Supervisor is also hereby required to make a full report of all the mon- eys received and disbursed by him, in pursuance of this act, annually to the Common Council of the City of Lockport, at the first meeting of said Common Council after the first day of January in each year, and to the Board of Supervisors of the County of Niagara at their annual town meeting in each and every year. Duties AS TO SURVEYS AND STRAYS. 1438 MISCELLANEOUS DUTIES OF SUPERVISOR. § 140. When to cause survey to be made of his town. Whenever the Supervisor of any town shall be required by the Surveyor-general to cause a survey to be made of the bounds of this town, it shall be the duty of such Su- pervisor, within sixty days thereafter, to cause such sur- vey to be made, and to transmit by mail or otherwise, a map and description thereof to the Surveyor-general. The expense of such survey and map shall be defrayed by the several towns whose bounds either wholly or in part shall be described thereby : such expense to be apportioned by the Board of Supervisors of the town. 1.8. (8th ed.) 899, § 9. § 141. Penalty for neglecting so to do. If any Supervisor shall refuse or neglect to perform the duties enjoined in the last preceding section, he shall forfeit the sum of fifty dollars. 1 R. 8. (8th ed.) 899, § 10. § 142. Survey of non-resident lands. ‘Whenever it shall be deemed necessary by the Assessors of any town, to have anactual survey made, to ascertain the quantity of any lot or tract of non-resident lands which is divided by the town line, they shall notify the Supervisor, who shall cause the necessary surveys to be made at the expense of the town. 2 R. 8. (8th ed.) 1098, § 14. § 143. His duties concerning strays. Provision is made by the Revised Statutes for the sale of unclaimed or redeemed strays. 1 R. 8. (8th ed.) 901. If the owner shall not appear and demand the residue of such moneys within one year after the sale, he shall be forever precluded from recovering any part of such moneys ; and the aforesaid residue shall be paid to the Supervisor of such town, for the use of the town ; and his receipt shall be a legal discharge tothe keeper of such strays. 1R. S. (8th ed.) 902, § 27. 144 Tore Law oF SUPERVISORS. If the person who shall have sold such strays, shall not within thirty days after the expiration of the year, pay such residuary moneys to the Supervisor of the town, he shall forfeit to the town double the sum so remaining in his hands, together with the amount of such residuary moneys. 1R8. 5S. (8th ed.) 902, § 28. § 144. As to surplus moneys on sale of property for taxes. If the property distrained shall be sold for more than the amount of the tax, the surplus shall be returned to the person in whose possession such property was, when the distress was made, if no claim be made to such sur- plus by any other person. If any other person shall claim such surplus,on the ground that the property sold belonged to him, and such claim be admitted by the person for whose tax the same was distrained, the surplus shall be paid to such owner ; but if such claim be contested by the person for whose tax the property was distrained, the surplus moneys shall be paid over by the Collector to the Supervisor of the town, who shall retain the same until the rights of the parties shall be determined by due course oflaw. 2R.S. (8th ed.) 1117, § 4. § 145. In relation to binding out indigent children. Incase of the death of the father of any indigent child, or in case the father shall have abandoned his family or neglected to provide for them, the mother shalk be the guardian of said child for the purpose of surrendering the said child to the care and custody of said society [“‘any incorporated orphan asylum or institution, or home for indigent children.” See § 1], and in case of the death of both parents, the Mayor of the city or the Su- pervisor of the town within which the asylum or insti- tute may be located, shall be, ex officio, the guardian of said child for the purpose of enabling said Trustees, Man- agers or Directors to bind out such child. Laws 1870, chap. 481, § 2. § 146. Duties on investigation as to corrupt use of town moneys. If twenty-five freeholders in any town or incorporated village in this state shall present to any Justice of the Su- DutTigs as TO CORRUPT USE OF MONEYS. 145 preme Court having jurisdiction therein, an affidavit sub- scribed and sworn to by themselves, setting forth that they are freeholders and have paid taxes on real estate within one year and that they have cause to believe that the moneys of such town or incorporated village are being unlawfully or corruptly expended, it shall be the duty of such Justice, upon ten days notice to the Supervisor or Supervisors, where there are more than one and the par- ticular disbursing officer, if any, of such town, making the expenditure, or the Trustee and Treasurer of such incor- porated village, to make summary investigation into the financial affairs of such town or incorporated village, as the case may be, and the accounts of such disbursing officers or Treasurers, as the case may be, and at his discre- tion he may appoint an expert or experts to make such investigation, and may cause the results thereof to be published in such manner as he may deem proper. It will be the duty of the Supervisor or the Supervisors and disbursing officer of such town, or the Trustees and Treasurer of such incorporated village, as the case may be, to obey all ordersof such Justice, directed to them, for facilitating such investigation, and any refusal or failure by said Supervisor or Supervisors or Trustees to obey such orders may be punished as for contempt; the cost in- curred in such investigation shall be taxed by said Jus- tice, and paid upon his order by such Supervisor or Supervisors, or Trustees, as the case may be, whose ex- penditures shall be thus investigated, when the facts charged in such affidavit shall be substantially proved in such investigation and by the freeholders making such affidavit, when the facts charged therein shall not be proved by suchinvestigation. Laws 1879, chap. 307, § 1; 2B. S. (8th ed.) 935. Restraining unlawful expenditures. Upon the said Justice becoming satisfied that any of the moneys of such town or incorporated village are being unlawfully or cor- ruptly expended or being appropriated to purposes to which they are not properly applicable or are improvidently 10 146 THE Law OF SUPERVISORS. squandered or wasted, he shall forthwith grant an order restraining and prohibiting such unlawful or corrupt expenditure, appropriation, squandering or waste of such moneys, under penalty for disobedience of fine or impris- onment, or both, in the discretion of the court. Laws 1879, chap. 307, § 2. § 147. Payment of bonded indebtedness of towns and villages, Tax may be levied for buying bonds or providing sinking fund. Any town or incorporated village in the State of New York, having issued its bonds, or that may hereafter issue its bonds under the provisions of law, and said bonds being a valid debt of said town or vil- lage, to mature or become due in a specified period of time, may, by a vote of a majority of the Electors present, and voting at any annual town meeting or charter election of said village, raise by tax levied upon the taxable property of said town or village, such sum as may be specified by said vote, in the manner herein- after provided, for the purpose of buying and can- celling said bonds, or the purpose of providing a sinking fund for the ultimate payment of said bonds. Laws 1874, chap. 410, § 1. Amount to be raised, how determined. The Town Board, consisting of the Supervisor, Town Clerk and Jus- tices of the Peace in towns, or the Village Trustees in vil- lages, shall meet at least twenty days before the annual town meeting or the annual village election, and shall deter- mine by a majority of said Board what amount shall be an- nually raised for the purpose as described in section one of this act, and the form of the ballot and the manner of voting, and shall give notice of such voting by posting at least five notices in public places in said town or village, setting forth the time of such voting, the amount to be raised and the purpose for which the same is raised, and the result of such vote shall be operative until the same shall be changed by a vote of said Electors, taken in a similar manner at a subsequent election. Ibid., § 2. BonDED DEBTS OF TOWNS, ETC. 147 Duty of Supervisor as to money raised. The money so raised shall be used to buy and cancel the said bonds, pro- vided the same can be purchased at their par value, or in case said bonds cannot be so purchased, said money shall be paid over to the County Treasurer of the county, who shall loan the same at seven per cent. per annum interest, secured by mortgage on unincumbered real estate, for a period of time equal to the time said bonds have to run, or invest the same in bonds of the State of New York, or of the United States, and at the maturity of said town or village bonds, said money shall be applied to the payment of said bonds, and the Supervisor of such town, or Presi- dent of the Trustees of said village, shall be charged with the duty of receiving said money from said County Treasurer, giving security for the same in double the amount received ; and of purchasing or paying said bonds, and of cancelling the same in ‘the presence of the said Town Board or Village Trustees, as the case may be. Laws 1874, chap. 410, § 3. § 148. Payment of town bonds given in aid of railroads. Vote to be taken on application. Upon the application in writing of at least twelve citizens, tax-payers of any town in this state, addressed to the Supervisor of such town, asking for the payment, in whole or in part, of the bonded indebtedness of such town, created in aid of any railroad therein, specifying the amount of such indebtedness to be paid, and how much thereof shall be paid annually, and asking also for a vote of the people of such town upon the question, the time and amount of such payment, the said Supervisor shall at the next annual town meeting to be held in such town, submit such question to the qualified voters of such town, and shall take the votes thereof in the manner following, to wit: The said Super- visor shall prepare a suitable book in which shall be transcribed a copy of the aforesaid application, under- written with the names of the signers thereof ; and shall open the same at the time of the opening of the polls of such town meeting, for the signatures of the qualified 148 ‘ THE LAW OF SUPERVISORS. voters of such town, by reading aloud to the people the said application and the names of its signers. The said voters, together with other individuals paying taxes in said town, who shall favor such application, may, during the time the polls of such town meeting are open, subscribe in such book such transcribed application or may authorize the Clerk of such town to subscribe the same for him or her. And any solvent moneyed, manufacturing or other corporation or company formed under the laws of this state, and being assessed on real or personal property in such town, shall have the rights and privileges under this act so far as property representation is concerned, as other tax-payers, to be exercised by its chief financial officer. Laws 1875, chap. 328, § 1. Supervisor to make certificate—action thereon. Imme- diately after the close of the polls of such town meeting, the said Supervisor shall affix his certificate next suc- ceeding the last name subscribed in such book, to the ef- fect that the persons whose names are subscribed in such book are qualified voters of such town or tax-payers therein and assented to the proposition submitted in the said application at such town meeting, and shall forth- with and within five days after such town meeting, trans- mit the said book so completed to the County Judge of his county ; and it shall be the duty of the said Judge forthwith and within ten days thereafter to proceed to take proof as to the relative number and assessed prop- erty represented by such voters; and if it shall appear satisfactorily to him that the persons who had so signed said application, and such other tax-payers of said town as may then and there appear before him and express a desire to subscribe the same, do represent a majority of the tax-payers of said town as shown by the last preced- ing tax list or assessment roll, and do represent a majori- ty of the taxable property upon said list or roll, he shall so adjudge and determine and cause the same to be en- tered of record and shall forthwith certify the same to the Board of Supervisors of his county, to whom he shall also transmit such book with its contents. Ibid., § 2. BonDED DEBTs oF Towns, Etc. 149 Tax, how levied and collected. It shall thereupon be the duty of the said Supervisors, in accordance with the terms and request of such application, to cause to be as- sessed, levied and collected in such town as other taxes in such town are assessed, levied and collected in each year, as the same is designated in such application, such sum or sums as shall be sufficient to pay off and discharge the said bonded indebtedness, either at one time and by one assessment, or by installments of yearly assessments and payments as may be designated in such application. Laws 1875, chap. 328, § 3. Application of moneys raised. The moneys so assessed, levied and collected shall be sacredly applied to the pay- ment of the bonds of such town, so given in aid of rail- roads as designated in such application, and to no other purpose whatever ; except that, in case there shall not be of such bonds as are then due and payable, sufficient in amount to exhaust the whole sum so collected, and the holders and owners of such other bonds as may not then have matured, shall not be willing to accept pay- ment thereof, the Supervisor shall cause the residue of said money so collected, after paying such bonds as he may be able to retire, to be invested in such state, county, town, city or village bonds, as may have been issued in pursuance of the laws of this state, or in United States bonds, to be deposited with the Treasurer of said county, as a sinking fund for the redemption and payment of the bonds of such town, created in aid of any railroad therein, and the avails of such sinking fund shall be sacredly applied for the payment and redemption of the bonds of such town as the same become due. JIbid., § 4. There are several other statutes relating to the exchange of municipal bondsand thereby extending time of payment thereof, and for the payment and cancellation of bonded indebtedness of towns, cities, villages and counties ; but as the Supervisor is not the officer through whom the action is to be taken, such statutes are omitted. 150 THE LAW OF SUPERVISORS. § 149. To receive avails of sale of stock and bonds of insolv- ent railroads. : Where a town holds any of the stock or mortgage bonds of a railroad company in this state, which has been adjudicated bankrupt, or the property of which shall be in the possession of a Reviewer appointed under the laws of this state, or the railroad or other property of which shall have been sold or shall have been deemed to be sold by virtue of any decree of foreclosure of any mort- gage executed by such railroad company, it is authorized to sell and dispose of such stock or mortgage bonds in the manner provided, and all moneys realized on such sale shall be paid over by the officer making the sale to the Supervisor of the town, and after paying the expenses of such sale shall be applied to the payment and extinguish- ment of its bonds, issued in aid of said railroad company, and to no other purpose whatever, provided that in case such bonds shall have been paid before such sale, or in case the moneys realized from such sale shall be more than sufficient to pay off such bonds, the proceeds of such rail- road stock or bonds, or any such balance thereof, shall be applied by such town to the payment of such other debt thereof, or to defray such other lawful charge thereupon as the qualified voters of such town, in town meeting, may direct. Laws 1875, chap. 585; 1 R. 8. (8th ed.) 955. By chapter 21, Laws 1880, as amended by Laws 1881, chap. 308, authority is conferred upon the several towns, cities and villages in the Counties of Chenango, Delaware, Madison, Ulster, Sullivan, Cortland, Orange, Cayuga and Oswego, the Towns of Pittsfield and Edmeston, in the County of Otsego, and the town of Vienna in the County of Oneida, and in such towns as have no Railroad Com- missioners, the Supervisor is authorized to make sale in the manner therein provided. § 150. May fill vacancy in office of Town Auditor. In case of any vacancy occurring in the Board of Town Auditors, by the death or removal from the town of any or either of such Auditors, or by his neglect or refusal to accept such office, the Supervisor of the town in which INSPECTION OF VINEGAR. 151 such vacancy occurs may appoint some suitable and com- petent person to fill such vacancy until the next annual town meeting thereafter. Laws 1875, chap. 180, § 5, as amended by Laws 1881, chap. 370. Chapter one hundred and eighty of the Laws of eight- een hundred and seventy-five, entitled, ‘‘ An act creat- ing a Board of Town Auditors in the several towns of this state and to prescribe their powers and duties,” and also the acts amendatory thereof, are hereby repealed, except in the Towns of Ausable, Champlain, Peru and Plattsburgh, in the County of Clinton, and the Town of Lenox in the county of Madison, and towns of Queens- bury, Chester and Caldwell, in the County of Warren, and the County of Essex. Laws 1883, chap. 48, § 1, as aniended by Laws 1883, chap. 130. § 151. As to general drainage law. The application provided for this section may be made by the Supervisor of any town, on behalf of the town, or by the President or Board of Trustees of any incorpo- rated village, on behalf of said village. Laws 1869, chap. 888, $1, see also § 16; 3 R. S. (8th ed.) 2714. The application alluded to has reference to a petition to be presented to the County Judge, for draining swamp lands, etc. § 152. May appoint Inspectors of vinegar. (CHAP. 606.) An act in relation to the manufacture and sale of vine- gar. Passed June 9, 1886. Manufacture of impure vinegar prohibited. § 1. Every person who manufactures for sale, or offers or exposes for sale as cider vinegar, any vinegar not the legitimate product of pure apple juice, known as apple cider, or vinegar not made exclusively of said apple cider, or vine- gar into which foreign substances, drugs or acids have been introduced, as may appear by proper test, shall for each offense be punishable by fine of not less than fifty, nor more than one hundred dollars. 152 THE LAW OF SUPERVISORS. Adulteration with drugs prohibited. § 2. Every per- son who manufactures for sale, any vinegar found upon proper test to contain any preparation of lead, copper, sulphuric acid, or other ingredients injurious to health, shall for such offense, be punishable by fine of not less than one hundred dollars. Appointment of Inspectors of vinegar. § 3. The May- or of cities shall, and the Supervisors of towns may afl- nually appoint one or more persons to be Inspectors of vinegar, who shall be sworn before entering upon their duties, and who shall have power and authority to in- spect and examine all vinegar offered for sale. It shall be the duty of such Inspectors to examine vinegar offered for sale, and they shall be charged with the enforcement. of the various provisions of thisact. They shall have full access to and egress from all places of business, factories, stores or other places where vinegar is or may be stored or offered for sale, and the right to examine and take samples from all vessels in which vinegar, or what is branded or otherwise represented to be vinegar, is con- tained, and to analyze the same, and to take samples for the purpose of analysis. The salary or compensation for Inspectors appointed under this act shall, in cities, be fixed and determined by the Common Council of such cities, and where the appoint- ment of Inspectors for towns is made by the Supervisors, as authorized by this act. The compensation of such In- spectors shall be fixed and determined by the Town Board ; and all salaries or compensation herein referred to shall be taised, levied or provided for in the annual tax levies of such cities or towns. Any person or persons wilfully preventing or obstruct- ing the said Inspectors in the performance of their duties shall be deemed guilty of a misdemeanor. It shall be the duty of such Inspector, upon the request. of any person owning or having vinegar in his custody, to inspect the same, and whenever such inspection and examination pursuant to such request is made, the INSPECTION OF VINEGAR. 153 Inspector shall, upon request of such person, give a certificate showing the percentage of acidity of the vinegar inspected or examined, for which the Inspector shall receive and be paid by the person requesting such exam- ination, the sum of one dollar ; and upon the request of said person the Inspector shall give an additional certifi- cate, which shall show in addition to the percentage of the acidity of the vinegar inspected or examined, its percentage of cider vinegar solids, for which he shall be paid by such person so requesting vinegar to be inspected, the sum of three dollars. It shall be the duty of the authorities of cities where such Inspectors are appointed, to provide a room or office, and all necessary chemicals and apparatus for the use of such Inspector and the proper discharge of the duties of his office. Each Inspector appointed under the provisions of this act, shall keep a book in which entry and date of all inspections and other transactions pertaining to the same, shall be made and kept; and the said book shall be sub- ject to the inspection of any citizen of the town or city where such Inspector resides. Said Inspectors shall, upon, request of the Board of Health of their respective towns or city, make report of all inspections made during the six months preceding such request. As amended by Laws 1887, chap. 634, § 1. Sale or possession of adulterated vinegar prohibited. § 4. No person shall by himself, his servant or agent, or as the servant or agent of any other person, sell, exchange, deliver or have in his custody or possession, with intent to sell or exchange, deliver or have in his custody or possession, with intent to sell or exchange, or expose or offer for sale or exchange any adulterated vinegar, or label. brand or sell as cider vinegar, or as apple vinegar, any vinegar not the legitimate product of pure avple juice, or not made exclusively from apple cider. Pure vinegar defined. § 5. All vinegars shall be with- out artificial coloring matter, and shall have an acidity 154 Tue LAW OF SUPERVISORS. equivalent to the presence of not less than four and one- half per cent, by weight, of absolute acetic acid, and in the case of cider vinegar, it shall contain in addition, not less than two per cent. by weight of cider vinegar solids, upon full evaporation over boiling water; and if any vinegar contains any artificial coloring matter, or less than the above amount of acidity or in the case of cider vinegar, if it contains less than the above amount of acidity or of cider vinegar solids, it shall be deemed to be adulterated within the meaning of this act. Cider vinegar, how branded. § 6. Every person making or manufacturing cider vinegar shall brand on each head of the cork, barrel or keg containing such vinegar the name and residence of the manufacturer, the date when same was manufactured, and the words cider vinegar. Penalties and collection thereof. § 7. Whoever violates any of the provisions of this act shall be punished by a fine not exceeding one hundred dollars. Any person who may have suffered any injury or damage by reason of the violation of any of the provisions of this act, or any Inspector appointed under this act, may maintain an action in his own name against any person violating any of the provisions of this act, to recover the penalties provided for such violation, and one-half of the sum re- covered shall be retained by such aggrieved person for his own use, and the other half shall be paid into the city or town treasury where such offence was committed, for the benefit of such city or town. In case the action is brought by any Inspector appointed pursuant to section three of this act, no part of the sum recovered in such action shall be retained by him for his own use; but in any such action so brought by an Inspector as aforesaid he shall not be held personally responsible for cost of suit, and the court in which such action is commenced, shall, from any penalty recovered in such action, make an allowance to the plaintiff for counsel fees, the remain- der, ifany, after paying such counsel fee, to be paid into MISCELLANEOUS DuttEs. 155 the city or town treasury where such offence was com- mitted, for the benefit of such city or town. No person shall be liable for any one offence but in one action, and in case an action is brought by an Inspector it shall be brought by him in his name as Inspector of Vinegar. As amended by Laws 1887, chap. 634, § 2. § 158. Toattend Board of Supervisors. The Supervisor of each town shall attend the annual meeting of the Board of Supervisors of the county, and every adjourned or special meeting of such Board, of which he shall have notice. 1R.S. (8th ed.) 899, § 6. § 154. To sue for penalties. He shail prosecute in the name of his town, or other- wise, as may be necessary, for all penalties of fifty dollars or under, given by law to such town or for its use, and for which no other officer is specially directed to prosecute. 1B. S. (8th ed.) 898, § 2. An action to compel Railroad Commissioners of a town to account for and pay over moneys received by them on sale of railroad stock of the town, and to recover the balance due to the town, in their hands, is properly brought by the Supervisor of the town in his own name as such. Griggs v. Griggs, 66 Barb. 287. Power to compromise a doubtful claim, upon which an action has been brought, is included in the general power of Supervisors to maintain actions. Supervisors of Or- leans Co. v. Bowen, 4 Lans, 24. $155. To pay judgments. If the Supervisor of a town or the Overseers of the Poor of a town, against whom any judgment shall have been rendered, which shall not be suspended by writ of error or otherwise, have sufficient moneys in their hands belonging to their town, not specially appropriated, they shall in like manner pay the amount of such judgment and the interest thereon, upon the like evidence ; and for a failure so to do, they shall in like manner be responsible personally to the party in whose favor such judgment was obtained. 3 R. S. (8th ed.) 2685, § 105. 156 Tue LAw OF SUPERVISORS. If the recovery be had against a town in its own name, the Supervisor thereof shall, in like manner and upon the likeevidence, pay the amount thereof with interest, out of any moneys in his hands belonging to such town, not specially appropriated ; and for a failure to do so, shall be personally responsible for such amount to the party in whose favor such judgment was obtained. 3 R. 8. (8th ed.) 2685, $106. SUPPLEMENTARY PROCEEDINGS TO COLLECT TAXES. § 156. May institute supplementary proceedings to collect taxes. When a tax exceeding ten dollars in amount, levied by the Board of Supervisors of a county against a person, firm, estate or corporation, resident thereof or by the Board of Trustees of a village against a person, firm, estate or corporation, residents of the county in which such vil- lage or the principal part thereof is located, is returned by a Town or Village Collector uncollected, for want of goods and chattels out of which to collect the same, the Super- visor of the town or ward, or the County Treasurer, and the President of a village as to a village tax, within one year thereafter may apply on affidavit to the County Judge or special County Judge of the county, and obtain an order requiring such person, firm, estate or corporation to appear before such County Judge or before a referee named in such order, and answer concerning his, their or its property. The same proceedings may in all respects be had as in cases supplementary to execution, and the same costs and disbursements may be allowed against the person, firm, estate or corporation examined concerning his, their or its property, but none shall be allowed in his, their or its favor. The tax if collected, shall be paid over to the County Treasurer, or to the Supervisor of a town to which the same may belong, and in the case of a village tax, to the Treasurer of the village to which the same belongs, and the costs collected shall belong to the party instituting SUPPLEMWTY PROCEEDINGS TO CoLLEcT Taxes. 157 the proceeding, and shall be applied by him to the pay- ment of the expenses of such proceeding. A County Treasurer shall have no additional compen- sation for such proceeding, a Supervisor shall have no other compensation, except his per diem fees for time necessarily spent in the proceeding, and a president of a village shall have no compensation for such proceeding. Laws of 1867, chap. § 61, § 1, as amended by Laws of 1881, chap. 640, § 1. This act shall apply to all villages, whether incorpo- rated by special act or under the general acts providing for the incorporation of villages, and shall also apply to all cases where returns have already been made by Town or Village Collectors, as well as to all cases which may hereafter arise, provided that the proceeding be com- menced within one year after the Collector has made his returns. Jbid., § 2, as amended by Ibid., § 2. As County Courts are not courts of general jurisdiction but possessed of a limited statutory jurisdiction it is essential that their jurisdiction must appear affirma- tively upon the face of the record. Frees v. Ford, 6 N. Y. 176; Kundolf v. Thalheimer, 12 N. Y. 593; People v. Bradner, 107 N. Y. 8; Dake v. Miller, 15 Hun, 356. The proceeding under above statute is a ‘special pro- ceeding.” Code Civ. Pro., §§ 2433, 3334. An order made in such proceeding is appealable to the general term of the Supreme Court. Code Civ. Pro., § 1357. Affidavit. In the matter of supplementary proceed- ] ings to collect a tax of [ Gilbert Winspear. J Srate or New York, } Be County of Erie. : John H. Stoneway being duly sworn says that he is Supervisor of the Town of Grand Island, in the County of Erie and State of New York. That Gilbert Winspear during all the time hereinafter mentioned was and still is 158 Tue Law oF SUPERVISORS. a resident of said town and county. That prior to the first day of February 1887, said Winspear owned and occupied and still owns and occupies a tract of land lying and being in said town and which was during the year 1887, and still is, subject to taxation for town, county and state purposes under the general laws of this state, provid- ing for the assessment, levying and collecting of taxes. That under and pursuant to such laws, on the first day of July, 1887, the Assessors of said Town of Grand Isiand, duly listed, valued and assessed the property, both real and personal, of said Gilbert Winspear, in said town, and liable to taxation, in which assessment was included the real estate above referred to, and entered the same in the assessment roll of taxable property in said town. That prior tothe first day of August, 1887, said Assessors com- pleted the assessment roll of said town and gave the pub- lic notice thereof as required by the statute, and at the time and place prescribed in said statute, viz.: On the third Tuesday of August 1887, and at the town hall in said town, the time and place specified in such notice, said As- sessors heard all objections thereto and duly reviewed their said assessment roll, and thereafter verified said assessment roll as by law required; and on or about the first day of November 1857, said assessment roll was duly delivered to the Board of Supervisors of said County of Erie, at their next annual meeting. That said assessment roll when so delivered to said Board of Supervisors in- cluded said real estate so owned and occupied by said Gilbert Winspear and which was assessed to him and valued at one thousand dollars. That at and during said sessions of said Board of Supervisors and in the month of December, 1887, said Board duly levied, entered and ex- tended a tax against the inhabitants of said town of Grand Island, and upon the real and personal property described and included in the assessment rolls of the different towns in said County of Erie, including said assessment roll of the Town of Grand Island, and then and there duly executed them under the hands and seals of the several members of said Board, and issued their war- SUPPLEMW’TY PROCEEDINGS TO COLLECT TaxEs. 159 rant for the collection of the taxes therein set forth and caused the same to be duly delivered to the Collectors of the several towns in said county, including the Collector of the Town of Grand Island. That in and by said list, assessment roll and warrant so delivered to the Collector of the Town of Grand Island, a tax amounting to fourteen dollars and thirty cents, against said Gilbert Winspear, and upon said real property hereinbefore mentioned, was levied, entered and extended, which tax it was the duty of the Collector of said town to collect and pay over according to law. That on the day of 1888, the Collector of said Town of Grand Island duly returned said warrant with the said tax of fourteen dollars and thirty cents against the said Gilbert Winspear, wholly uncollected, for the reason that he could not find sufficient goods and chattels of said Gilbert Winspear, out of which to make the same. That said tax remains and is wholly uncollected and unpaid. ; That less than one year has elapsed since the return of said warrant, showing said tax unpaid, as aforesaid, and that no previous application has been made to any officer for an order to examine said Gilbert Winspear, in relation to said uncollected tax, pursuant to the provisions of Laws 1867, chapter 861, as amended by Laws 1881, chapter 640. JOHN H. STONEWAY, Subscribed and sworn to bee. me this 6th day of June, 1888. E. V. Cook, Justice of the Peace. , T have drawn this affidavit very full, stating all the jurisdictional facts, showing a valid tax and proper return of the warrant, as I do not regard the case of the Matter of Conklin, 36 Hun, 588, as a safe precedent. See cases above cited. In this proceeding it is competent for the person pro- ceeded against to attack the validity of the tax or of any of the jurisdictional proceedings culminating in the warrant. Where he shows a defective affidavit by the 160 Tue Law OF SUPERVISORS. Assessors to the assessment roll, he is entitled to have the proceedings dismissed. See Inman v. Coleman, 37 Hun, 170. County Judge’s order. In the matter of supplementary proceedings to collect a tax ‘ oO Gilbert Winspear. It appearing to my satisfaction by the foregoing (or an- nexed) affidavit of John H.Stoneway, Supervisor of the Town of Grand Island, that a tax exceeding ten dollars in amount was levied by the Board of Supervisors of the County of Erie, against Gilbert Winspear, a resident of the Town of Grand Island, in the County of Erie, N. Y., and that a warrant in due form was properly issued by said Board of Supervisors to the Collector of the said Town of Grand Island, for the collection of said tax of the said Gilbert Winspear and that said warrant has been duly returned, in and by which it appears that said tax was and still remains wholly uncollected for want of goods and chattels out of which to collect thesame. I dotherefore hereby order that it be referred to Willis J. Benedict, Esq., a counselor at law of Buffalo, N. Y., to examine the said Gilbert Winspear and take his answers under oath, con- cerning his property and to reduce such answers and examinations to writing; and also to examine under oath such witnesses as may be offered by the respective parties, and reduce such examinations to writing, and that said Referee certify and returns to me all the evidence and other proceedings taken before him under and by virtue of this order, with all convenient speed. AndIdo hereby appoint the said Willis J. Benedict, Esq., a Referee in this proceeding, for the purpose aforesaid, and he may adjourn these proceedings from time to time as he may think proper. And I do also further order and require the said Gilbert Winspear to attend and be examined before the said Ref- eree, at his office, No. 404 Main Street, in the City of Buffalo, New York, on the thirteenth day of June, 1888, at SUPPLEM’TY PROCEEDINGS TO COLLECT TAXES. 161 ten o’clock in the forenoon, concerning his property as aforesaid and for that purpose to appear before the said Referee from time to time as he shall direct and appoint. And the said Gilbert Winspear is hereby forbidden from making or suffering any transfer or other disposition of or interference with the property of the said Gilbert Win- spear or in which he has any interest, legal or equitable, and not exempt from levy and sale on execution, until further order in the premises. Dated June 6, 1888. WILLIAM W. HAMMOND, County Judge of Erie County. A copy of the affidavit and order must be served per- sonally on the party proceeded against. Upon return of the examination to the County Judge, further proceedings are to be conducted like proceedings supplementary to the execution as prescribed by the Code of Civil Procedure. § 157. As to filing bonds, etc. It will be observed that all reports, bonds, etc., men- tioned in the different statutes, are required to be “ filed,” either with the Supervisor, Town Clerk, or some other specified officer. It is. quite important that all such papers should be properly folded and endorsed and filed. The endorse- ment should show from the paper covers to whom it runs, what the paper is and near the bottom it should be filed thus : Town oF LANCASTER, ae Town Clerk's office. ; The within report was filed in this office June 25, 1888. PALMER N. BOWMAN, Town Clerk. § 158. Stone crusher, when he may purchase for town. The Supervisor of any town in the State of New York may, when authorized so to do by a majority vote of the Electors voting thereon at the annual or at a special town meeting, purchase a machine for crushing stone, to be used for the improvement of the roads of said town, 11 162 Tue LAW oF SUPERVISORS. and shall present his account and vouchers for such pur- chase, to the Board of the Town Auditors of his town, for audit. Laws 1884, chap. 220, § 1. § 159. Notice of such election to be given. The Town Clerk, on the application of the Road Com- missioners of the town, or a majority of them, shall give at least ten day’s notice that such vote will be taken, by posting notices of the same in not less than five public places in the town and the vote when taken shall be by ballot, which, written or printed, shall read as follows: “For a stone crusher,” or ‘‘ Against a stone crusher.” Ibid., § 2. § 160. Custody and use of machines. Such machines when purchased, shall be deemed to be, and shall be, under the care and custody of the Supervisor of the town, and where there is an incorpo- rated village constituting a separate road district in any town, he shall permit an equitable use of said machine to said separate road district. Jbdd., § 3. § 161. Tax to pay for same. The Board of Supervisors of the county shall cause to be levied and collected by tax, in any town having authorized the purchase of a stone crushing machine, in the same manner as other town taxes are levied and collected, such sum as shall be necessary to pay for the purchase of the same. Jbid., § 4. This act shall take effect immediately. Jbid., § 5. § 162. Purchase stone for improving highways. Whenever any town shall have purchased a machine for crushing stone, by virtue of the provisions of this act, the Town Clerk of such town, on the application of the Commissioners of Highways, or a majority of them, shall call a special town meeting of the Electors of said town, to vote upon the question of raising by tax a sum of money, to be specified in said call, not exceeding two thousand dollars in any one year, for the purpose of purchasing rock or stone, quarrying, breaking, crushing PURCHASING STONE CRUSHER. 163 and placing the same on the highways in said towns, and to defray all the ex penses of operating said stone crushing machine; such vote to be taken, either at a special town meeting called for that purpose or at any annual town meeting. In either case the Town Clerk shall give at least eight days notice that such vote will be taken, by posting notices thereof in not less than five public places in said town; and the vote, when: taken, shall be by ballot, either written or printed, and shall read as follows: ‘‘For the appropriation to defray the expenses of supplying and operating the stone crusher,’ or ‘‘Against the appropriation to defray the expenses of supplying and operating the stone crusher.” If a major- ity of the ballots are cast ‘‘For the appropriation to defray the expenses of supplying and operating the stone crusher,’’ the Board of Supervisors of the county shall cause to be levied and collected by tax, in any town having voted as aforesaid, either at special or annual town meeting, the amount so voted, in the same manner as other town taxes are levied and collected, and the same shall be paid over to the Commissioners of High- ways, to be used by them for the purposes aforesaid. Laws 1884, chap. 220, § 6, as added by Laws 1887, chap. A471. 164 THe Law OF SUPERVISORS. CHAPTER VIII. SUPERVISOR’S DUTIES IN CONNECTION WITH OTHER TOWN OFFICERS. § 163, § 164. § 165. § 166. § 167. § 168. 8 169. § 170. § 171, § 172. § 173. . Erection of town houses. § 17 § 175. § 176. WITH OTHER SUPERVISORS AND OVERSEERS OF THE POOR. Disposal of town lands on division of a town. When part of one town is annexed to another. Lands, when to be sold. Apportionment of personal property. Call for meetings. Cemeteries excepted. Town debts to be apportioned. Gospel and school lots. SUPERVISOR, JUSTICES OF THE PEACE AND TOWN CLERK. Duties as member of Board of Health. Duties in relation to contagious diseases. To destroy adulterated wines. Filling vacancies in office of Justice of the Peace. Filling vacancies in office of Inspectors of Election. SUPERVISOR, JUSTICES OF THE PEACE, TOWN CLERK AND COMMISSIONERS § 177. § 178. $179. OF HIGHWAYS. In relation to water-works companies, Repairing or rebuilding bridges. Borrowing money for highway purposes, SUPERVISOR, JUSTICES OF THE PEACE AND COMMISSIONERS OF HIGHWAYS. § 180. § 181. § 182. § 183. § 184. § 185. § 186, § 187. As to fires in the woods. SUPERVISOR AND JUSTICES OF THE PEACE, Control of Town House. Leasing public buildings to Grand Army Posts. Town sealers of weights and measures, appointment of. Firemen, appointment of. Collector of taxes, appointment of. Commissioners of Excise, appointment to fill vacancies. As to sale of railroad stock owned by towns, Douries IN CONNECTION WITH OTHER OFFICERS. 165 SUPERVISOR, TOWN CLERK AND ASSESSORS. § 188. Jury lists, how made in towns. §189 *§ ‘¢ in cities. §190. “ “ how made. § 191. Persons disqualified to serve as jurors. § 192. Persons exempt from service as jurors. § 193. Persons exempt under special laws. § 194. Qualifications for trial jurors. § 195. Duplicate jury lists to be made and filed. § 196. When list is lost or destroyed. § 197. Jurors to serve three years. SUPERVISOR AND TOWN CLERK. = § 198. On the incorporation of villages under General Laws of 1870. SUPERVISOR AND TOWN COMMISSIONERS. § 199. To prevent spread of diseases in peach and other trees. SUPERVISOR AND COMMISSIONERS OF HIGHWAYS, § 200. Agreement with plank or turnpike road company for use of highway. § 201. Under general drainage law. SUPERVISOR WITH OTHER SUPERVISORS AND OVERSEERS OF THE POOR. § 163. Town lands, how disposed of on division of town. When a town seized of lands shall be divided into two or more towns, the Supervisor and Overseers of the Poor of the several towns constituted by such division, shall meet as soon as may he after the first town meet- ing subsequently held in such towns, and when so met, shall have power to make such agreement concerning the disposition to be made of such town lands and the appor- * tionment of the pruceeds, as they shall think equitable, and to take all measures and execute all conveyances which may be necessary to convey such agreement into effect. 1. 8. (8th ed.) 878, § 4. § 164. When part of a town is annexed to another. When any such town shail be altered in its limits, by the annexing of a part of its territory to another town or towns, the Supervisors and Overseers of the Poor of the town from which such territory shall be taken, and of 166 THe Law OF SUPERVISORS. the town or towns to which the same shall be annexed, shall, as soon as may be after such alterations, meet for the purpose and possess the powers provided in the last preceding section. 1R. S. (8th ed.) 878, § 5. § 165. Ifno agreement be made, lands to be sold. If no agreement for the disposition of such lands shall be made by the Supervisors and Overseers, within six months after such division or alteration, and the Super- visor and Overseers of the Poor of each town in which any portion of said lands shall lie, shall proceed as soon as may be, to sell and convey such part of said lands as shall be included within the limits of such town, as fixed by the division or alteration; and the proceeds arising from such sale shall be apportioned between the several towns interested therein, and the Supervisors and Over- seers of the Poor of all the towns according to the amount of taxable property in the town divided or altered, as the same existed immediately before such division or altera- tion, to be ascertained by the last assessment list of such town. 1R. 8. (8th ed.) 878, § 6. § 166. Personal property, how apportioned. When a town possessed of or entitled to money, rights and credits, or other personal estate shall be so divided or altered, such personal estate including moneys belong- ing to that town in the hands of town officers, shall be apportioned between the towns interested therein, by the Supervisors and Overseers of the Poor of’ such towns, (who shall meet for the purpose as soon as may be after the first town-meetings subsequently held in such towns), - according to the rule of apportionment above prescribed. 1B. 5. (8th ed.) 879, § 7. § 167. Such meetings, how called. Whenever a meeting of the Supervisors and Overseers of two or more towns shall be required, in order to carry into effect the provisions of this article, such meeting - may be called by either of said Supervisors; but the Supervisor calling the same shall give at least three days DUTIES IN CONNECTION WITH OTHER OFFICERS, 167 notice in writing to all the other officers, of the time and place at which such meeting is to be held. 1. 8. (8th ed.) 879, § 8. § 168. Cemeteries excepted. The preceding sections shall not, however, apply to any cemetery or burial ground ; but the same shall belong to the town within which it may be situated, after a division shall have been made. 1 R. S. (8th ed.) 879, § 9. § 169. Debts to be apportioned. Debts owing by a town so divided or altered shall be apportioned in the same manner as the personal property of such town ; and each town shall thereafter be charged with its share of such debts, according to such apportion- ment. Jbid., § 10. § 170. Gospel and school lots. Nothing contained in this title shall apply to any of the lots heretofore granted by the people of this state to any town, for the support of the gospel and of schools, com- monly called gospel and school lots. Ibid., § 11. SUPERVISOR, JUSTICES OF THE PEACE AND TOWN CLERK. § 171. His duties as member of Board of Health. Board of Health in cities and villages.* §1. It shall be the duty of the Common Council, upon the nomination of the Mayor, of every city in this state, except in the Cities of New York, Buffalo, Albany and Yonkers and Brooklyn, which are hereby excepted from the operation of this act, to appoint a Board of Health for such city, to consist of six persons who are not members of said Coun- cil (one of whom, at least, shall be a competent physician), who shall be nominated and appointed as follows: Two persons for a term of one year; two persons for a term of two years ; and two persons for a term of three years. The Mayor of such city shall be a member ex officio of * Chap. 270, Laws of 1885, entitled ‘‘ An act for the preservation of the public health and the registration of vital statistics.” Passed May 12, 1885. 168 Tur Law OF SUPERVISORS. such Board of ‘Health, and shall be president thereof. The said Board of Health, when duly organized, shall - appoint a competent physician (not a member of said board) who shall be Health Officer for such city. Upon the expiration of the term of office of any member of the Board of Health, appointed as herein provided, his suc- cessor shall be nominated and appointed in like man- ner for the term of three years ; and the said Mayor and Common Council shall also have power to fill any vacancy caused in such Board of Health by the death, resignation or removal from the city of any member thereof. And it shall be the duty of the Trustees of every incorporated village in this state, to appoint once in each year, a Board of Health of such village, to consist of not less than three nor more than seven persons (who are not Village Trus- tees), who shall hold office for one year or until theirsuc- cessors shall have been appointed. The Board of Health thus constituted shall elect a president and appoint a competent physician (not a member of such Board) to be the Health Officer of such village. This section shall not be construed to remove any of the existing Boards of Health in any of the cities or villages of this state, but the successors of such Boards shall be appointed as in this section provided. Laws 1885, chap. 270, § 1. Boards of Health in towns. § 2. It shall be the duty of the Supervisor, the Justices of the Peace and the Town Clerk in each town in this state, to meet in their respect- ive towns within thirty days from the date of the town election in each year and elect a citizen of such town, of full age, who, with them, shall constitute the Board of Health for such town, for one year or until their successors are chosen. The said Board of Health shall appoint some competent physician, not a member of said Board, to be the health officer of such town. If in any case a vacancy shall occur in the Board of Health of any city, village or town, by the death, resig- nation, inability to act or removal from said city, village or town of any member thereof, and if the proper author- Duties as To Bosarp oF HEALTH. 169 ities, by inability, neglect or refusal, fail to fill such va- cancy, it shall be the duty of the County Judge of the county in which such city, village or town is situated upon being satisfied that such vacancy should be filled without delay, to appoint in writing a competent person to fill such vacancy forthe unexpiredterm. The written appointment of a Board of Health made by a County Judge under this section shall forthwith be filed in the office of the Clerk of the county in which said Board of Health is located. Notice of the membership and organ- ization of all Boards of Health in this state and of all changes that may from time to time occur therein shall be given forthwith to the State Board of Health. Laws 1885, chap. 270, § 2. Powers of Boards of Health. § 3. The several Boards of Health now organized in any city, village or town in this state (except in the cities of New York, Brooklyn and Buffalo) and the several Boards of Health constituted under this act shall have power and it shall be their duty : 1. To meet at stated intervals in their respective cities, villages and towns; also whenever the State Board of Health or the president and secretary thereof shall, by no- tice to the presiding officer of any City, Village or Town Board of Health, request him to convene such Board to take certain definite proceedings upon matters concerning which the said State Board of Health, or its president and secretary, shall be satisified that the action recommended by them is necessary for the public good, and is within the jurdisdiction of such Board of Health. Any wilful violation of any lawful instruction of said State Board of Health shall be a misdemeanor. 2. To prescribe the powers and duties of the Local Health ‘officer, who shall act as executive officer of the Board ; to direct him from time to time in the performance of his duties, and to fix the compensation he shall receive. 3. To guard against the introduction of contagious and infectious diseases by the exercise of proper and vigilant 170 Tur LAW OF SUPERVISORS. medical inspection and control of all persons and things arriving in such city, village or town, from infected places, or which, for any cause, are liable to communi- cate contagion ; to require the isolation of all persons and things infected with or exposed to contagious or infec- tious diseases, and to provide suitable places for the recep- tion of the same; and if necessary, to furnish medical treatment and care for sick persons who cannot otherwise be provided for; to prohibit and prevent all intercourse and communication with or use of infected premises, places and things ; and to require and, if necessary, to providethe means for the thorough purification and cleans- ing of the same before general intercourse therewith or use thereof shall be allowed. And it shall be the duty of every such Board of Health to report to the State Board of Health promptly, facts which relate to infectious and epidemic diseases, and every case of small-pox or vario- loid occurring within its jurisdiction ; and to provide at stated intervals a suitable supply of vaccine virus of a quality or from a source approved by the State Board of Health ; and during the existence of an actual epidemic of small-pox, said Local Board of Health shall obtain fresh supplies of said virus at intervals not exceeding one week, and shall at all times provide thorough and safe vaccination for all persons within its jurisdiction, who may need thesame. 4. To reserve and examine into the nature of com- plaints made by any of the inhabitants concerning nui- sances, or causes of danger or injury to life and health, within the limits of its jurisdiction ; to enter upon or within any place or premises where nuisances or condi- tions dangerous to life and health are known or believed to exist, and by appointed members or persons to inspect and examine the same, and all owners, agents and occu- pants shall permit such sanitary examinations, and said Board of Health shall furnish said owners, agents and occupants a written statement of results or conclusions of such examinations, and every such Board of Health Duties As To Boarps oF HEALTH. 171 shall have power and it shall be its duty, to order the suppression and removal of nuisances and conditions detrimental to life and health, found to exist within the limits of its jurisdiction. 5. To supervise and make complete registration of all births, marriages and deaths occurring within the limits of its jurisdiction in accordance with the methods and forms prescribed by the State Board of Health, and to secure the prompt forwarding of the certificates of birth, marriage and death to the State Bureau of Vital Statistics after local registration, and in so completing the said registration the cost thereof shall be a charge upon such city, village or town, and shall not exceed fifty cents for each completely verified, registered record of birth, mar- riage or death, and to secure the completeness of the said registration it shall be the duty of the parents or custo- dian of every child and the groom at every marriage, or the clergyman, or magistrate performing the ceremony, to secure the return of the record of such birth or marri- age to the Board of Health or person designated by them within thirty days from the date of such birth or marri- age, and each record shall be duly attested by the physi- cian or midwife (if any) in attendance at such birth, or the clergyman or magistrate officiating at such marriage. And it shall be the duty of the Health Officer of every such Board of Health to receive and examine and secure the registration of all certificates and records of death and causes of death and findings of Coroner’s juries, and said Board of Health shall designate the persons who shall grant burial permits for the burial of the dead, and transmit permits for the transportation of the dead bodies of persons which are to be carried for burial beyond the limits of the county where the death occurs ; and it shall be the duty of the undertaker, sexton or other person having charge of the body of any dead person, to procure a record of the death and its probable cause, duly certified by the physician in attendance on the deceased during his last illness, or by the Coroner where an inquest is re- quired by law ; and there shall be no burial nor remov- 172 THe LAW OF SUPERVISORS. al of the body of any dead person until said duly certi- fied record shall have been presented to the Board of Health or person designated by them and until thereupon a permit for burial or transmit shall have been obtained. And the said Board of Health shall prescribe sanitary reg- ulations for such burials and removals of the dead. It shall also be the duty of every such Board of Health to provide for obtaining copies of the said registered records of births, marriages and deaths, and for the amount and payment of fees for such copies. Such copies duly attest- ed by the Local Registering Officer and verified transcripts from the records preserved in the State Bureau of Vital Statistics shall be admitted in all the courts of this state as prima facie evidence of the facts therein set forth. If in any place in this state, the State Board of Health ascertains that the said registration of births, marriages and deaths is not completely and well, made, said State Board shall notify the Local Board of Health in such place, that with- in one month from the date of such notice, said defects ° and neglect in the records must be amended and prevent- ed. Ifat the expiration of the time mentioned the said defects and neglects are not overcome and prevented by the said local authorities, it shall be the duty of the said State Board of Health to take control of the said records, and enforce the rules and regulations with reference there- to and to secure their completeness and proper registra- tion within the limit of cost hereinbefore specified, and to continue such control until the said Local Board of Health shall satisfy the said State Board of Health that they will actually make the said records and registering com- plete as required by law. Any person neglecting or refusing to make out or file for registration any record as aforesaid, and any person causing, permitting or as- sisting in the burial or removal of any dead body, unac- companied by a permit for such burial or removal, duly issued by the Local Board of Health having jurisdiction where the death occurred, and any officer or Board that shall neglect or refuse to register and preserve the said records and forward the certificates to the State Bureau of Vital Statistics as above required, shall be deemed Duties as To Boarps oF HEALTH. 1738 guilty of a misdemeanor and may be prosecuted in any court of competent jurisdiction. 6. To make, and from time to time to publish, in such manner as to secure early and full publicity thereto, all such orders and regulations as they shall think necessary and proper for the preservation of life and health and the successful operation of this law ; and to make, without publication thereof, such orders and regulations in special or individual cases, not of general application, as they may see fit concerning the supervision and removal of nuisances, and concerning all other matters in their judg- ment detrimental to public health, and to serve copies thereof upon any occupant or occupants, and the owner or owners of any premises whereon any such nuisances or other matters aforesaid shall exist, or to post the same in some conspicuous place on such premises. 7. To issue warrants to any Constable or Police of their respective cities, villages and towns, to apprehend and remove such persons as cannot otherwise be subject to the orders and regulations by them adopted ; and when- ever it shall be necessary to do so, to issue their warrant _ to the Sheriff of their respective counties to bring to their aid the power of the county, all of which warrants shall be forthwith executed by the officers to whom they shall be directed, who shall possess the like powers and be sub- ject to the like duties in the execution thereof, as if the same had been duly issued out of any court of record in this state. 8. To employ all such persons as shall be necessary to enable them to carry into effect the orders and regulations they shall have adopted, and the powers vested in them by this act, and to fix their compensation. 9. To impose perialties for the violation of, or non- compliance with, their orders, and regulations, and to maintain actions in any court of competent jurisdiction to collect such penalties, not exceeding one hundred dollars in any one case, or to restrain by injunction such violations, or otherwise to enforce such orders and regulations. Ibid., § 3. 174 THE LAW OF SUPERVISORS. Penalties for violations, etc. § 4. Every person who shall willfully violate or refuse to obey any order or regulation made and published by the Board of Health of any city, village or town in this state, or any order made and served, or posted as aforesaid, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be sub- ject to a fine or imprisonment, or both, in the discretion of the court ; such fine not to exceed one thousand dollars nor such imprisonment six months. And in any case of non-compliance with any order or regulation which shall have been served or posted, as provided in subdivision six of section three of this act, the said Board or its servants or employes may lawfully enter upon any premises to which such order or regulation relates, and suppress or remove the nuisance or other matter in the judgment of said Board detrimental to the public health mentioned in such order or regulation, and any other nuisance or matter of the description aforesaid found there existing ; and the expense thereof shall be a charge upon the occupant or any or all of the occupants of said premises, or upon the person or persons who have caused or main- tained the nuisance or other matter of the description: aforesaid, and may be sued for and recovered with costs by said Board in the name of such Board in any court having jurisdiction. Whenever execution upon any judgment so obtained shall have been returned wholly or in part unsatisfied, said judgment, for the amount so unsatisfied, shall be a lien upon‘said premises, having preference over all other liens or incumbrances whatso- ever. But in order to acquire such lien, such judgment, . if in a court not of record, shall first have been docketed in the same place and manner as by law now required to make judgments in such courts liens upon real estate. And whenever any lien upon any premises shall have become fixed as aforesaid, the said Board may cause the said premises to be sold at public auction for a term of time, for the payment and satisfaction of such lien, and the expenses of such sale, giving notice of such sale for twelve weeks successively, once in each week, in one or more newspapers published in the city, incorporated Duties as.To Boarps of HEALTH. 175 village or town where the premises are situated, as the case may be; or, if no newspaper be published in such village or town, then in the newspaper published nearest said premises, and also serving a copy of such notice of sale personally on the owner or agent of said premises, if known, and a resident of said city, village or town, at least fourteen days previous to such sale, or by depositing the same in the post-office, directed to such owner or agent at his place of residence, if known, or the nearest post-office thereto, at least twenty-eight days previous to such sale. And the said premises shall be sold to the person who shall offer to take the same for the shortest time, paying the amount remaining unpaid upon such judgment, with interest, and the expenses of such notice and sale. A certificate of such sale, signed by the pres- ident and countersigned by the secretary of such Board, shall thereupon be made and delivered to the purchaser, and may be recorded in like manner ana with like effect as deeds of conveyance of lands, and thereupon the pur- chaser, his heirs or assigns, shall be entitled to the possession of said premises so sold as aforesaid, and if unoccupied may immediately enter, and if occupied may have remedy against any occupant by action or summary proceedings as against a tenant holding over after expira- tion of his term; and in case the costs of such ac- tion or proceeding shall not be collected by such purchaser of the defendant therein, the same shall be a lien upon said premises, having the like preference as the lien aforesaid and the terms of the said purchaser shall be extended during a time bearing the same proportion to the original term as the amount of such costs bears to the amount paid by such purchaser on such sale. And such term shall commence when such purchaser shall have acquired possession. At any time after such -sale and within six months after the recording of such certificate as aforesaid, the owner or any lienor or incumbrancer of such premises or of any part thereof, may redeem by paying to the purchaser the amount paid by him on such sale, and all costs and expenses he may 176 Toe Law OF SUPERVISORS. have incurred in any action or proceeding as aforesaid, to obtain possession with ten per cent. interest thereon. If such redemption be made by the owner, the right of the purchaser shall be extinguished ; and if by such lienor or incumbrancer, the amount paid to him to redeem shall be added to his lien or incumbrance, or if he have more than one, to the oldest, and shall thenceforth par- take of the nature thereof and be collectible by any rem- edy adapted thereto. Laws 1885, chap. 270, § 4. Expenses of Boards a public charge. § 5. All expenses incurred by the several Boards of Health in the execution and performance of the duties imposed by this act, shall be a charge only on their respective cities, villages and towns; and shall be audited, levied, collected and paid in the same manner as other city, village and town charges are audited, levied, collected and paid. Jbzd., § 5. Removal of persons in case of contagious disease. § 6. Whenever any pestilential or infectious or contagious disease shall exist in any county poor-house in this state, or in the vicinity of any such county poor-house, and the physician of such county poor-house shall certify that such pestilence or disease is likely to endanger the health of the persons supported at such poor-house, the Superintend- ent of such county poor-house shall have power to cause the persons supported at such poor-house, or any of them, to be removed to such other suitable place in the same county as shall be designated by the Board of Health of the city, town or village within which such poor-house shall be situated, there to be maintained and provided for at the expense of the county, with all necessary medical care and attendance, until they shall be safely returned to the county poor-house from which they were taken, or otherwise discharged. Ibid., § 6. Powers of Boards where village is in two towns. § 7. Any legally organized Board of Health in an incorporated village, which comprises parts of several towns, or less DuTIES AS TO BOARDS OF HEALTH. 177 than a whole town, shall have full authority in regard to all matters relating to public health within said village, and such village shall not be subject to the sanitary regu- lations of Health Officers of the township or town within which such village is located, nor shall the taxable property of any such village, while maintaining its own Board of Health, be subject to taxation for maintaining any Town Board or Boards of Health, or for any expendi- tures authorized by such Town Boards; but such ex- penditures of the Town Boards of Health, shall be as- sessed and collected exclusively on property in the town outside of said village. But nothing in this act shall be construed to prevent the Boards of Health of two or more towns adjacent to each other or of towns and vil- lages therein situated, from uniting in a combined sani- tary and registration district by the appointment of one Health Officer and Registering Officer for such district, whose authority in all matters of general application shall be derived from the several Boards of Health having jurisdiction within such district, and in special cases, not of general application, arising within the juris- diction of any of such Boards of Health, the said Officers shall derive their authority from such Board alone. Such combined district shall be formed subject to the approval of the State Board of Health. Laws 1885, chap. 270, § 7. Mandamus to enforce duties. § 8. Any duty prescribed or enjoined by this act upon any Local Board of Health, or any member oc officer thereof, or upon any Common Council of any city or any member thereof, or upon the Board of Trustees of any village or any member thereof, or upon any officer of any city, village or town, may be enforced by a mandamus at the instance of the State Board of Health, its president, secretary, or any member thereof. Jbid., § 8. Former acts repealed. § 9. Chapter one hundred and fifty-two of the laws of eighteen hundred and forty-seven, chapter three hundred and twenty-four of the Laws of 178 Tue LAW OF SUPERVISORS. eighteen hundred and fifty, and the several acts amend- atory thereof, chapter five hundred and twelve of the Laws of eighteen hundred and eighty, except sub-divis- ion thirty-four, section one of said act, and all other acts or parts of acts, general or special, inconsistent with the provisions of this act, are hereby repealed. Laws 1885, chap. 270, § 9. § 172. Contagious diseases. An act to prevent the spread of contagious and infectious diseases. Passed May 12, 1886, being, chapter 329, Laws of 1886. Whenever the body of any deceased person is to be transported over any railroad of this state or upon any passenger steamboat plying upon the rivers of this state, the Board of Health to which application is made for a transit permit for the transportation of such body, shall, if the physician’s certificate or the permit accompanying such body, state the cause of death to have been a conta- gious or infectious disease, require that such body be in- closed in an hermetically sealed casket of metal or other indestructible material. § 173. To destroy adulterated wines. CuHapP.- 603, Laws 1887. An act to define pure wines, half wines, made wines and adulterated wines, and to regulate the manufacture and sale of half wines and made wines and to prohibit the manufacture or sale of adulterated wines within the state of New York. Passed June 18, 1887. Adulterated wines defined—may be seized and destroyed. $1. All liquors denominated as wine, containing alcohol, ‘*except such as shall be produced by the natural ferment- ation of pure undried fruit juice,” or compounded with distilled spirits, or by both methods, except as permitted by section two of this act, whether denominated as wine or by any other name whatsoever, in the nature of articles for use as beverages, or for compounding with other liquors intended for such use ; and all compounds of the In RELATION TO ADULTERATED WINES. 179 same with pure wine, and all preserved fruit juices com- pounded with substances not produced from undried fruit, in the character of, or intended for use as beverages, or for use in the fermentation or preparation of liquors in- tended for use as beverages, and all wines, imitation of wines or other beverages produced from fruit which shall contain alum, baryta, salts, caustic lime, carbonate of soda, carbonate of potash, carbonic acid, salts of lead, glycerine, salcylic* acid, or any other antiseptic coloring matter, other than produced from undried fruits, artificial flavoring, essence of ether, or any other foreign substance whatsoever which is injurious to health, shall be denomi- nated as adulterated wine, and any person or persons who shall manufacture with intent to sell, or shall sell, or offer to sell, any such wine or beverages, shall be guilty of a misdemeanor, and shall be punished by a fine not less than two hundred dollars, or more than one thousand dollars, or imprisonment in the county ‘jail for a term of not less than six months, or more than one year, or by both such fine and imprisonment in the discretion of the court, and shall be liable to a penalty of one hundred dollars for each gallon thereof sold, offered for sale or manufactured with intent to sell, and such wine or bever- age shall be deemed a public nuisance and forfeited to the state, and shall be summarily seized and destroyed by any Health Officer within whose jurisdiction the same shall be found, and the reasonable expense of such seizure and destruction shall be a county charge. Laws 1887, chap. 603, § 1. Pure wine defined. § 2. For the purpose of this act the words ‘‘ Pure wine,’’ shall be understood to mean the fer- mented juice of undried grapes or other undried fruit, pro- vided however, that the addition of pure sugar to perfect the wine, or the addition of pure distilled spirits to pre- serve it, not to exceed eight per centum of its volume, or the using of the necessary things to clarify and fine the wine, which are notinjurious to health, shall not be con- strued as adulterations, but such pure wine shall contain *§o in original. 180 THe LAW OF SUPERVISORS. at least seventy-five per centum of pure grape or other undried fruit juice. Laws 1887, chap. 603, § 2. “ Half wine” and ‘made wine’ defined—how stamped and labeled. § 3. For the further purpose of this act, should any person or persons manufacture with the intent to sell, or sell or offer to sell, any wine which contains less than seventy-five per centum and more than fifty per centum of pure grape or other undried fruit juice, and is otherwise pure, such wine shall be known, bonded, marked, labeled and sold as ‘‘half wine,’’ and upon each and every package of such wine which shall contain more than three gallons, there shall be stamped upon both ends of such package in black printed letters, at least one inch high and of proper proportions, the words ‘‘half wine” and upon all packages which shall contain more than one quart and up to three gallons, there shall be stamped upon each of such packages, in plain printed black letters at least one-inch high, and of proper proportions, the words ‘‘half wine,’’ and upon all packages or bottles of one quart or less, there shall be placed a label, securely pasted thereon, on which label the words ‘‘ half wine” shall be plainly printed in black letters at least one-fourth of an inch high and of proper proportions. Should any number of such pack- ages beenclosed in a larger package, as a box, barrel, case or basket, such outside package shall also receive the stamp “‘half wine,” the letters to be of the size ac- cording to the amount of such wine contained in such outside package, provided further, that any person or persons who shall sell, or offer for sale or manufacture with the intent to sell any wine which shall contain less than fifty per centum of pure grape or other undried fruit — juice, and is otherwise pure, such wine shall be known, stamped, labeled and sold as ‘‘ made wine,”’ and shall be stamped, marked and labeled in the same manner as pre- scribed in this section except the words shall be in this case ‘‘made wine.” Jbid., § 3. Penalties for selling unmarked, ete., ‘half wine” and In RELATION TO ADULTERATED WINES. 181 “made wine,” how collected and applied. § 4. If any person or persons shall sell or offer for sale, or manufac- ture with intent tosell, any wine of the kind and charac- ter as described in the third section of this act, which shall not be stamped, marked or labeled after the man- ner and mode therein prescribed, such person or persons shall be guilty of a misdemeanor, and shall be punished by a fine of not less than two hundred dollars or more than one thousand dollars for each and every offense, or by imprisonment in the county jail, not Iess than three months, or more than one year, or by both fine and im- prisonment in the discretion of the court, and in addi- tion thereto shall be liable to a penalty of one-half dollar for each gallon thereof so sold, offered for sale, or manu- factured with the intent to sell or offer for sale. All pen- alties imposed by this act may be recovered with costs of action by any person, in his own name, before any Jus- tice of the Peace in the county where the offense was com- mitted ; where the amount does not exceed the jurisdic- tion of said justice, or when such action shall be brought inthe city of New York, before any Justice of the district or of the city court of said city, and such penalties may be recovered in the like manner in any court of record in the state, but on recovery by the plaintiff in such case for a sum less than fifty dollars, the plaintiff shall only be entitled to costs to an amount equal to the amount of such recovery. It shall be the duty of any District Attorney in this state, and he is hereby required to prosecute or com- mence actions in the name of the people of this state, for the recovery of the penalties allowed herein, upon receiv- ing proper information thereof, and in all actions brought by such District Attorney, one-half of the penalty recov- ered shall belong to, and be paid over to the person or persons giving the information upon which the action is brought, and the other half shall be paid to the treasurer of the county in which said action is brought, within thir- ty days from the time of its collection, and the said one- half shall be placed to the credit of the poor fund of the 182 Tue Law OF SUPERVISORS. town or city in which the cause of action arose. All judgments recovered in pursuance of the provis- ions of this act, with the interest thereon, may be col- lected and enforced by the same means, and in the same manner as a judgment rendered in an action to recover damages for a personal injury. Two or more penalties may be included in the same action. Laws 1887, chap. 603, § 4. Medicated wines not embraced in this act. §5. The provisions of this act shall not apply to medicated wines, such as are put up and sold for medical purposes only. Ibid., § 5. Went into effect. §6. This act shall take effect on September first, eighteen hundred and eighty-seven. Ibid., § 6. § 174. Erection of town houses. The Electors of any town in this state, in which there shall not be a town house, at any annual town meeting, or at a special town meeting called by the Clerk, in the manner provided in sections seven and eight, of article one, titletwo, chapter eleven, part one, Revised Statutes, may, by a resolution, vote a sum of money for the pur- pose of a site for, and the building of a town house, or for the purpose of contributing to the erection of a build- ing for the joint use of such town and of an incorporated village within its limits, not exceeding in number of dollars twice the number of Electors in such town ; pro- vided that a notice of such intention to propose such a resolution shall have been posted within fifteen days of and not less than ten days preceding said meeting, in five of the public places in said town. Laws 1847, chap. 197, § 1, as amended by Laws 1884, chap. 456, § 1. Upon proper representation of the action of any town under the first section of this act, the Board of Supervis- ors of the county in which such town is situated, may cause the sum so voted, to be collected with the other expenses of said town ; or may require the question to be again submitfed to the Electors of said town, at the next VACANCIES IN OFFICE OF JUSTICE OF THE PEACE. 183 annual town meeting. Laws 1847, chap. 197, § 2. Conveyances for sites shall be made to the towns ; sites shall be purchased and houses erected by the Supervisor, Town Clerk and the Justices of the Town, and the house shall be controlled by the Supervisor and the Justices of the Peace, or a majority of them, and the Electors may, from time to time, vote such sum of money as may be necessary to keep any town house in repair and insured. Laws 1847, chap. 197, § 8, as amended by Laws 1879, chap. 267. Section three of said chapter one hundred and ninety- seven of the Laws of eighteen hundred and forty-seven, as amended by chapter two hundred and sixty-seven of the Laws of eighteen hundred and seventy-nine, shall not apply where the building is to be erected within the limits of an incorporated village, and such town shall contribute but a part of the expense of erecting such building. But such contribution by such town, shall be made upon such terms and conditions as to the use, management and control of the respective portions of such town house, for town and village purposes respectively to be agreed upon by and between the Board of Trustees of such village, and the Town Board of such town. Laws 1884, chap. 456, § 2. $175. To fill vacancies in office of Justice of the Peace. Whenever a vacancy shall occur in the office of a Jus- tice of the Peace of any town in this state, the Supervisor, Town Clerk, and remaining Justices of the Peace, or a majority of such officers, are hereby authorized by war- rant under their hands and seals, to appoint a suitable person to fill said vacancy, and the person so appointed, shall hold said office until the next annual town meeting in said town, unless the said appointment shall have been made to fill the vacancy of an officer whose term of office would have expired on the thirty-first day of December next succeeding such appointment ; in which case the term of office of the person so appointed shall expire on the thirty-first day of December next succeed- ing such appointment. And any person so appointed 184 THe LAW OF SUPERVISORS. may at once qualify and enter upon the discharge of the duties of his office. Laws 1859, chap. 476, § 1, as amended by Laws 1875, chap. 166; 1 R. S. (8th ed.) 895. Every such appointment shall be filed in the office of the Town Clerk, and a copy thereof in the office of the County Clerk before the person so appointed shall be authorized to act. Laws 1859, chap. 476, § 2. Form of warrant appointing Justice of the Peace to fill vacancy. STATE OF NEW YORK, County of Erie, SS Town of Colden. Whereas a vacancy exists in the office of Justice of the Peace of the Town of Colden aforesaid, by reason of the resignation (or refusal to serve, or death, or re- moval out of the town, as the case may be) of George W. Nichols, who was heretofore elected (or appointed) to such office in said town; now, therefore, we, the undersigned Supervisor, Town Clerk and remaining Jus- tices of the Peace of said town, by virtue of the power and authority vested in us by the statute in such case made and provided, do hereby, for the purpose of filling said vacancy, nominate and appoint Christian Miller of said Town of Colden, a Justice of the Peace in and for said town, whose official term will expire at the next annual town meeting in said town, as provided by law (or in case he is appointed to fill a term expiring with the thirty-first day of December then say ‘‘ will expire on the thirty-first day of December next”). In witness whereof we have hereunto set our hands and seals this thirtieth day of June, 1888. WILLIAM CURRIER, Supervisor of the Town of Colden. A.C., Town Clerk of Town of Colden. te L. D., Justices of the Peace of Town of Colden. . VACANCIES IN OFFICE OF INSPECTORS OF ELECTION. 185 § 176. To fill vacancies in office of Inspectors of Election. In case any of the persons assigned or selected as In- spectors shall not be in office at the time appointed for holding any election, their successors shall be such Inspect- ors ; and in case of a vacancy in any of the said offices, or of the absence or inability of any officer to act as In- spector at any election, by which the number of Inspectors for a district shall be reduced below three, the Supervisor of the town, or in case of a vacancy in his office, or his absence or inability, the Town Clerk, shall designate so many of the Justices of the Peace or Commissioners of Common Schools, or of the Commissioners of Highways of the town, as shall be necessary to supply such numbers in the order in which they are herein named, who shall be Inspectors of such election for such district. Laws 1842, chap. 130, title ITI., § 20; 1R. 8. (8th ed.) 415. In case any such Inspectors in any town shall not be chosen or appointed, as provided for in the preceding section, or any of them shall be absent, or shall have ceased to be a resident of such district, or unable to attend and hold any election in their district, the Supervisor, Towrt Clerk and Justices of the Peace in such town, shall meet at such time and place as shall be appointed by the Supervisor, or in case of his absence or inability, or a vacancy in his office, by the Town Clerk, and shall desig- nate and appoint so many Electors of such district as shall be necessary to supply such vacancy, to be Inspect- ors of Election for such district, and shall file a certificate of such appointment in the office of the Town Clerk ; and the persons thus appointed shall be Inspectors of such election for such district, and all vacancies which may exist or occur in the office of Inspector of Election in any city. shall be filled by the Common Council of such city. Ibid., § 22. Form of appointment. State or New YORK, { a Town of Aurora. . Whereas a vacancy exists in the office of Inspector of Election in the first election district in the Town of Aurora 186 Tur Law OF SUPERVISORS. by reason of a failure of said town to elect such Inspect- or (orby the death, removal from the district, or inability of John M. Wiley, to serve, as the case may be). Now, therefore, we do hereby designate and appoint Charles Peck an Inspector of Election, in and for the first election district of said town, to fill the vacancy created as afore- said. Dated Aurora, October 1888. FRANK R. WHALEY, Supervisor of Town of Aurora. BK. D., Town Clerk of Town of Aurora a ® Justices of the Peace GH of Town of Aurora. Such appointments must be filed in the office of the Town Clerk. SUPERVISOR, JUSTICES OF THE PEACE, TOWN CLERK, AND HIGHWAY COMMISSIONERS. §177. In relation to water works companies. Whenever any persons, to the number of seven or more, shall organize for the purpose of forming a water works company to supply water to any of the towns or villages and the inhabitants thereof in this state, they shall present to the town or village authorities an application setting forth the persons who propose to form said com- pany, the proposed capital stock thereof, the proposed number and character of the shares of such capital stock, and the sources from which water is intended to be supplied. Such application shall be signed by the persons who propose to form said company, and shall contain a request that the authorities of such town or village shall consider the application to supply such town or village of this state or the inhabitants thereof with pure and wholesome water. Said authorities shall, within thirty days of the presentation of said applica- tion, determine by vote whether said application shall be granted ; and the authorities of any town or village in this state are hereby authorized and empowered to make AS TO WATER Works CoMPANIES. 187 such determination, and when the same shall be made, to sign a certificate to that effect and immediately trans- mit the same to the persons making such application, or either of them. If such application is granted in whole, or in part, duplicate certificates of such determination shall be filed in the office of the Clerk of said town or village, and in the office of the County Clerk of the county in which the town or village granting such appli- cation shall be situated. The persons named in such application shall thereupon meet and organize as a water works company under such corporate name as they may select. They shall file in the office of the Secretary of State a certificate of such organization. Said cer- tificate shall recite the fact of such application and deter- mination, and shall contain the name of the corporation, the names of the members of said corporation and their residences, the amount of capital stock, the location of the office of said company. Such certificate shall be subscribed by the persons by whom such application was made and sworn to bya majority of such persons. Upon the filing of said certificate said water works company shall be known and deemed a body corporate, and shall be capable of suing and being sued by the corporate name which they shall have selected in any of the courts of this state, and shall have the right to lay and maintain their pipes and hydrants for delivering and distributing water in any street, highway or public place of such town or village for which consent shall have been given as here- tofore provided. The capital stock of said company shall be paid in the manner and within the time pro- vided by the ‘‘ Act to authorize the formation of corpo- rations for manufacturing, mechanical or chemical pur- poses” passed February seventeenth, eighteen hundred and forty-eight, and the several amendments thereto, and the stockholders of said companies shall be per- sonally liable for the debts of said companies in the same manner and to the same extent as is provided by said act and the amendments thereto, but they shall not be liable for any debt secured by a mortgage. The authori- 188 Toe LAW OF SUPERVISORS. ties in this act authorized and referred to are as follows, to wit: For any incorporated village, the Board of Trustees thereof and the Supervisor of the town ; and for any town, the Supervisor, Justices of the Peace, Town Clerk and Highway Commissioners thereof. And all acts to be done under this act by such authorities may be done by a majority of their number at a meeting duly called or held. Laws of 1873, chap. 787, § 2, as amended by Laws 1881, chap. 213, § 1. § 178. Repairing or rebuilding bridges. Incase any road orroads, bridge or bridges, shall be dam- aged or destroyed by the elements or otherwise, after any town meeting shall have been held, and since the fifteenth day of February, A. D. eighteen hundred and sixty-five, then and in that case it shall be lawful for the Commission- er or Commissioners of Highways, by and with the consent of the Board of Town Auditors or a majority thereof of the town or towns, in which such road or roads, bridge or bridges shall be situated, to cause the same to be im- mediately repaired or rebuilt, although the expenditure of money required may exceed the sum now authorized to be raised by law upon the taxable property of the town or towns, for such purposes ; and the Commission- ers of Highways shall present the proper vouchers for the expense thereof to the Town Auditors at their next annual meeting, and the said bill shall be audited by them, and the amount audited thereon shall be collected in the same manner as amounts voted at Town Meetings as now required. The Commissioners acting under this act shall be entitled to receive for each day’s service ac- tually rendered, two dollars. Laws 1858, chap. 103, §1, as amended by Laws 1865, chap. 442; 2 R. 8. (8th ed.) 153. {t was held under this act that when a bridge was damaged by the elements or otherwise, after any town meeting, the Commissioner, with the consent of the Town Board of TownAuditors, may immediately cause it to be repaired, though the expenditure exceed $250. Buyce v. Buyce, 481 Hun, 433. REPAIRING OR REBUILDING BRIDGES. 189 And that the question as to whether or not the bridge became damaged after the town meeting was to be deter- mined by the Commissioner and the Board of Town Auditors, and that the person contracting with the Com- missioner for the performance of the work, was not re- quired to investigate as to the time at which the bridge became damaged, but only to see that the consent of the Town Auditors had been given. Jbid. And an action will lie by the contractor against the Commissioner to collect contract price of repairs. did. Where a highway bridge in a town was carried away by a flood shortly prior to the town meeting it was held that the Commissioners of Highways of the town, with the consent of the Board of the Town Auditors, were au- thorized by this statute to enter into a contract for re- building the bridge. Boots v. Washburn, 79 N. Y. 207. And it was also held that the Commissioners were authorized to contract to pay for the bridge upon the completion thereof, although they had no money in their hands for that purpose. did. In an action upon such a contract, it appeared that the consent of the Board of Town Auditors to the rebuild- ing of the bridge was given at its regular annual meet- ing, when all the members of the Board were present ; it did not appear whether or not the consent was in writing and it was held that, if requisite, it would be assumed that a record of the consent was properly made. bid. The fact that at the time a contract was actually let one of the Commissioners was absent is of no consequence where he subsequently joins in the written contract. Lbid Special meeting of Town Auditors. The Board of Town Auditors may be convened in special session by the Supervisor, or in his absence the Town Clerk, upon the written request of any Commissioner of Highways, and the bills and expenses incurred in the erection or repair of any such roads or bridges, may then be pre- sented to and audited by such Board of Town Auditors ; 190 THE LAW OF SUPERVISORS. and the Supervisor and Town Clerk shall issue a cer- tificate, to be subscribed by them, setting forth the amount so audited and allowed, and in whose favor, and the nature of the work done and material furnished ; and such certificate shall bear interest from its date, and the amount thereof, with interest, shall be levied and collected in the same manner as other town expenses. Laws 1858, chap. 103, § 2. How account to be presented. No account for services rendered or material furnished, according to the provis- ions of this act, shall be allowed by such Board unless the same shall be accompanied by the affidavit of the party or parties performing such labor or furnishing such material, nor unless the Commissioner or Commissioners shall certify that such service has been actually performed and such material was actually furnished and that the same was so performed or furnished by the request of said Commissioner or Commissioners, and such Board of Auditors may require and take such other proof as they may deem proper to establish any claim for such labor and material and the value therefor. Ibid., § 3. Consent of Town Board. STATE oF NEW YORK, County of Erie, { Town of Aurora. At a special meeting of the Board of Town Auditors of the Town of Aurora in said county, called by the Super- visor (or Town Clerk) thereof, held on June 4, 1887, the following preamble and resolution were duly adopted : Whereas the bridge known as Wiley’s Bridge over the Cazenovia Creek in the Town of Aurora, was destroyed by a freshet on May 10, 1887, after the annual town meeting in said town was held, and there not being suf- ficient moneys in the hands of the Commissioners of High- . ways to rebuild the same, and said bridge being necessary for public use, therefore be it Resolved, That we do hereby consent that the Com- REPAIRING AND REBUILDING BRIDGES. 191 missioners of Highways of the Town of Aurora, cause said bridge to be immediately rebuilt according to law. FRANK 8. WHALEY, Supervisor of Town of Aurora. C, D., Town Clerk of said town. P. G., | = a Justices of the Peace C. L. J of said town. Town oF AURORA, Town Clerk’s office. } I hereby certify that I have compared the above tran- script of the proceedings of the Board of Town Auditors of said town, at a special meeting held on the fourth day of June, A. D. 1887, with the original record thereof in my office, and that the same is a correct transcript there- from and of the whole of such original. Given under my hand this 4th day of June, 1887. C. D., Town Clerk Town of Aurora. As the Commissioners of Highways are not members of the Board of Town Auditors, it is proper that they should be furnished with a certified copy of such resolution for their own protection. While it may not be required by any provision of law that the action of the Board of Town Auditors be report- ed to the Board of Supervisors, still, as a matter of pre- caution it is well todoso. It is claimed that such ac- tion is warranted by Laws of 1885, chap. 326. In case it bedone, the following form will be sufficient for that pur- pose : To the Board of Supervisors of Erie County: The undersigned Supervisor of the Town of Aurora, herewith presents a certified copy of certain proceedings of the Board of Town Auditors of the town of Aurora, in relation to rebuilding a bridge in said town. (ere in- sert said copy.) That under the consent thus given the Commissioner 192 THE Law OF SUPERVISORS. of Highways of the town, pursuant to the statute in such case made and provided, rebuilt said bridge and subse- quently presented his account therefor and vouchers to said Board of Town Auditors for audit, and the said Board audited the same as appears by a certified copy of their proceedings auditing the same and which is as follows : At the annual meeting of the Board of Town Auditors of the town of Aurora, held at the village of East Aurora, in said town on day of A. D. 1888.° The account and expenses of Commissioner of Highways of said town, incurred under the consent of this Board, given June 4, 1887, are hereby audited and allowed at the sum of and payable to the persons named therein, as follows: Nature of Work Done and Ma-| Amount | Amount Date. In Whose Favor. . terials Furnished. Claimed. |Allowed, 1888. July |Kellogg Bridge Co.|Iron Bridge. $800 00) $800 00 25 days labor erecting same, “ 28/A. B. Kellogg. at $3. 75 00) = ='75 00 ge H. J. Hurd. 1000 feet plank, $20. 20 00 20 00 Masonry building abut- “ P. I. Straub. ments. 105 00} 105 00 Total. $1000 00/$1000 00 FRANK 8. WHALEY, Supervisor Town of Aurora, Cc. D., Town Clerk. P.G., a 8 Justices of the Peace. C. L., County oF ERIE, Town of Aurora. } an We hereby certify that we have compared the fore- going transcripts of the proceedings of the Board of Town Auditors of the Town of Aurora, at a meeting held on the day of 1888, with the original thereof on record in the Town Clerk’s office of said town, and that BorrowinGc Money FoR Highway PurRPosES. 193 the same is a correct transcript thereof, and of the whole of such original. Dated Aurora, 1888. FRANK 8. WHALEY, Supervisor. Cc. D., Town Clerk. In connection with the foreging, I respectfully submit the following resolution, and move its adoption : Resolved, That the sum of one thousand dollars be, and the same is hereby levied upon the taxable property of the Town of Aurora, and that orders: therefor be drawn payable to the several persons specified in said Auditor’s certificate, for the amounts set opposite their respective names. All which is respectfully submitted. Dated 1888. FRANK 8. WHALEY, Supervisor Town of Aurora. And the Board of Supervisors having no discretion in the matter must order the amount thereof levied and collected. § 179. Borrow money for highway purposes. The Boards or Supervisors of each county in this state, except New York and Kings, shall have power at their annual meeting, or at any other regular meeting, to authorize the Supervisor of any town in said county, by and with the consent of the Commissioner or Com- missioners of Highways, Town Clerk and Justices of the Peace of such town, to borrow such sum of money, for and on the credit of such town, not exceeding, however, in any year the amount of one- half of one per centum on the assessed valuation of the taxable property of the town for such year, as the said town officers may deem necessary to build or repair any road, roads, bridge, or bridges in such town, or which shall be partly in such town and partly in an adjoining town, or to pay any existing debt incurred in good faith 12 194 THe LAW OF SUPERVISORS. by or on behalf of such town for such purpose, before the passage of this act ; and the said Board of Supervisors shall have power to prescribe the form of obligation to be issued on any such loan, and the time and place of payment, the time not to exceed ten years from the date of such obligation and the rate of interest thereon not exceeding six per centum per annum. And the said Board of Supervisors have power, and it shall be their duty, from time to time, as the said obli- gations become due and payable, to impose upon the tax- able property of such town sufficient tax to pay the said principal and interest of such obligations according to the terms and conditions thereof. The town officers hereinbefore mentioned shall meet at the Town Clerk’s office in the town for which they are elected or appointed, on the first Monday of March in each year, at ten o’clock in the morning, to determine what amount, if any, shall be borrowed on the credit of such town for the purposes contained in the first section of the act hereby amended, and for what roads or bridges such amount shall be borrowed or appropriated, and for the same purposes a meeting or meetings of the said officers may and shall also be held upon the call of the Town Clerk, whose duty it shall be to call the same within one week after the receipt of a written request of twelve tax-payers of the town, therefor; and any such meeting may be adjourned from time to time, either for want of a quorum or in default of any final determina- tion of any question arising concerning such appropria- tion ; but no such meeting shall be held subsequent to the first Monday of October in each year. The bonds authorized by this act shall have indorsed thereon a certificate signed by the Town Clerk of the town for which they are issued, to the. effect that such bonds are issued with the consent of the town officers herein mentioned, at a meeting, the date of which shall be mentioned in such certificate. The Town Clerk of any town on account of which such bonds are issued, shall keep a record showing the date BorrowinG Money ror Highway Purposes. 195 and amount of such bonds, the time and place when the same are made payable, and the rate of interest thereon. Such bonds shall be delivered to the Supervisor of the town, who shall dispose of the same for not less than the par value thereof, and pay the proceeds thereof to the Commissioner or Commissioners of Highways of such town, to be used by him or them for the purposes for which the same were appropriated ; but not more than five hundred dollars of such proceeds shall be expended upon one road or bridge except under and in pursuance of a contract to be made by the contractor with the Com- missioner or a majority of the Commissioners of High- ways of such town, for the construction or repair of such road or bridge, which contract shall be approved by a majority of the Town Auditors of such town, neither of whom shall be interested in such contract. Any amount borrowed and appropriated pursuant to the provisions of this act, for the repair or construction. of any road or bridge in any town, and which it shall not be necessary to use for such purpose, shall be applied by the Commissioner or Commissioners of Highways to the repair of any other road or bridge in such town. Laws of 1869, chap. 855, as amended by Laws 1874, chap. 260, as amended by Laws 1882, chap. 250. Where the specified officers of a town have met within the time limited, and have determined the amount to be borrowed, and the Board of Supervisors has conferred the requisite authority to issue bonds of the town for the amount, no subsequent meeting of said officers is neces- sary for the purpose of authorizing or consenting to such issue. People v. Tompkins, 64 N. Y. 53. Where a Supervisor of a town is required by the Board to execute the bonds, it is no excuse fora refusal that the certificate of consent required by the above section to be indorsed by the Town Clerk upon the bonds is notin due form, as a proper certificate can be added, as well after, as before the execution ; and it is the duty of the Super- visor to see that any error is rectified. Ibid. Record of town business should be kept. In relation 196 Tue LAW OF SUPERVISORS. to the issue of bonds as well as to all other official town business it is essential that a proper record should be kept in the town record books, of all meetings of town officers when any town business is transacted. Question, how brought before Supervisors. Under this section it is competent to bring the matter before the Board of Supervisors either by petition or report from the Supervisor of the town, wishing to borrow money. The following form of report may be used for such purpose : Supervisors Report. To the Board of Supervisors of Erie County : The undersigned Supervisor of the Town of Aurora, in said county, respectfully represents, That at a meeting of the Supervisor, Town Clerk, Com- missioners of Highways and Justices of the Peace, of said Town of Aurora, held at the office of the Town Clerk, in said town on the first Monday of March, 1887, pursuant to the provisions of Laws 1869, chapter 855, as amended by Laws 1882, chapter 250, the following proceedings were had, to wit: At the annual meeting of the Supervisor, Town Clerk, Commissioners of Highways and Justices of the Peace of the Town of Aurora, in the County of Erie, held at the office of the Town Clerk of said town, on March Ist, 1887, all of said officers being’ present (except one Justice of the Peace who was absent from the town). Said meeting organized by the election of Frank S. Whaley as chairman, and Charles Devine, as secretary. On motion the following resolution was unanimously adopted : Resolved, That we hereby request the Board of Super- visors of the County of Erie to authorize the Supervisor of the Town of Aurora, to borrow four hundred dollars, for and on. the credit of said town, for the purpose of repairing the road running from East Aurora to Wales Centre and to issue the bonds of said town therefor, Borrowinc Money For HicHway Purposes. 197 payable in one year, at five per cent. interest, at the Manufacturers’.and Traders’ Bank in the City of Buffalo, we deeming the same necessary and hereby consent thereto. ; Said meeting then adjourned. FRANK 8. WHALEY, Supervisor Town of Aurora. CHARLES DEVINE, Town Clerk. T,-2i, Commissioner of Highways. B. D., Y.L., } Justices of the Peace. R. J., Town Clerk’s office. I hereby certify that I have compared the forgoing transcript of the proceedings of the Town Officers of said town, with the original proceedings of record in this office and that the same is a correct transcript therefrom and of the whole thereof. Dated October 1887. Town OF AURORA, } se CHARLES DEVINE, Town Clerk Town of Aurora. I further represent that the assessed valuation of the taxable property of said town for the year 1887 is $2,000,000. 00. The undersigned, therefore, requests that the Supervisor of said Town of Aurora be authorized, pursuant to said statute and of such resolution and consent, to borrow the sum of four hundred dollars for and on the credit of said town, and that your body will prescribe the form of the obligation to be issued for such loan and the time and place of payment. Dated October, 1887. FRANK 8. WHALEY, Supervisor of Town of Aurora. Such a report is usually referred to the committee on ‘‘ Legislation” or ‘‘ Laws,” as great care should be ex- ercised in preparing the proper resolution granting the prayer of the report. 198 Tue LAW OF SUPERVISORS. SUPERVISOR, JUSTICES OF THE PEACE AND COMMISSIONERS OF HIGHWAYS. § 180. As to fires in the woods. Whenever the woods in any town shall be on fire, it shall be the duty of the Justices of the Peace, the Supervisor and the Commissioners of Highways of such town, and of each of them, to order such and so many of the inhabitants of such town liable to work on the highways, and residing in the vicinity of the place where such fire shall be, as they shall severally deem necessary, to repair to the place where such fire shall prevail, and there to assist in extinguishing the same, or in stopping its progress. 3R.S. (8th ed.) 2342, g 9, The other provisions of the Revised Statutes imposing penalties and forfeitures for negligently setting fires and for refusing to obey orders to aid in suppressing fires, have been repealed. Laws 1886, chap. 593. A person who, having been lawfully ordered to repair to the place of a fire in the woods and assist in extinguishing it, omits without lawful excuse to comply with the order, is guilty of a misdemeanor. Penal Code, § 414. SUPERVISOR AND JUSTICES OF THE PEACE. Control of Town House. Town houses erected by towns shall be controlled by the Supervisor and the Justices of the Peace of the town or a majority of them. Laws 1847, chap. 197, as amended by Laws 1879, chap. 267, 1 R. S. (8th ed.) 924. The above provision shall not apply where the building iserected within the limits of an incorporated village within a town. In such case the control of the town house shall be subject to the agreement of the village and town authorities. Laws 1884, chap. 456, § 2. § 182. Lease of buildings to G. A. R. Posts, etc. Any county, city, town or village in the State of New Town SEALER OF WEIGHTS AND MEASURES. 199 York is authorized to lease or grant the use of, for a period not exceeding five years, to any post or posts of the Grand Army of the Republic or other veteran organiza- tion of honorably discharged soldiers, sailors or marines of the late war, any public building or any part there- of belonging to such county, city, town or village, except school-houses, in actual use as such, without expense, or at a nominal rent to be fixed by the Board of Supervisors of such county, or the Board of Aldermen of such city, or the Board of Trustees of such village, or Board of Town Officers of such town having charge of such buildings. Laws 1886, chap. 644, § 1, as amended by Laws 1888, chap. 62, § 1. All acts or parts of acts inconsistent with the provis- ions of this act are hereby repealed. Laws 1888, chap. 63, § 2. § 183. Appointment of Town Sealer of Weights and Measures. A Town Sealer of Weights and Measures shall be appointed by the Supervisor and Justices of the Peace of the town, and shall hold his office during their pleasure. Laws 1851, chap. 134, § 22. Tn case there is no Town Sealer of Weights and Measures then the County Sealer of Weights and Measures shall perform the duties of Town Sealer and shall be entitled to the fees pertaining to said office. L. 1851, chap. 134, § 21, as amended by Laws 1863, chap. 77, and Laws 1865, chap. 666. Form of order appointing Sealer. State or New YORK, County of Erie, Ss Town of Elma. We, the undersigned Supervisor and Justices of the Peace (or a majority of the Justices of the Peace, the others having been notified but failed to attend) of the Town of Elma, in the County of Erie, having met and deliberated on the subject of this order, do by virtue of the power and authority vested in us by the statute in such case made and provided, hereby appoint James Graham 200 Tue Law OF SUPERVISORS. of said town, Sealer of Weights and Measures for said town. In witness whereof we have hereuntc set our hands this fourth day of June, A. D. 1888. MYRON H. CLARK, Supervisor Town of Elma. A. B., C. D., } Justices of the Peace. E. F., § 184. Appointment of firemen. The Supervisors and Justices of the Peace for the time being, of any town in this state, may appoint in writing any number of inhabitants of the said town, not exceed- ing forty to each fire engine, which may be procured for the extinguishment of fires in said town; the persons so appointed shall be firemen of said town, but no such com- pany shall be formed pursuant to this act in any incor- porated city or village, and all such firemen and all the members of any fire company or of any hook and ladder company, appointed pursuant to any law of this state, shall, while they are such firemen or members, be exempt from serving on juries in courts of record, and, except in cases of war, insurrection or invasion, from militia duty. Laws of 1832, chap. 222, as amended by Laws 1845, chap. 244; 1 R. S. (8th ed.) 923, § 1. Order appointing firemen. State or NEw YorK, County of Erie, Ss. Town of Clarence. We, the undersigned Supervisor and Justices of the Peace (or a majority of the Justices of the Peace, the others having been duly notified but failed to attend) of the Town of Clarence, in the County of Erie, having met and deliberated on the subject of this order, do by virtue of the power and authority vested in us by law, hereby appoint John Bernheisel, an inhabitant of said town, a Fireman in and for the said Town of Clarence, and a member of Engine Company No. 1. APPOINTMENT OF COLLECTOR. 201 Given under our hands this 9th day of June, 1888. J. F. HUMBERT, Supervisor of Town of Clarence. A. B., } C. D. Justices of the Peace. E. F., All vacancies which may at any time happen in said companies by death, resignation or otherwise, shall from time to time be filled by the Supervisors and Justices aforesaid. Laws 1832, chap. 222, § 4. § 185. Appointment of Collector. If any person chosen or appointed to the office of Col- lector of any town or ward in this state, shall refuse to serve, or shall die, resign, or remove out of the town or ward, before he shall have entered upon or completed the duties of his office, or shall be disabled from completing the same by reason of sickness or any other cause, the Supervisor and any two Justices of such town or ward, shall forthwith appoint a Collector for the remainder of the year, who shall give the like security, and be subject to the like duties and penalties, and have the same pow- ers and compensation as the Collector in whose place he was appointed ; and the Supervisor shall forthwith give notice of such appointment to the County Treasurer. But such appointment shall not exonerate the former Collector or his sureties from any liability incurred by him or them. 2R.S%. (8th ed.) 1118, § 11. Form of order appointing a Collector. STATE oF NEw YoRK, County of Erie, SS Town of Holland. Whereas a vacancy has occurred and exists in the of- fice of Collector of Taxes of the Town of Holland, by rea- son of the resignation (or death, or refusal to serve, or removal from the town, as the case may be) of John A. Morey, heretofore elected to said office in said town: Now, therefore, we, the undersigned, the Supervisor and two of the Justices of the Peace of said town, by 202 Tue Law OF SUPERVISORS. virtue of the power and authority vested in us by the statute in such case made and provided, do hereby, for the purpose of filling such vacancy, appoint Dr. A. C. Osborne of said town, Collector of said town and who shall hold said office for the remainder of the year and until his successor shall be elected at the next annual town meeting of said town, as provided by law. In witness whereof we have hereunto set our hands this third day of July, A. D. 1888. JACOB WURST, Supervisor of Town of Holland. a 7 i Justices of the Peace. Notice to County Treasurer of such appointment. To Philip Steingoetter, County Treasurer of Erie County: I hereby notify you that on the third day of July, A. D. 1888, Dr. A. C. Osborne of the Town of Holland, was duly appointed Collector of Taxes in and for said town by the undersigned Supervisor and two of the Justices of the Peace of said town, to fill a vacancy occasioned by the resignation of John A. Morey, as Collector of said town and that said Osborne upon properly qualifying will be entitled to hold said office for the remainder of the year, as provided by law. Dated, July 3, 1888. JACOB WURST, Supervisor of Town of Holland. Warrant to new Collector. If a warrant shall have been issued by the Board of Supervisors, prior to any appointment under the last section, the original war- rant, if the same can be obtained, shall be delivered to the Collector so appointed, and shall be considered as giving him the same powers as if originally issued to himself; but if such warrant can not be obtained, a new one shall be made out by the Clerk of the Board of Supervisors of the county, which shall be di- rected to the Collector so appointed, and upon every such appointment the Supervisor of the town or ward, if APPOINTMENT OF EXCISE CoMMISSIONERS. 908 he shall think it necessary, may extend the time limited for the collection of the taxes for a period not exceeding thirty days, of which extention he shall forthwith give notice to the County Treasurer. 2.58. (8th ed.) 1118, g 12. § 186. To appoint Commissioners of Excise to fill vacancies. Vacancies occurring in said Boards, from any cause, shall be filled by appointment by the Supervisor and Jus- tices of the Peace of said town, or a majority of them, until the next annual town meeting, when such vacancy shall be filled by election. Laws 1874, chap. 444, § 1; 3R. 8. (8th ed.) 2339. Order appointing Excise Commissioners. Strate oF New York, | County of Erie, Ss. Town of Marilla. Whereas a vacancy has occurred and now exists in the office of Commissioner of Excise of the Town of Marilla, by reason of the death (or resignation, or refusal to serve, or removal from the town, as the case may be) of Louis Bullis, heretofore elected to said office in said town ; Now, therefore, we the undersigned, Supervisor and the Justices of the Peace of said town, (or a majority of the Justices of the Peace, the other Justices being absent from the town) by virtue of the power and authority vested in us by the statute in such case made and pro- vided, do, for the purpose of filling such vacancy, hereby appoint R. D. Smith of said town, a Commissioner of Excise and who shall hold said office until the next annual town meeting in said town, as provided by law. In witness whereof, we have hereunto set our hands this second day of July, A. D. 1888. ASA B. SMITH, Supervisor of Town of Marilla. Justices of the Peace. 8187. As to sale of railroad stock owned by town. ; The several towns, cities and villages in the Counties of 204 Tue LAW OF SUPERVISORS. Chenango, Delaware, Madison, Ulster, Sullivan, Cort- land, Orange, Cayuga and Oswego, the Towns of Pitts- field and Edmeston, in the County of Otsego, and the Town of Vienna, in the County of Oneida, are authorized and empowered to sell and transfer all or any portion of the capital stock held by them in certain railroad com- panies, etc. Laws 1880, chap. 21, § 1,as amended by Laws 1881, chap. 308. But no such sale and transfer shall be made by the Commissioner or Commissioners, or the Supervisor act- ing as such Commissioner of any town, without the approval and consent in writing of a majority of the Justices of the Peace in all towns where the Supervisor acts as such Commissioner, and in all other towns, of the Supervisor and a majority of the Justices of the Peace of such towns, etc. Laws 1880, chap. 21, § 2. SUPERVISOR, TOWN CLERK AND ASSESSORS. § 188. Jury list, how made in towns. The Supervisor, Town Clerk and Assessors of each town, must meet on the first Monday of July, in the year one thousand eight hundred and seventy-eight and in each third year thereafter, at a place within the town, appointed by the Supervisor, or in case of his absence or of a vacancy in his office, by the Town Clerk, for the purpose of making a list of persons to serve as Trial Jurors for the then ensuing three years. If they fail to meet on the day specified in this section, they must meet as soon thereafter as practicable. Code of Civil Pro- cedure, § 1035. § 189. How made in certain cities. Each ward of the City of Utica is considered a town for the purposes of this article, and the Supervisor and Assessor of that ward must execute the duties of the Supervisor, Town Clerk and Assessors of a town as pre- scribed in the foregoing [following] sections of this article, except that a duplicate of the list of Jurors made by them must be filed in the office of the Clerk of the city: Lists or Trran Jurors. 205 In the City of Albany the Recorder of said city shall perform the duties imposed by this title upon the Super- visor, Town Clerk and Assessors of towns. In the County of Albany Grand Jurors shall hereafter be drawn from the box containing the names of Petit Jurors selected for said county in the same manner as Petit Jurors, and hereafter no separate list of Grand Jurors shall be prepared for said county. In each of the other cities of the state the like duties must be performed by the officers and in the manner prescribed by law. A city wherein two or more As- sessors are elected for the entire city is considered a town for the purposes of this article, except where the officers who are to perform the duties of the Supervisor, Town Clerk or Assessor, as prescribed in this article, are specially designated by law. Code of Civil Procedure § 1041, as amended by Laws 1881, chap. 532. In the City and County of New York, trial jurors must be selected by the Commissioner of Jurors, who must alone decide upon their qualifications. Code Civil Pro- cedure, §§ 1089, 1090, Laws 1882, chap. 410, § 1663. In the County of Kings, trial jurors must be selected by the Commissioner of Jurors, who may decide upon their qualifications and exemptions as prescribed in this article. Code of Civil Procedure, §§ 1131, 1182, 1135, 11387. The Assessors in the City of Brooklyn, and of each town inthe County of Kings, or a majority of them, must, after the first day of May and on or before the first day of July in each year, return to the Commissioner of Jurors, a written list under his or their hands, contain- ing the names of all persons in the city or town, as the case may be, who are liable to serve as trial jurors, and stating the occupation, place of business and residence of each person, so far as those particulars can be conven- iently ascertained. The omission to include the names of one or more persons so liable, or any other error or defect in a list, does not affect the validity of any pro- ceeding prescribed in this article. In making the re- 206 THe Law OF SUPERVISORS. turns or selection, the Assessors and the Commissioners respectively must take the names of those persons only whom they believe to be qualified to serve, and not ex- empt from service as trial jurors. Code of Civil Proced- ure, § 1135. The provisions of the statute as to the time of making jury lists is directory merely and if not accurately com- plied with, will not render the jury illegal. Ferris v. People, 35 N. Y. 125; Friery v. People, 2 Abb. Ct. App. Dec. 216. § 190. Lists, how made. At the meeting specified in the last section [Code of Civ. Pro., § 1035] the officers present must select from the last assessment roll of the town and make a list of the names of all persons whom they believe to be quali- fied to serve as trial jurors as prescribed by the last article. Code of Civil Procedure, § 1036, as amended by Laws 1877, chap. 416, § 1. § 191. Persons disqualified to serve as jurors. Each of the following officers is disqualified to serve as trial jurors : 1. The Governor, the Lieutenant-Governor, the Gov- ernor’s Private Secretary. 2. The Secretary of State, the Comptroller, the State Treasurer, the Attorney-general, the State Engineer and Surveyor, a Canal Commissioner and Inspector of State Prisons, a Canal Appraiser, the Superintendent of Public Instruction, the Superintendent of the Bank De- partment, the Superintendent of the Insurance Depart- ment, and the deputy of each officer specified in this sub-division. 3. A member of the legislature, during the session of the house of which he is a member. 4. A judge of a court of record, or a Surrogate. 5, A Sheriff, Under-Sheriff or Deputy-Sheriff. 6. The Clerk or Deputy-Clerk of a court of record. Code of Civil Procedure, § 1029. Persons EXEMPT FROM JURY SERVICE. 207 § 192. Persons exempt from service as jurors. Each of the following persons, although qualified, is entitled to exemption from service as a trial juror, upon his claiming exemption therefrom : 1. A clergyman, or a minister of any religion, officiat- ing as such and not following any other calling. 2. A resident officer of, or an attendant, assistant, teacher or other person actually employed in a state asylum for lunatics, idiots or habitual drunkards. 3. The agent or warden of astate prison, the keeper of a county jail, or a person actually employed in a state prison or county jail. 4, A practicing physician or surgeon, having patients requiring his daily, professional attention. 5. An attorney or counselor at law regularly employed in the practice of the law as a means of livelihood. 6. A professor or teacher in a college or academy. 7. A person actually employed in a glass, cotton, linen woolen or iron manufacturing company, by the year, month or season. 8. A superintendent, engineer, or collector, on a canal authorized by the laws of the state, which is actually constructed and navigated. 9. A master engineer, assistant engineer, or fireman actually employed upon a steam vessel making regular trips. 10. A superintendent, conductor or engineer, employed by a railroad company, other than a street railroad comp- any or an operator or an assistant operator employed by a telegraph company, who is actually doing duty in an office, or along the railroad or telegraph line of the com- pany by which he is employed. 11. An officer, non-commissioned officer, musician or private of the national guard of the state, performing military duty, or a person who has been honorably dis- charged from the national guard, after five years’ service in either capacity. 12. A person who has been honorably discharged from the military forces of the state, after seven years faithful 208 Tur LAw OF SUPERVISORS. service therein. But inorder to entitle a person to exemp- tion under this subdivision his service must have been preformed before the 23d day of April, 1862, either asa general or staff-officer or as an officer, non-commis- sioned officer, musician or private in a uniformed battalion company or troop of the militia of the state, and armed, uniformed and equipped according to law; ora portion thereof, during that period and in that capacity, and the remainder since the 23th day of April, 1862, as a member of the national guard of the state. 13. A member of a fire company, or fire department duly organized according to law of the state, and per- forming his duties therein, or a person who, after faith- fully serving five successive years in such a fire company, or fire department, has been honorably discharged there- from. 14. A duly licensed engineer of steam boilers, actually employed as such. 15. A person otherwise specially exempted by law. Code of Civil Procedure, § 1030, as amended by Laws 1879, chap. 542, and Laws 1883, chap. 400. § 193. Other persons specially exempted by law. The superintendent and each of his deputies and all persons employed in attendance upon any works for the manufacture of coarse salt shall be exempt from serving on juries, * * andthe commission or appointment in writing of any such officer or deputy, and the certificate of any owner or agent of any coarse salt manufactory, that any person is employed or engaged in attending upon such manufactory, shall be evidence of the facts stated therein. Laws 1859, chap. 346, § 128; 1 R. S. (Sth ed.) 812. The keeper of every poor-house, alms-house, or other place provided as aforesaid [for the support of the poor] shall be exempt from * * * * serving or juries. 3 R. 8. (8th ed.) 2120, § 72. + Persons EXemMpT FrRoM JuRY SERVICE. 209 Every collector of tolls, the clerks of each collector, not exceeding two, having the collector’s certificate that they are actually employed by him, and all superintendents of repairs, lock-tenders, inspectors of boats, and weigh masters, shall be exempted from * * * * jury service while actually engaged in their respective employ- ments on the canals, while the same are navigable. 1 R. 8. (8th ed.) 777, § 187. For the safety of Sing Sing State Prison a military company shall continue to be organized in the Village of Sing Sing, and for the safety of the Auburn State Prison asimilar company shall continue to be organized in the Village of Auburn and the persons composing said compan- iesshall be exempt from serving on grand or petit jury so long as they shall respectively continue to be members of such companies. 3 R. S. (8th ed.) 2819, §§ 112, 116. There shall continue to be organized in the vicinity of the prison at Auburn, one fire company, to consist of one foreman and thirty-six men residing in that vicinity ; the members of the said company shall upon the certifi- cate of the Board of Inspectors be exempt from serving on juries, so long as they shall continue such members. 3 R. S. 2820, § 127 and § 130. ; Every commissioned officer and every enlisted man of the national guard shall be exempt from jury duty during the time he shall perform military service, and every such commissioned officer and enlisted man who shall have served his full term of enlistment and been honorably discharged shall forever after be exempt from jury duty. ‘Laws 1883, chap. 269, § 145, as amended by Laws 1884, chap. 323, § 16. Members and officers of city and village police forces- are by the charters thereof, usually exempt from jury duty. The operators, assistant operators, clerks and other per- sons in the employ of the different telegraph companies in the State of New York and while doing duty in the offices of said companies or along the routes of their tele- graph lines, shall be exempt from serving on juries, and 14 910 THE LAW OF SUPERVISORS. from any fine or penalty for neglect thereof. Laws 1861, chap. 215. $194. Qualifications for trial jurors. In order to be qualified to serve as a trial juror in a court of record, a person must be: 1. A male citizen of the United States, and a resident of the county. 2. Not less than twenty-one, nor more than sixty years of age. 3. Assessed for personal property belonging to him in his own right to the amount of two hundred and fifty dollars, or the owner of a freehold estate in real property, situated in the county, belonging to him in his own right, of the value of one hundred and fifty dollars, or the hus- band of a woman who is the owner of a like freehold estate belonging to her in her own right. 4. In possession of his natural faculties, and not infirm or decrepit. 5. Free from all legal exceptions, of fair character, of approved integrity, of sound judgment and well informed. Code of Civil Procedure, § 1027. But a person who was assessed on the last assessment roll of the town for Jand in his possession, held under a contract for the purchase thereof, upon which improve- ments, owned by him, have been made to the value of one hundred and fifty dollars, is qualified to serve as a trial juror although he does not possess either of the qualifications specified in subdivision third of the last section, if he is qualified in every other respect. bid., § 1028. 195. Duplicate jury lists to be made and filed. Duplicate lists of the names of the persons so selected, showing the place of residence, and other proper addi- tions, of each of them, as far as those particulars can be conveniently ascertained, must be made out and signed by the officers or a majority of them. Within ten days after the meeting, one of the lists must be transmitted by those officers to the County Clerk and filed by him, SS OS ( fr Ic Lists oF TRIAL JuRORs. 211 and the other must be filed with the Town Clerk. Jbid., § 1037. List of trial jurors. STATE OF NEW YORK, County of Erie, SS. Town of Evans. We, the undersigned Supervisor, Town Clerk and As- sessors of the Town of Evans, in the County of Erie, do hereby certify that on the first Monday of July, A. D. 1888, we assembled at Angola, a village within said town, appointed by said Supervisor, for the purpose of making a list of persons qualified to serve as trial jurors from said town for the ensuing three years, and that the fol- lowing is a correct list of the persons so selected. Names. Occupation. Residence. William Blackburn - «+ « « + « « .|{Shoemaker. Evans. Elibu Gotobed = ......2.~. Tinker. Evans. Abraham Sweetafle ....... . |Blacksmith. Evans. Jacob Grosscup ......... Farmer. Evans. SamuelGreenman ........ Carpenter. Evans. Job Burnside == .....4.4.~. Wagon-maker. |Evans. Dated, July 2, 1888. ORSON EARL, Supervisor of Town of Evans. S. BLACKNEY, Town Clerk. . eS 2 Assessors. $196. Proceedings where list is not received by County Clerk. If for any reason the list from a town is not received by the County Clerk by the first Monday of August, he shall give immediate notice thereof to the Town Clerk and it must be transmitted as soon thereafter a practi- cable, and if after the same is received by the County Clerk it has been or shall be lost or destroyed, he must forthwith give notice thereof to the Town Clerk and a copy of the duplicate list on file in the Town Clerk’s 212 Toe Law OF SUPERVISORS. office certified by him to be correct, or if that duplicate is also lost or destroyed or cannot be found, a new list to be made forthwith as prescribed for making the original list must be transmitted to the County Clerk as soon thereafter as practicable, etc. Code Civil Procedure, § 1039, as amended by Laws 1880, chap. 108. § 197. Such jurors to serve three years. Each person whose name is contained in a list so trans- mitted, must, unless he is excused or discharged, serve as a trial juror for three years, from the first Monday of August of that year and thereafter until another list from his town is received and filed. Code Civil Proced- ure, § 1040. : SUPERVISOR AND TOWN CLERK. § 198. Duties on the incorporation of villages. Under the general law for the incorporation of villages, Laws 1870, chapter 291, and the several amendments thereto, certain preliminary steps are to taken and notice given of an election to determine the question of incor- poration. At the election provided for in such notice the Super- visor and Town Clerk, or Supervisors and Town Clerks of the towns, part or parts of which are taken for such village, or any two of such persons, shall constitute the Board of Inspectors for such election and preside at such election. Laws 1870, chap. 291, title I., § 8. Within three days after such election the said Board of Inspectors shall make out a certificate of the holding of the same and of the canvass of the ballots thereat, showing the whole number of such ballots, the number with the word ‘‘yes” thereon, and with the word ‘‘no” thereon, with a copy of the notice of the holding of such election and an affidavit of posting or publishing the same as hereinbefore provided. Such certificate shall be signed by said Inspectors or a majority of them and its truth verified by their affidavits annexed thereto, and shall within ten days after such election be filed and recorded INCORPORATION OF VILLAGES. 213 in the County Clerk’s office of the county within which such territory shall be, or in case such territory shall be located in two or more counties, then such certificate shall be filed with the County Clerk of each of such counties. Laws 1870, chap. 291, title I., § 10, as amended by Laws 1878, chap. 59. Within ten days after such filing, any elector qualified to vote at such election may appeal to the County Judge of the county in which such territory shall be located, etc., Ibid., § 11, and in case the County Judge sets aside such election and orders a new election to be held, Jbdd., § 13, such second election shall be held in the manner and by the persons as Inspectors, as hereinbefore provided for the first election, and with like powers to the Inspectors and the Inspectors presiding shall make a certificate of such election, such as was required at the previous election ‘by this act, and file the same within ten days from the holding of such election as directed as to the certificate of the previous election. Laws 1870, chap. 291, title 1, § 14. | If a majority of the ballots cast shall be favorable to incorporation, then from the time of filing such certifi- cate of the Inspectors of Election, such territory shall be acorporation. Ibid., § 15. Within twenty days after the day on which such terri- tory shall become and be incorporated as a village, the persons hereinbefore designated as Inspectors of the First Election, or a majority of them, shall publish or cause to be published in a newspaper, if one shall be published in said village, and post or cause to be posted in ten public places in such village, a notice stating that on a day stated and at a place named in such village and between certain hours, an election will be held for the election of such village officers as shall be required to be elected by this act; and such Inspectors shall preside at such elec- tion. Jbid., § 18. Such Inspectors shall immediately canvass the votes, openly declare the result, and make and subscribe a cer- tificate of such canvass, showing the whole number of 214 THE LAW OF SUPERVISORS. votes given, the number given for each person voted for, and the office for which he shall have been voted for, which certificate shall be recorded in the records of said village. Laws 1870, chap. 291, title I., § 19. SUPERVISOR AND TOWN COMMISSIONERS. § 199. His duties to prevent spread of diseases in peach and other trees. Laws 1887, CHAP. 403. An act to prevent the spread of the disease in peach trees, known as the yellows. Passed May 19, 1887. Peach trees infected with yellows, etc. §1. It shall be unlawful for any person to knowingly or wilfully keep any peach, almond, apricot or nectarine tree infected with the contagious disease known as the yellows, or to offer for sale or shipment, or to sell or ship to others any of the fruit thereof; that both tree and fruit so infected shall be subject to destruction as public nui- sances, as hereinafter provided, and no damages shall be awarded in any court in this state for entering upon premises and destroying such diseased trees and fruit, if done in accordance with the provisions of this act; and it shall be the duty of every person as soon as he becomes aware of the existence of such disease in any tree or fruit owned by him, to forthwith destroy or cause the same to be destroyed. Supervisor may appoint town commissioners. § 2. In any town in this state in which such contagious dis- ease exists, or in which there is good reason to believe it exists, or danger may be justly apprehended of its intro- duction, as soon as such information becomes known to the Supervisor thereof, it shall be the duty of said Super- visor to appoint forthwith three competent freeholders of said town, as commissioners, who shall hold office during the pleasure of said Supervisor, and such order of appointment and of revocation shall be entered at large upon the town records. As To DISEASES IN PEACH TREES. 215 Commissioners to file acceptance—Town Clerk to keep record. §3. It shall be the duty of said commissioners, within ten days after appointment as aforesaid, to file their acceptances of the same with the Clerk of said town, and said Clerk shall be ex officio Clerk of said Board of Commissioners, and he shall keep a correct record of the proceedings of said Board in a book to be provided for the purpose, and shall file and preserve all papers pertaining to the duties and actions of said commissioners, or either of them, which shall be a part of the records of said town. Duties of such commissioners. § 4. It shall be the duty of the commissioners, or any one of them, upon or with- out complaint, whenever it comes to their notice that the disease know as yellows exists or is supposed to exist within the limits of their town, to proceed without de- lay to examine the trees or fruit supposed to be infected, and if the disease is found to exist, a distinguishing mark shall be placed upon the diseased trees and the owner notified personally, or by a written notice left at his usual place of residence, or if the owner be a non-resident, by leaving the notice with the person in charge of the trees or fruit, or the person in whose possession said trees or fruit may be. The notice shall contain a simple statement of the facts as found to exist, with an order to effectually remove or destroy, by fire or otherwise, the trees so marked and designated, within ten days, Sundays excepted, from the date of the service of the notice ; and in case of fruit so infected, such notice shall require the person in whose possession or control it is found, to im- mediately destroy the same or cause it tobe done: said notice and order to be signed by the full board of commissioners. Proceedings by commissioners when order refused & 5. Whenever any person shall refuse or neglect to com- ply with the order to remove and destroy the trees marked by the commissioner, as aforesaid, it shall be- come the duty of the commissioners to,cause said trees 216 THE LAW OF SUPERVISORS. to be removed and destroyed forthwith, employing all necessary aid for that purpose, the expense for such re- moval and destruction of trees to be a charge against the town ; and for the purpose of said removal and destruc- tion the said commissioners, their agents and workmen, shall have the right and power to enter upon any and all premises within their town. Refusal to obey commissioner’s order a misdemeanor, etc. §6. If any owner neglects to remove and destroy, or cause to be removed and destroyed, as aforesaid, such diseased trees or fruit after such examination and notifi- cation, aud within the time hereinbefore specified, such person shall be deemed guilty of a misdemeanor, and punished by fine not exceeding one hundred dollars, or by imprisonment in the county jail, not exceeding three months, or both, in the discretion of the court ; and any Justice of the Peace of the town where such fruit is sold, shipped or disposed of, as aforesaid, shall have jurisdic- tion thereof ; and all such fines so collected shall be turned over to the Supervisor of said town to be placed by him in the contingent fund of said town. Compensation of commissioners to be paid by town. § 7. The commissioners shall be allowed for services under this act, two dollars for each full day and one dollar for each half day, and their other reasonable charges and dis- bursements hereunder to be audited, as well as other charges and disbursements under this act, by the Board of Town Auditors, to be paid to said commissioners as other town accounts are paid. Such fees and all reasonable charges and disbursements of said commissioners in each case may be recovered by the town, in the name of the Supervisor, from the owner of the diseased fruit trees on account of which such fees, charges and disbursements became payable or were incurred. Supervisor and Commissioners of Highways. § 200. Agreement with plank road company as to use of highways. Whenever it shall become necessary for any such com- DvTIES AS TO PLANK Roaps. Q17 pany to use any part of a public highway for the con- struction of a plank or turnpike road, the Supervisor and Commissioners of Highways of the town in which such highway is situated, or a majority, if there be more than one such Commissioner in such town, may agree with such company, upon compensation and damages to be paid by said company, for taking and using such high- way for the purposes aforesaid. Such agreement shall be in writing, and shall be filed and recorded in the Town Clerk’s office of such town. In case such agreement cannot be made, the compensation and damages for taking such highway for such purpose, shall be ascertained in the same manner as the compensation and damages for taking the property of individuals. Such compensation and damages shall be paid to the said Commissioners, to be expended by them in improving the highways of such town. Laws 1847, chap. 210, § 26. No Supervisor or Commissioner of Highways of any town shall make any agreement with any plank road company or turnpike road company under the first sec- tion of ‘‘ An act in relation to plank road and turnpike road companies,” passed November 24, 1847, for the right to take and use any public highway for a plank road or turnpike road without they first obtain the con- sent in writing of at least two-thirds of all the owners of land along such highway, who shall actually reside on that part of the highway on which such plank road or turnpike road is to be constructed. Laws, 1850, chap. 71, § 5. An agreement between the Supervisor and Commis- sioner of highways of a town and a plank road company, by which the former grant to the latter the use of a high- way, and the company as a compensation for such privi- lege, agree to keep the road in repair without expense to the town, is a valid contract. Peoplev. Fishkill & Beek- man Plank Road Co., 27 Barb. 445; Town of Fishkill v. Same, 27 Barb. 634. In such a case it has been held competent for the leg- 918 Tue LAW OF SUPERVISORS. islature to enact a law authorizing the Plank Road Com- pany to abandon such road and that such abandonment released the company from such agreement. People v. Fishkill, etc., 27 Barb. 445. But compare The Town of Fishkill v. The Fishkill, etc., Co., 22 Barb. 635. The compensation and damages for the use and occu- pation of a highway bya plank road company, which the public officers are authorized by: the statute to agree upon, need not be wholly estimated and paid in money. A part of the compensation may be in the shape of an executory agreement by the company to keep the road and bridgesin repair. Town of Fishkill v. The Fishkill, etc., Plank Road Co., 22 Barb. 634. While the Supervisor and Commissioners of Highways have the power to contract with a plank road company, for the use of the highway by such company, upon the compensation and damages to be paid for taking and using the highway, they have not the power to grant to the company this right upon condition that it shall erect and maintain its toll-gates in specified localities. Palmer v. The Fort Plain, etc., Plank Road Co., 11 N. Y. 376. Nor are they authorized to make a contract with the company granting it this right, and as a consideration therefor obligating it not to locate and maintain a toll- gate within a specified limit. Ibid. The Supervisor and Commissioners of Highways of a town cannot maintain a suit in their joint names as such officers on a contract made by them on behalf of the town, which contains no express agreement with them as such officers. Ibid. Where a plank road company acquires the right under the above statute to use a highway, such highway does not in consequence of such use cease to be a public highway, and the right of the general public to use it for the pur- pose of travel remains unimpaired. Walker v. Caywood, 31 N. Y. 51. The change effected by said act is, the general public, in consideration of the payment of certain tolls is relieved from the burden of keeping it in repair, and the duties Duties As TO PLank Roaps. 3 219 of highways and other local officers, is transferred to the which in this respect before belonged to the commissioners plank road corporation. Walker v. Caywood,31N.Y. 51. The rights and duties of the company towards the public during the construction of the plank road on the site of the highway, are similar to those of Commission- ers or Overseers, when repairing highways, and it is liable for injuries occasioned by its carelessness. Ireland v. Oswego Hannibal Plank Road Co., 13 N. Y., 526. The above acts held to be constitutional. Benedict v. Goit, 3 Barb. 459. A turnpike company taking a deed from the Com- missioners of Highways, acquires only an easement in the highway. Northern Turnpike Road Co. v. Smith, 15 Barb. 355. If a plank road or turnpike company take possession of a highway before making compensation therefor, the Commissioners of highways have no action for damages. They should proceed by indictment for a nuisance or order of removal, or by action for the trevle damages given by 1 R. 8. [526,] § 180. Cornell v. Butternuts Turnpike Co., 25 Wend. 365. Form of agreement to use highway for plank road. This agreement made this second day of July, 1888, by and between Frank §. Whaley, Supervisor of the Town of Aurora, in the County of Erie, State of New York, and A. B. and C. D., Commissioners of Highways of said town of the first part, and the Elma and Aurora Plank Road Company, of the second part,. witnesseth that the said party of the first part, having first become satisfied that at least two-thirds of all the owners of land along the highway (describe it) and who actually reside thereon, have consented in writing to the construction of a plank road by said party of the second part in such highway, do, for and in consideration of one hundred dollars for compensation and damages to us paid by said party of the second part, hereby grant and convey to the -gaid party of the second part the right to use and occupy 220 Tue Law OF SUPERVISORS. the public highway above described, for the purpose of a plank road, so long as the same shall be needed by said second party, upon the condition that said second party, during the: time it shall use and occupy said highway for its said purpose, it will keep the same in good state of repair. In witness whereof we have hereunto set our hands and seals this second day of July, A. D. 1888. FRANK 8. WHALEY, [1. s.]. Supervisor. A. B., i Commissioners of [L. s.] Cc. D., Highways. mss [u. 8.) ELMA AND AURORA PLANK ROAD CO. By H. J. Hurp, President. Add acknowledgment and file and record same in Town Clerk’s office. TO PROVIDE FOR, CARE, AND PRESERVATION OF STATE BOUND- ARY MONUMENTS. SEE ANTE, CHAPTER VI., § 125. § 201. Duties under general drainage act. The Supervisor and Commissioners of Highways of the several towns, and the President of any incorporated village, as to lands in such village, shall be Water Com- missioners of their respective towns, and, in addition to the powers now conferred by law upon them, they shall have the general charge and supervision of all drains, ditches and channels made, completed or constructed in said towns under this act. Whenever it shall be necessary to open, deepen, repair, change, or do any work to maintain and keep in repair any such dams, ditches, drains or channels, and disputes shall arise between the owners of the lands on which such dams, drains, ditches or channels are situate, regarding the same, the said Water Commissioners, or a majority of them, shall take procecdings similar to those authorized hereby to be taken and had for the construction of such works ; and the said Water Commissioners are hereby vested for such purpose, with the powers conferred upon original Commissioners by this act, and where improve- DUTIES AS TO PLANK Roaps. 221 ments of a nature and character similar to those hereby authorized shall have been made under the provisions of any specialact, itshall be lawful for the county court of the county to cause the same to be hereafter kept in repair and improved by said Water Commissioners of the town or towns under the provisions of this act ; and the said Wat- er Commissioner shall have like power and authority in all cases of subsoil or tile draining, when such subsoil or tile draining shall be, in their judgment, absolutely necessary for public or sanitary purposes, and the owner or occupant of any lands which such owner or occupant shall be desir- ous of so draining forsuch purposes, shall have to cross the lands of another in order to get an outlet, and the owner of such Jandsshall not be able to agree in regard thereto ; and the said Water Commissioners shall have power and authority to make all such needful rules and orders in re- gard tosubsoil or tile draining, as shall be necessary to pro- mote and secure the proper drainage of all farming lands by the owners thereof who shall desire to drain the same for public or sanitary purposes, without doing un- necessary injury to others or to the public highways in jn which such drainage may be discharged : and provided that in all cases where an easement for such drains shall be procured upon the lands of another, the said drains shall be neatly, safely and expeditiously put down and covered and the surface restored as nearly as may be to its original appearance, and no drains, ditches or other chan- nels for free passage of water authorized by this act, shall be across any door-yard, inclosed garden, orchard or vineyard, nor shall any tree in such door yard, inclosed garden, orchard or vineyard or building be removed without the owner’sconsent. 8 R. S. (8th ed.) 2721, § 16, as amended by Laws 1871, chap. 303. As to the duties of the Commissioners, which are by this section devolved upon the Supervisor and Commis- sioners of Highways, it is necessary to consult the stat- ute from which the above section is quoted. 222 § 202. § 208. § 204. § 205. § 206. § 207. § 208. § 209. § 210. Tare LAW OF SUPERVISORS. CHAPTER IX. SUPERVISOR’ S DUTIES IN RELATION TO ELECTIONS, Division of towns into election districts. Order dividing town into election districts. Alteration of districts. Order altering districts. Division of new towns into districts. To give notice of elections. Notice of election. Opening and closing of polls. Opening and closing of polls in Queen’s Co. and town of Hunt- ington in Suffolk Co. § 211. § 212. § 213. § 214. § 215. § 216. § 217. Inspectors of Election to be elected annually. Appointment of third Inspector. Vacancies in office of Inspector, how filled. Order filling vacancy. Inspectors of Election—who eligible. ‘When towns or wards a single district. Registration of electors in counties having over 300,000 popula- tion. § 218, Ballots for use at elections—style and character of. CANVASS AND ESTIMATE OF VOTES BY THE BOARD OF INSPECTORS. § 219. § 220. § 221. § 222. § 228. § 224. . Proclamation of result of canvass. . Violations of preceding section punished. . Repeal of inconsistent laws. . Ballots to be counted. . Ballots found in wrong box. . Excess of ballots to be destroyed. . Estimate and canvass of votes. . When two names appear for same office. . When there are too many names, . Defects that are not material. Canvass, when and how made. Comparison of poll lists. Order of canvassing, except in New York. School Commissioner. Order of canvass. Inconsistent acts repealed. DvuTIES IN RELATION TO ELECTIONS. 223 . Abbreviations of christian names. . Defective ballots, what to be done with them. . Inspectors are ministerial officers. ss ‘* liable for false returns, . Excess of ballots to be drawn and destroyed. . Statement of result of canvass to be made. . Canvass, etc., of presidential electors. . Form of such statement. . Statements only prima facie evidence. . How returns shall be made. . Copy to be filed. . Poll lists to be filed. . Ballots to be destroyed after canvass. . Original statement delivered to Supervisor. . Duplicate to be filed with County Clerk. . When to be canvassed. . Returns open to the inspection of all. . Penalty for false returns. . Bribery of Inspectors. . Forms of election returns. State officers. fs a s for presidential electors. . Instruction to Inspectors of Election. ee “« Supervisor. BOARD OF COUNTY CANVASSERS AND THEIR PROCEEDINGS. . Who compose the Board. . Character in which they act. . Where and when to meet. . Duty of Canvassers in Hamilton County. . Duty of Clerk and Canvassers of Fulton County. . Secretary of Board of Canvassers. . Oath of office of Canvassers. . Quorum. . Estimate of votes to be made by the Board. . Which is the original return. . Canvassers act ministerially. . Powers of the Board. . Powers of the Board in relation to ‘‘ pasters.” . When duties of the Board cease. . Separate statements to be made. . School Commissioners. . Number of votes and names written at length. . Statements to be certified and copy delivered to County Clerk. . Board to determine who was elected. , Such determinations to be published. . When Supervisor or Assessor unable to attend proceedings. . Duty of those who do attend. . Duty at adjourned meeting. 994 Tor Law OF SUPERVISORS. § 281. Statements when returned to Inspectors for correction. § 282. Duties of Inspectors on such return. § 283. Character of corrections that may be made. § 284. Validity of returns of Inspectors. OF THE DUTIES AND PROCEEDINGS OF THE COUNTY CLERK. § 285. Clerk to deliver statements. § 286. Clerk to procure those not received by him. § 287. Clerk to record statement. § 288. Clerk to prepare thre e copies. § 289. Clerk to transmit same to Governor, etc. § 290. To deliver copy certificate to county officers. § 291. List to be sent to Secretary of State. § 292. Clerk to transmit copy canvass. OF THE ELECTION OF PRESIDENTIAL ELECTORS, § 293. Election by general ticket. § 294. Duty of County Clerk. § 295. One certified copy to Secre tary of State. MISCELLANEOUS. § 296. Punishment of County Clerk for neglect. § 297. Destroying or delaying election returns—punishment. § 298. County Clerk’s compensation. § 299. Records of canvasses to be kept by the Clerk. § 800. Official canvass. § 301. Statement of votes cast for state officers. § 302. Statement of votes cast for county officers. § 303. Statement of votes cast for Members of Assembly. § 304. Official action of the Board theron. § 305. Certificates of election as evidence. § 306. Special elections in case of tie vote. § 307. Special election when ordered by Board of Canvassers, § 308. Notice of special election. § 309. Notice, by whom to be signed. § 310. Form of notice for special election. § 311. Courts may compel canvassers to correct errors, § 312. Practice under Laws 1880, chap. 460. § 313. Notices of decisions under last two sections. UNDER THE GENERAL ELECTION LAW. § 202. Division of towns into election districts. The Supervisor, Assessors and Town Clerk of each town shall meet at the Town Clerk’s office in such town, on the first Tuesday in September next [1842], at ten o’clock in the forenoon, and form themselves into a Board. And Division OF Towns INTO ELECTION DISTRICTS. 295 in case a majority of said officers, for any cause, do not attend on that day, it shall be the duty of those who do attend, to adjourn to some future day, not exceeding five days, and shall immediately thereupon give notice to those officers who do not attend, of the time of such adjournment ; and it shall be the duty of all of said offi- cers to attend on said adjourned day, and to proceed in the same manner as though a majority had attended on the day appointed by law; and adjournments from time to time may be had by said officers, as occasion may require, but no such adjournment shall extend beyond the first day of October in said year. They shall in all cases where any town shall contain more than five hun- dred electors, divide the same into a convenient number of election districts, so that each district shall be in a compact form within their town, and shall contain not more than five hundred electors, as far as the number can be ascertained. But where any town shall contain less than five hundred electors, the Board may in their discretion, divide the same into districts. They shall make a certificate of such division, under their hands, in which such districts shall be numbered and described by known boundaries, which shall be immediately filed in the office of the Town Clerk. The Town Clerk shall, at least two weeks before the day of election, put up copies of the said certificates in at least four public places in each of the said districts, within ten days after such meet- ing, and he shall deliver a copy thereof to an Inspector in each district, before the day of election. Laws 1842, chap. 130, title III., § 15; 1 R. 8. (8th ed.) 414, § 15. § 203. Form of order dividing town into election districts. State or New York, County of Erie, Ss Town of Collins. We, the undersigned Supervisor, Town Clerk and Assess- ors of the Town of Collins, in the County of Erie, having met at the Town Clerk’s office in said town, on the first Tuesday of September, A. D. 1888, for the purpose of di- viding said town into election districts and having formed 15 226 Toe LAW OF SUPERVISORS. ourselves into a Board as required by law (or @ ma- jority of said officers being present) did then and there divide said town into two election districts, which districts shall be known as election districts Nos. 1 and 2. Said district No. 1 shall comprise and consist of all that part of said town lying and being within the following bound- aries, viz. : (describe such district carefully by well known boundaries). Said district No. 2 shall comprise (proceed as to district No. 1.) Dated Collins Centre, September 4, 1888. FRED J. BLACKMAN, Supervisor. A. Bi, Town Clerk. re D j Assessors. § 204. Alteration of districts. In every succeeding year the same officers shall meet at the Town Clerk’s office on the first Monday of October, at ten o’clock in the forenoon andforma Board. They shall determine whether any alteration in the existing election districts be necessary or expedient, and shall have power to make the same, subject to the same restrictions and limitations contained in the last preceding section ; and shall in like manner make a certificate of such alter- ations, exhibiting the districts so altered, and in their numbers respectively, which certificate shall be filed in the Town Clerk’s office. Such alteration shall not take effect until after the next general election, except in case of the alteration, erection or division of a town, or except such alteration of districts shall not affect any in- habited territory ina town, in which cases it shall take effect immediately. Jbid., § 16, as amended by Laws 1880, chap. 437, and Laws 1885, chap. 267, § 3. § 205. Form oforder for alteration of election districts. STATE oF NEW YORK, } County of Erie, Town of Collins. \ We, the undersigned Supervisor, Town Clerk and As- Eection Districts In New Towns. 227 sessors of the Town of Collins, in the County of Erie, hav- ing met at the Town Clerk’s office in said town, on the first Monday of October, A. D. 1888, for the purpose of determining whether any alteration in the existing election districts be necessary or expedient, and having formed ourselves into a Board as required by law (or a ma- jority of said officers being present) did then and there determine that certain alterations in the existing election districts in said town are necessary and expedient and the said election districts are accordingly altered as fol- lows : Election district No. 1 in said town is hereby altered so as to comprise and consist of all that part of said town lying and being within the following boundaries, viz. : (describe such district carefully by well know boundaries). Election district No. 2 shall comprise and consist (proceed as in district No. 1). Dated Collins Centre, October 1, A. D. 1888. (Signed as in preceding order.) § 206. Division of new towns into election districts. When any new town shall be formed, the Supervisor, Town Clerk and Assessors therein shall meet at the Town Clerk’s office on or before the first Tuesday in September preceding the first general election to be held in such town, and divide the same into districts as herein prescribed, and the same proceedings in all respects shall be had as herein provided in respect to towns now existing. Laws 1842, chap. 13), title III., § 17; 1 R. 8. (8th ed.) 314, § 17. § 207. To give notice of elections. The Common Council of each city and the said town officers of each town, on the first Tuesday of September next and on the first Monday in September in each year thereafter, shall designate the place in each election dis- trict in such city or townat which election shall be held during the year; and they shall thereupon give notice, written or printed, to be posted in: at least eight public places in each district, containing a description of such place so designated and of the time of opening and closing 228 Tue LAw OF SUPERVISORS. the poll. The said town officers shall, at their meeting on the first Tuesday of September next, assign at least three of their number to hold the election in each district and if there be not a sufficient number for that purpose, they shall assign one or more of their number to each district, and shall select from among the Justices of the Peace and the Commissioners of Highways of such town, as many as shall be necessary, in addition to those previously assigned, to constitute at least three Inspect- ors of Election for each district and such Inspectors shall be allowed to vote in the district where they shall be respect- ively assigned. The selections shall be made from the officers aforesaid in the order herein named, residing in the district to which they shall be assigned, if there be suffi- cient for that purpose. A certificate specifying the offi- cers thus assigned and selected for each district, shall at the same time be signed by the Board and filed in the office of the Town Clerk, who shall immediately cause notice thereof to be given to the officers selected. And in case a majority of said Common Council in any city, or a majority of said town officers, shall for any cause fail to attend for the purposes aforesaid, on the days above mentioned, the same powers are given in relation to adjournments and the same duties are required in all particulars as are given in the fifteenth and sixteenth sections of this title to town officers, except that no adjournment shall extend beyond the fifteenth day of September in each year. Laws of 1842, chap. 180, title III., § 18, as amended by Laws 1881, chap. 137. § 208. Notice of election. Strate oF New YORK, County of Erie, SS. Town of Alden. We, the undersigned, composing the Board of Town Officers of said town, do hereby givenotice that the ensu- ing general election, at which the following officers are to be elected, viz.: (insert the list of officers contained in the notice of the Secretary of State) will be held on the Notice or Houpine ELEcrions. 229 day of next, in election district number one, at the house of Herman Wende,in said district ; on the same day in election district number two, at the hotise of J oseph E. Ewell, in said district, and in election district number three on the same day, at the house of George Bohner, in said district, and that the poll of the election will be opened on the day of aforesaid at (insert the time fixed upon by the Board, not later than nine o’clock A. M.) and closed at sunset on that day. Dated at Alden Centre, September 3, 1888. GEORGE F. PATTERSON, Supervisor. A. B., Town Clerk. G. T., } L. M., } Assessors. P. G., The basis of such notice is a notice of the holding of the election, which the Supervisor receives from the Sheriff of the county. Laws 1842, chap. 130, title III., § 14. § 209. Opening and closing of polls. The poll in the several Cities and County of West- chester shall be opened at sunrise and in the several towns in all other counties at any time between sunrise and nine o’clock in the morning, and shall be kept open until the setting of the sun ; and no adjournment or in- termission whatever shall take place until the same be closed. Laws 1842, chap. 130, title IV., § 6, as amended by Laws 1854, chap. 286. § 210. In Queens County and town of Huntington in Suffolk County. The poll at all elections in Queens County and the Town of Huntington in Suffolk County shall be opened at sunrise and the Inspectors of Election shall give at least twenty minutes’ notice at the closing of said polls. Laws 1864, chap. 274. In the City and County of New York the polls are 230 THe LAW OF SUPERVISORS. opened at six o’clock in the morning and closed at four o’clock in the afternoon. Laws 1882, chap. 410, § 1843. The closing of the outer door of the room where an election is held at sundown, and then permitting the voters within the room to vote, will not render the elec- tion invalid unless it be shown either that legal votes were excluded by the closing of the door, or that illegal votes were received after sundown. People v. Cook, 8 N. Y. 69. The provision of the statute as to the time of opening and closing of the poll is directory merely. Ibid. § 211. Inspectors of Election to be annually elected in towns and cities. At each town meeting to be held in the several towns of this state, and at each annual charter election. to be held in the several cities of this state, which are not or- ganized into towns, after the first of January next [1843], the Electors of such city or town shall be entitled to vote by ballot on the same ticket with other towns or charter officers, for two Electors residing in each election district of such town or city, to be Inspectors of Election for such city or town ; and the two persons in each district receiv- ing the greatest number of votes, shall be two of the In- spectors of Election for such district at all elections to be held therein the ensuing year. The presiding officers of such town meeting or charter election, shall immedi- ately after the votes of such town meeting or charter election shall be canvassed, appoint by writing subscribed by a majority of said presiding officers, another Inspector of Elections for each election district, to be associated with said two Inspectors so elected, and who shall there- upon be one of the Inspectors of Election of such district. Such Inspector shall be selected from the two persons in such election district, who shall have the highest number of votes next to the two Inspectors so elected, and no ballot for Inspector shall be counted, upon which more than two names shall be contained. Laws 1842, chap. 180, title ITI., § 21. APPOINTMENT OF INSPECTORS OF ELECTION. 231 $212. Appointment ofthird Inspector of Elections. STaTE or NEw York, County of Erie, Ihe ‘Town of Amherst. J We, the undersigned presiding officers (or a majority of the presiding officers) of the annual town meeting held in the town of Amherst, on the day of A. D. 1888, do hereby appoint Leonard Dodge, in election district number orie, John Schoelles, in election district number two, in said town, Inspectors of Election in said districts respectively, to be associated with the two In- spectors in each of said districts respectively, who have been this day elected Inspectors of Elections for the ensuing year ; and we hereby certify that the said Leonard Dodge and John Schoelles were each one of the two persons who received at said town meeting the highest number of votesrespectively for said office of Inspector of Elections, next to the two Inspectors in each of said districts, who were elected. Dated at Williamsville this day of A. D. 1888. This order should be signed by the whole or by a ma- jority of such presiding officers and should be filed in the Town Clerk’s office. § 213. Vacancies in office of Inspector, how filled. In case any such Inspectors in any town shall not be chosen or appointed as provided in the preceding sec- tion, or any of them shall be absent, or shall cease to be a resident of such district, or unable to attend and hold any election in their district, the Supervisor, Town Clerk and Justices of the Peace in such town, shall meet at such time and place as shall be appointed by the Su- pervisor, or in case of his absence or inability, or a va- cancy in his office, by the Town Clerk, and shall desig- nate and appoint so many Electors of such election dis- trict as shall be necessary to supply such vacancy, to be Inspectors of Election for such district, and shall file a certificate of such appointment in the office of the Town Clerk ; and the persons thus appointed shall be Inspect- ors of such election for such district. And all vacancies 232 THE LAW OF SUPERVISORS. which may exist or occur in the office of Inspector of Election in any city, shall be filled by the Common Coun- cil of such city. Laws 1842, chap. 130, title III., § 22. § 214. Order appointing Inspector of Election to fill vacancy. StaTE oF NEw YorK, | County of Erie, Ss. Town of Clarence. \ Whereas a vacancy has occurred in the office of Inspect- or of Election in the first election district of the Town of Clarence, aforesaid, by reason of a failure to choose or appoint Inspectors of Election at the last annual town meeting (or by reason of their absence, or that they have ceased to be residents of such district, or that they are unable to attend and hold an election, as the case may be). Now, therefore, we, the undersigned Supervisor, Town Clerk and Justices of the Peace in such town, having duly met for the purpose of filling such vacancies, do hereby, by virtue of the power and authority vested in us by law, in order to fill such vacancies, designate and appoint Henry K. Vantine and John W. Fisher to be In- spectors of Election in the first election district, and Livingston G. Wiltse and Reuben §. Myers to be In- spectors of Election in the second election district of said town ; each of the persons so appointed being Electors of the election district for which he is appointed and qualified according to law. In witness whereof we have hereto set our hands this day of A. D. 1888. Signatures. The order of appointment must be filed with the Town Clerk. § 215. Who eligible to be Inspector of Elections. No person shall be eligible to the office of Inspector of Election or Clerk of the Poll, or be qualified to act as such, unless he can read and write the English language. Laws 1880, chap. 56, § 1. REGISTRATION OF ELECTORS, 233 § 216. When towns or wards are not divided. Every town or ward that shall not be divided into election districts according to the preceding provisions, shall constitute and be an election district in itself ; and all the provisions of this act in relation to election dis- tricts, the election or appointment of Inspectors of Elec- tion therein, and their duties and powers, shall apply to such towns or wards and the Inspectors of Elections therein. Laws 1842, chap. 130, title IIT., § 24. § 217. Registration of Electors in counties having population of over 300,000. Whenever fifty or more resident citizens and legal voters of any town in any county in this state, having a population of over three hundred thousand according to the last state census, shall file in the office of the Town Clerk of such town, in writing, a request that the citizens of such town entitled to the right of suffrage, be ascertained, the Town Clerk shall, within five days thereafter, notify the Justices of the Peace and Super- visor of said town to meet, and in such notice shall name a time and place in said town, not less than three or more than ten days thereafter, for them to meet. Such Justices and Supervisor and the Town Clerk shall, at the time and place so designated, meet, and shall constitute a Board with power to do and perform the acts and duties hereinafter required. Laws 1880, chap. 142, § 1. The presence of at least four of said Board shall be necessary to constitute a quorum. When so convened they shall proceed to appoint under their hands and seals. five citizens and legal voters of said town who shall have been residents of said town for at least one year next before their appointment as Registers, to act as and be known as the Board of Registry of said town. Said Registers shall be selected from the two opposing politi- cal parties which cast the greatest number of votes at the then next preceding general election, and not more than fhree of them shall be at any time taken from or belong to either of said political parties. If any per- son so appointed fails or refuses to serve, or if a vacancy 9384 THE LAW OF SUPERVISORS. at any time shal] occur, the other members of the Board shall fill the vacancy by appointment. Laws 1880, chap. 140, § 2. The remaining portion of this chapter relates to the functions and duties of such Registers, etc., and no further duties seem to be imposed on the Supervisor. This act has reference to the County of Kings, as it is the only county in this state containing over 300,000 inhabitants in which there are towns: the city and county of New York is subdivided into wards. § 218. Style and character of ballots to be used at elections. Laws oF 1880, CHAP. 366. An act to secure uniform ballots and preserve the purity of elections. Passed May 24, 1880. Ballots must be on plain white paper and uniform. § 1. At all elections hereafter held within the limits of this state for the purpose of enabling Electors to choose by ballot any officer or officers under the laws of this state, or of the United States, or to pass upon any amendment, law, or public act, or proposition submitted to the Elect- ors, to vote by ballot under any law, each and all ballots used at any such election shall be upon plain white print- ing paper, and without any impression, device, mark or other peculiarity whatsoever upon or about them to dis- tinguish one ballot from another in appearance, except the names of the several candidates, and they shall be printed with plain black ink. Caption. §2. Every ballot shall have a caption (as provided by law), but such caption shall be printed in one straight line in black ink with plain type, of the size generally known and distinguished as ‘‘great primer Roman condensed capitals,” and the names of all can- didates shall be printed in plain type with letters of a uniform size. Unlawful to distribute other ballots. § 3. It shall be unlawful for any person to print or distribute, or to cast any ballot printed or partly printed, contrary to the pro- CANVASS OF VOTES. 935 vision of this act, or to mark the ballot of any voter, or to deliver to any voter such marked ballot for the pur- pose of ascertaining how he shall vote at any election. Penalty. §4. Any person or persons who shall know- ingly or willfully violate, or attempt to violate, any of the provisions of this act shall be deemed guilty of a misdemeanor, and be punished by imprisonment in a county jail or penitentiary for not exceeding one year, or by a fine not exceeding two hundred and fifty dollars, or by both such fine and imprisonment. Repeal. §5. All acts or parts of acts inconsistent with the provisions of this act are hereby repealed, provided that nothing in this act contained shall be construed to prohibit any Elector from voting any ballot entirely written or from voting any printed ballot which in outward appearance complies with all the require- ments of this act, upon the face of which he has person- ally made or caused to be made erasure, correction or insertion of any name, by pencil or otherwise. OF THE CANVASS AND ESTIMATE OF THE VOTES BY THE BOARD OF INSPECTORS. $219. Canvass, when and how made. As soon as the poll of an election shall have been finally closed, the Inspectors of said election, in. their election districts, shall proceed to canvass the votes. Such canvass shall be public, and shall not be adjourned or postponed until it shall have been fully completed. Laws 1842, chap. 130, title IV., § 35. § 220. Comparison of poll lists. The canvass shall be commenced by a comparison of the poll lists, from the commencement and a correction of any mistakes that may be found therein. bid., § 36. § 221. Order of canvassing except in New York. Immediately after the final closing of the poll, at all general elections hereafter to be held in this state, in the 236 Tue Law OF SUPERVISORS. several election districts, except in the City of New York, the ballot boxes used at such elections shall be opened and the votes therein canvassed in the manner now pro- vided by law, but as nearly as may be in the following order : 1. Electors. The box containing the ballots indorsed ‘* Electors.” 2. State. The box containing the ballots endorsed “State.” 8. Congress. The box containing the ballots endorsed ““ Congress.” 4, Senate. The box containing the ballots indorsed “Senate.” 5. Assembly. The box containing the ballots indorsed “* Assembly.” 6. Judiciary. The box containing the ballots indorsed “ Judiciary.” Other ballots. If any other ballot boxes shall have been used at any such election, in pursuance of law, such other boxes shall be opened and the votes therein can- vassed immediately after those hereinbefore specified, in such order as the Inspectors of Election at the several pollsshall respectively determine. Ibid., § 37, asamended by Laws 1871, chap. 712, § 1. See the next succeeding section. § 222. School Commissioner In the years when a School Commissioner is to be . elected there will have to be an additional box marked ‘* School Commissioner,” into which the ballots for candi- date for that office are to be deposited, and such votes are to be estimated and canvassed and returns thereof made in the same manner as the ballots of county officers. Laws 1864, chap. 555, title II., § 3, as amended by Laws 1867, chap. 406. § 223. Order of canvass. At each annual or special election at which a represent- ative in Congress, Senator or Member of Assembly is here- after to be elected, the Inspectors in the several election CANVASS OF VoTES. 2387 districts in this state shall provide and keep a separate box in which all ballots for Representatives in Congress, to be indorsed ‘‘ Congress” shall be deposited ; also a sep- arate box in which all ballots for Senator, to be indorsed “Senate” shall be deposited ; and also a separate box in which all ballots for Members of Assembly, to be indorsed “Assembly ” shall be deposited; and the ballots de- posited in said several boxes shall be estimated and can- vassed in the order named above, respectively and im- mediately following the estimate and canvass of the ballots indorsed ‘“ State.” Laws 187 1, chap. 712, § 1, which amends the last preceding section. § 224. Inconsistent acts repealed. Allacts and parts of acts inconsistent with the provis- ions of this act are hereby repealed. Ibid., § 2. § 225. Proclamation of result of canvass of each box. At the completion of the canvass of each box, the chair- man of the Inspectors of Election, shall make public oral proclamation of the whole number of votes in such box, and of the whole number given for each person, with the name of the office to which such person was named on the ballots. Laws 1855, chap. 513, § 3, as amended by Laws 1856, chap. 79, § 8, and modified by Laws 1871, chap. 712. § 226. Violations of preceding section, how punished. This act shall be deemed a portion of the electoral law of the state, and any violation thereof shall be pun- ished in the same manner as provided in the general statutes regulating elections. Laws 1855, chap. 518, § 4. §227. Repeal of inconsistent laws. The act entitled ‘‘ An act to regulate the number of boxes to be used at elections,” passed March twenty-third, eighteen hundred and fifty-two, and all acts and parts of acts heretofore passed, so far as the same are incon- sistent with the provisions of this act, are hereby re- pealed. Jbid., § 5. 238 THE LAW OF SUPERVISORS. § 228. Ballots to be counted. ; Each box being opened, the ballots contained therein shall be taken out and counted unopened, except so far as to ascertain that each ballot is single. And if two or more ballots shall be found so folded together as to present the appearance of a single ballot, they shall be destroyed, if the whole number of ballots exceed the whole number of votes, and not otherwise. Laws 1842, chap. 130, title IV., § 37. § 229. As to ballots found in wrong box. No ballot properly endorsed, found in a box different from that designated by its endorsement, shall be reject- ed, but should be counted in the same manner as if found in the box designated by such endorsement, pro- vided that, by the counting of such ballot or ballots, it shall not produce an excess of votes over the number of votes designated by the poll list. Ibzd., § 38. § 230. Excess of ballots to be destroyed. If the ballots shall be found to exceed in number the whole number of votes on the correspondent columns of the poll lists they shall be replaced in the box, and one of the Inspectors shall, without seeing the same, publicly draw out and destroy so many ballots unopened, as shall be equal to such excess. Ibid., § 39. § 231. Estimate of votes. The Board shall then proceed to canvass and estimate the votes. Ibid., § 40. § 232. When two names appear for same office neither can be counted. A ballot that contains two names upon it for the same office cannot be counted for either candidate, nor can evidence be taken in a proceeding in the nature of a quo warranto to determine the title to the office to show that the Elector who deposited the ballot intended to vote for one of the persons named thereon. People v. Seaman, 5 Denio, 409. a Canvass oF VoTEs. 239 Where one is printed and the other written, the latter may be counted. The writing of a name upon a printed ballot in connec- tion with the title of an office, is a designation for that office of the name so written, although the printed name for which it is intended as a substitute be not erased. The writing prevails over the printed letters as the high- est evidence of the voter’s intention. People v. Saxton, 22 N. Y. 309. § 233. When there are too many names. When but one person can be elected to an office and three persons are named on the same ballot under the erroneous supposition that three officers were to be elect- ed instead of one, the ballot is void. People v. Ames, 19 How. Pr. 551. § 234. Defects that are not material. A ballot which substantially describes the office for which the Elector intends to vote, is to be counted accord- ing to his plain intention, notwithstanding it may not conform precisely to the statute. Thus, where ballots should be indorsed and read “for Trustees of Common Schools,” ballots not indorsed, and reading ‘‘ for Trustees of Public Schools,” must be counted. People v. Mc- Manus, 34 Barb. 620; S. C. 22 How. Pr. 25. § 235. Abbreviations of Christian names. There are a class of abbreviations of the Christian names of candidates that when used do not render the ballot so far defective but the Canvassers or Inspectors of Election may count them for the proper person. For instance, Geo. is an abbreviation of George, and a ballot thus written or printed niay be counted for the candi- date whose name is George, if the name is otherwise cor- rect, and so Hen. for Henry, People v. Ferguson, 8 Cow. 107, Wm. for William, Abm. for Abram or Abra- ham. Kortz v. Board of Canvassers, 12 Abb. N.C. 88, § 236. Defective ballots—what to do with them. Where the name of the candidate was Henry F. Yates, 240 Tue LAW OF SUPERVISORS. and ballots were received on which the names H. F. Yates, Frey Yates, appeared for the same office, the Can- vassers cannot count them for Henry F. Yates, but should return them separately. People v. Ferguson, 8 Cow. 102. Where the candidate’s name was Benjamin Welch, Junior, ballots cast for Benjamin C. Welch, Junior, and for Benjamin Welch, the Inspectors cannot count them for the candidate, but must return such ballots sepa- rately. People v. Cook, 8 N. Y. 67, affirming 8S. C. 14 Barb. 259. In a similar case where the candidate’s name was Andrew H. Getty and votes were cast for him by his correct name and also for Andrew C. Getty, the ballots were returned separately, as the Inspectors possessed no power to count the latter votes for the candidate. Kortz v. Board of Canvassers of Green County, 12 Abb. N. C. 84. When in the ballot containing several names for various offices the defect relates to but one office the ballot should be counted as to all offices where no defect exists and should be returned as to the defective name. People v. Cook, 8 N. Y. 68. It should be distinctly borne in mind that all defective ballots except those where the apparent defect consists in a well known abbreviation of the Christian name, must be attached to and made a part of the return. Where precisely the same defect exists in several ballots one of such defective ballots should be attached and returned with the proper indorsement of the number of precisely similar ballots that were received. Where the Inspectors are in doubt as to whether the ballot is really defective the better course for them to pursue is to attach it and return it as defective, leaving it for the Board of County Canvassers or the courts to determine the question. People v. Love, 63 Barb. 535. § 237. They are ministerial officers. In canvassing the votes and in making their returns ELECTION RETURNS. 241 the Inspectors are mere ministerial officers. Their office is purely ministerial. They decide nothing. They mere- ly declare the contents of the ballot boxes. Morgan v. Quackenbush, 22 Barb. 77. The office of Inspectors is merely ministerial. On a given concourse of circumstances, well defined by con- stitution or statute, they are bound to receive, or count votes and give certificates of election. People v. Bristol, etc., Turnpike Co., 23 Wend. 228. Returns made by Inspectors of Elections are in general ministerial and not judicial acts. Ea parte Heath, 3 Hill, 42 ; People v. Pease, 27 N. Y. 45; People v. Cook, 8N. Y. 67. § 238. Inspector liable for False returns. An Inspector of Election is not bound to accept the decision of the poll clerks and sign the returns as pre- pared by them. It is his duty and he has authority to examine, investigate and correct them, and if he signs and delivers them knowing that they are false, he is sub- ject to indictment and punishment. Boland v. People, 25 Hun, 423. § 239. Excess of ballots to be drawn and destroyed. If after having opened or canvassed the ballots, it should be found that the whole number of them exceeds the whole number of votes entered on the poll lists, the Inspectors shall return all the ballots into the box, and shall thoroughly mingle the same, and one of the Inspect- ors, to be designated by the Board, shall publicly draw out of such box, without seeing the ballots contained therein, so many of such ballots as shall be equal to the excess, which shall be forthwith destroyed. Laws 1842, chap. 130, title IV., §.41. § 240. Statement of result to be made. The canvass shall be completed by ascertaining how many ballots of the same kind, corresponding in respect to the names of persons thereon, and the different offi- ces for which they are designated, have been received ; and the result being found, the Inspector shall securely attach to a statement of such canvass one ballot of 16 949 Tue LAW OF SUPERVISORS. each kind, found to have been given for the officers to be chosen at each election, any or either of them, except those given for Electors of President and Vice- President and they shall state in words at length, immediately opposite such ballot, and written partly on such ballot and partly on the paper to which it shall be attached, the whole number of all the ballots that were received which correspond with the one so attached, so that of each kind of the ballots received at such election, for officers then to be chosen, shall be attached to such pa- per, with a statement of such canvass. They shall also attach to such paper the original ballots rejected by them as being defective, which were given at such elec- tion. Laws 1842, chap. 180, title IV., § 42. § 241. Canvass and statement of votes for President and Vice- President. When Electors of President and Vice-President shall be chosen at any election, the Inspectors shall make a seperate canvass and statement of the votes given for Electors, in the manner prescribed in the last preceding section, by ascertaining how many ballots of the same kind, corresponding in respect to the names thereon, have been received; and the result being found, the Inspectors shall sequrely attach to paper one original ballot of each kind, found to have been given for Electors, and shall state in words at full length opposite such ballot, and written partly thereon, and partly on the paper to which it shall be attached, the whole number of ballots for Electors that were found to have been received, cor- responding with the one so attached. They shall also attach to such paper all original ballots for Electors, rejected by them as being defective. Jbid., § 43. § 242. Form of statements. The statement to be made by the Inspectors shall con- tain a caption, stating the day on which, and the number of the district, the town or ward, and the county at which the election was held, in relation to which such statement shall be made: it shall also contain a state- ELECTION RETURNS. 243 ment showing the whole number of ballots taken for each person, designating the office for which they are given, which statement shall be written in words at length ; and at the end thereof, a certificate that such statement is correct in all respects; which certificate shall be subscribed by the Inspectors. Laws 1842, chap. 130, title IV., § 44. § 243. Only prima facie evidence. The returns and certificates of Canvassers are only prima facie evidence and not conclusive upon the courts. in a proper proceeding to determine who was elected. In such proceeding the courts go behind the returns and examine the voters to determine their intentions in casting certain ballots and for whom they voted. People v. Pease, 27 N. Y. 45 ; People v. Cook, 8 N. Y. 67; People v. Seaman, 5 Denio, 409; People v. Van Slyck, 4 Cow. 297; Commonwealth v. Smith, 132 Mass. 296, § 244. How returns shall be made. Every return or statement of the result of the canvass of any election shall be made upon a single sheet of paper, or if not, each half-sheet shall be signed at the end thereof by the Inspectors. Laws 1880, chap. 56, § 11. § 245. Copy to be filed. A true copy of the several statements made by the Inspectors shall be made and certified by them, and immediately filed by them in the office of the Clerk of thetown orcity. Laws 1842, chap. 130, title IV., § 45. $246, Poll lists to be filed. The poll lists kept of such election shall be filed by the Inspectors, or one of them, in the office of the Clerk of the town or city in which such election was held, and shall be there preserved. Ibzd., § 46. § 247. Ballots to be destroyed. The remaining ballots not so posted or attached, shall be destroyed, and the Board of Inspectors shall be dis- solved. Ibid., § 47. 944 THe Law oF SUPERVISORS. § 248. Original statements to be delivered to Supervisor. The original statements, duly certified, shall be delivered: by the Inspectors or by one of them, to be deputed for that purpose, to the Supervisor of the town or ward, within twenty-four hours after the same shall have been sub- scribed. If there be no Supervisor, or he shall be dis- abled from attending the Board of County Canvassers, such original statement shall be delivered to one of the Assessors of the town or ward in which such election was held. Laws 1842, chap. 130, title IV., § 48. The original statement and not a mere certified copy thereof must be delivered to the Supervisor or Assessor. People v. Wise, 2 How. Pr. (N. 8.) 92, Albany Ch. of Sessions. § 249. Duplicate return and statement to be made and filed with County Clerk. The Inspectors of Election of each election district, shall, within twenty-four hours after the completion of the canvass, in addition to the making and filing of the returns and statements thereof now directed and required by law, cause a duplicate of such return or statement to be filed in the office of the Clerk of the county. One of their number may be deputed by them to, and may file the same, and he shall be paid for so doing, except in cities and towns where the County Clerk’s office is situated, the sum of five dollars, and also four cents a mile for each mile actually and necessarily traveled by the usual route in going to and returning from the said County Clerk’s office, to be audited, allowed and paid in the same manner as for other services of said Inspectors. Laws 1880, chap. 56, § 14. § 250. When to be canvassed. The duplicate required by this section in the absence of an original return made by the Inspectors of Election at the close of the election, is the return which the Board of County Canvassers are required to canvass. People v. Canvassers of Albany County, 20 Abb. N. C. 19; 8. C. 46 Hun, 390. ELection Returns. 945, Such duplicate being in the possession of the County Clerk, who is ea officio Secretary of the Board of County Canvassers, is practically in the possession of the Board; and in the absence of a proper original, produced by the Supervisor, should be canvassed as the original under its control ; and the Board will be compelled to do so by mandamus. Ibid. § 251. Returns open to inspection of all. The returns or statements of elections on file in County, Town and City Clerk’s offices, shall be public record sand open to inspection and examination by any Elector of the state. Laws 1880, chap. 56, § 15. § 252. Penalty for false returns. .Every Inspector of Election or Clerk of the poll, who shall intentionally make, or attempt to make, any false canvass of the ballots cast at an election, or shall inten- tionally make, or attempt to make, any false statement of the result of any canvass, though not signed by a majority of the Inspectors of Election, shall be guilty of a felony, and be punished by imprisonment in the: county jail or a penitentiary, not exceeding one year, or in the state prison not exceeding five years. JIbid., § 18. § 253. Bribery of Inspectors. Any person who shall induce, or attempt to induce, any Inspector of Election, or Clerk of the poll, to do any act forbidden by the last section, shall be guilty of a fel- ony, and be punished in the manner and to the same extent. Jbid., § 19. § 259. Forms of election returns at general election. Statement of the result of a general election held in, and for the first election district of the Town of Lancas- ter, in the County of Erie, on the third day of November, in the year of our Lord, one-thousand eight hundred and eighty-five, made by the Inspectors of Election, in and for said district, viz. : 246 THE LAW OF SUPERVISORS. The whole number of votes given for the office of Governor was four hundred and twenty- five t 425 Of which David B. Hill received two hundred and fifty . . . 250 Iva Davenport received one Hurdle a cre seven- CY 28) oe 3 Suk. de > 170 H. Clay Bascom received a &. <8 Mil. Gas GG 5 425 425 The whole number of votes given for the office of Lieutenant Governor was four hundred and twenty-four... . 424 Of which Edward F. Jones | ee hiins dredandfifty . . . 250 J oseph B. Carr received one hundred and siete nine . . , cet RE) te 169 W. James Dannoreet Saoetwod five few As 5 494 424 And so on as toeach officer voted for except Electors of President and Vice-President and city officers. Wehereby certify that the foregoing statement is correct in all respects. Dated this third day of November in the year A. D. 1885. d A.B. C. D., Inspectors of Election. The returns should be upon a single sheet of paper. In case it covers more than a single sheet, each half sheet must be signed at the end thereof by the Inspectors of Election. To the copies of such returns to be filed in the Town or City Clerk’s office and in the office of County Clerk, there should be an additional certificate signed by the Inspectors of Election, as follows : We hereby certify that the foregoing is a true copy of ELECTION RETURNS. 247 the original returns and statement made by us for the Board of County Canvassers. Dated this third day of November, A. D. 1885. A. B., Cc. D., E. F., Inspectors of Election. (Attach upon the sheet one of each of the regular or straight ballots certifying the whole number of each of such ballots given. Attach also any defective ballots cast and not included in the statement of votes herein returned, certifying opposite such defective ballots the portion thereof not counted and the reasons therefor.) Cut or split ballots used, not be attached. The certificate should commence upon the ballot as in the form below. That] the whole number of ballots received which correspond with the ballot hereto attach- ed was, etc. [Ballot to be at- jtached here.} [Repeat same upon each ballot attached.] We hereby certify that the foregoing statement is in all respects correct. Dated November 3, 1885. A. B., Cc. D., E. F., Inspectors of Election. § 255. Statement of vote given for Electors of President and Vice-President. Statement of votes given for election of President and Vice-President at a general election held in and for the first election district of the Town of Lancaster in the County of Erie, on the day of November, in the year 248 Tue Law OF SUPERVISORS. of our Lord, one thousand eight hundred and seventy- six, made by the Inspectors of Election in and for said district, viz. The whole number of votes given for the office of Electors of President and Vice-President was fifteen thousand (15,000) of which A. B. received two hundred . ... . 200: P. D.received two hundred . ... . 200 L. M. received two hundred . . . .. 200 and so on with each name 15,000 15,000 We hereby certify that the foregoing statement is correct in all respects. Dated November 1876. ap Ooo E. F. Inspectors of Election. (Specimens of the ballots received should be attached and statement written partly thereon and make and certify copies as in preceding statement.) § 256. Instruction to Inspectors. The following instructionsare generally furnished with the blanks for the use of Inspectors of Election and the Supervisor. To Inspectors of Election: In preparing the certificates be very particular : 1. That the whole number of votes stated as given for each office should correspond with the aggregate of those cast for each person voted therefor. Thus, where the bal- lot contains the name of more than one. person for such office, the whole number of votes cast equals the num- ber received by each of the several persons upon all the ballots for such office. 2. All the blanks relating to the number of votes must be filled with words (not figures) written at length. INSTRUCTIONS TO ELECTION INSPECTORS. 249 8. Attach specimen ballots to each copy of the returns upon the page containing the heading for such purpose. (A careful observance of the foregoing will remove the necessity of the Boara of County Canvassers return- ing certificates to the Inspectors, for correction, and avoid the delay incident to such correction, the expense for which devolves upon the towns whose officers correct the errors. ) § 257. Instruction to Supervisors. To the Supervisor : It is exceptional, when some of the election returns in the county are not returned by the Board of Canvassers to the Inspectors for the correction of errors, a careful examination of these in the quiet of home rather than in the confusion inseparable from the session of the Board, will greatly avoid this necessity. It is therefore recommended to each Supervisor, 1. Upon receiving these returns from the several Inspectors of Election, to carefully examine the same and see if they are correct in all the points above men- tioned. 9. If there is more than one election district in the town or ward, then tabulate the aggregate vote cast in the several districts of the same for each office, and the aggregate for whom cast being very certain of entire accuracy in these respects, and doing this previous to leaving home to attend the county canvass. 3. See that such return has one of each of the various regular ballots attached thereto. Care in these respects by the Supervisor will detect any errors: which the returns may contain, and thus offer time for their correction while at. home, and will greatly facilitate the completion of the canvass. These instructions ought to be carefully followed, as perfect accuracy and completeness in election returns are essential. ‘‘If any omissions or clerical errors appear therein to the Board of County Canvassers, that Board is put to the inconvenience and delay of sending 250 THe LAW OF SUPERVISORS. one of their number with such returns to the election district from which they were received, to give notice of such omission and mistakes to the Inspectors, where- upon it is the duty of the Inspectors to assemble and make such corrections as the facts of the case require ; but they are forbidden to change or alter any decisions before made by them and are duly allowed to cause their canvass to be correctly stated.” Election Code, § 736. OF THE BOARD OF COUNTY CANVASSERS AND THEIR PRO- CEEDINGS. § 258. Who compose the Board. The Supervisors or Assessors to whom the original statements of the canvass of votes in the towns or wards to which they respectively belong, shall have been delivered, shall form the County Board of Canvassers. Laws 1842, chap. 180, title V., § 1. : § 259. Character of the service to be performed by them. A Board of County Canvassers organized under the election laws of the state, although composed of town officers do not meet as such, or to perform duties relating exclusively to town or county matters, but meet as a distinct Board for a special services. Hankins v. The Mayor, Aldermen and Commonalty of the City of New York, 64 N. Y. 18. Boards of County Canvassers are created and organized not for a merely local purpose, but to execute in part, and in some of its details, a general law of the state, in the due execution of which every part of the state and every citizen has an interest. Ibid., 20. § 260. Where and when to meet. They shall meet at the office of the County Clerk on the Tuesday next following the election, before one o'clock in the afternoon of that day in all the counties of this state except the County of Hamilton, which shall meet on the first Friday next following said election, and BoaRrp OF CoUNTY CANVASSERS. O51 shall choose one of their number as chairman. Laws 1842, chap. 130, title V., § 2, as amended by Laws 1844, chap. 331. § 261. Duty of Canvassers of Hamilton County. It shall be the duty of the Board of Canvassers in the County of Hamilton, to canvass all the votes given in said county in the same manner as though the said county was fully organized ; and the said Board of Can- vassers shall, after they have thus canvassed, transmit to the County Clerk of the County of Fulton, a state- ment and certificate of all the votes for the office of Governor, Lieutenant-Governor, Senators, Representa- tives in Congress, and Electors, and Members of Assembly, or either of them, under their signatures, and to be certified by the County Clerk with his seal of office ; and which shall be sent to the County Clerk’s office in the County of Fulton on or before the first Tuesday next following such election, by some per- son to be designated and appointed by the Board of Can- vassers of the County of Hamilton. Laws 1844, chap. 331, § 2; 1 R. S. (8th ed.) 433, § 262. $262. Duty of Clerk and Canvassers of Fulton County. It shall be the duty of the County Clerk and the Board of Canvassers of the County of Fulton, to receive and canvass the votes transmitted to them, in the same manner as though each town in the County of Hamilton had sent its Canvasser with the canvass. Ibid., § 3. § 263. Secretary of Board of Canvassers. The Clerk of the county, or in his absence, his deputy, shall be Secretary of the Board. Laws 1842, chap. 130, title V., 8 1R.S. (8th ed.) 422. § 264. Oath of office to be taken. Seas The Chairman shall then administer the constitutional oath to each member of the Board, and the same oath shall be administered to him by the Secretary. Jbzd., §4. 252 Tue Law oF SUPERVISORS. The oath prescribed by the constitution (art. XII.) is in the following form, viz. : I do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of New York, and that I will faithfully dis- charge the duties of the office of Canvasser of the votes of the County of according to the best of my ability. The Court of Appeals having held that the Supervisor while acting as County Canvassers are not acting in the discharge of their duties as Supervisors. Hankins v. Mayor, etc., of New York, 64 N. Y. 18. It is conceived that the balance of the constitutional oath is not appli- cable and it is omitted. § 265. Quorum. The major part of the Supervisors or Assessors to whom the original statements of the canvass in the sev- eral districts of their towns or wards shall have been de- livered, shall be a sufficient number toconstitute a Board. Laws 1842, chap. 130, title V., § 5; 1 R. S. (8th ed.) 429. § 266. Estimate of votes to be made by the Board. The original statements of the canvass in each district shall then be produced, and from them the Board shall proceed to estimate the votes of the county and shall make such statements thereof as the nature of the elec- tion shall require ; such statements shall then be delivered to and deposited with the County Clerk. Jbid., § 6. § 267. Which is the original return. The duplicate return of the Inspectors of Election of an election district, required by Laws 1880, chap. 56, § 14 (see § 249, supra) to be filed in the County Clerk’s office, in the absence of an original return by such Inspector at the close of the election, is the return which the Board of County Canvassers are required to canvass. People v. Canvassers of Albany County, 20 Abb. N. C.19; 8. C. 46 Hun, 390. Such duplicate being in the possession of the County Clerk, who is ex officio Secretary of the Board of County BoarpD oF County CANVASSERS. 253 Canvassers, is practically in the possession of the Board ; and in the absence of a proper original, produced by the Supervisor, should be canvassed as the original, under its control. And the Board will be compelled by mandamus todo so. Ibid. After the Inspectors have, on the day of election, made two proper statements, and have separated, and have filed one in the County Clerk’s office, and one in the Town Clerk’s office, a second return, six days thereafter, by two of the three Inspectors, and signed and delivered to the Supervisor, is not an original return, and the Board of County Canvassers will, after a reasonable time to make a proper canvass of the duplicate in the County Clerk’s office, be restrained from acting upon or canvassing such second return. Ibid. § 268. The Board acts ministerially and not judicially. The Board in making a canvass, act purely ministerially, their action consisting of a simple matter of arithmetic, they not being at liberty to receive evidence of anything outside of the returns of the Inspectors. Morgan v. Quack enbush, 22 Barb. 73; People v. Pease, 27 N. Y. 45; People v. Van Slyck, 4 Cow. 297; People v. Supervisors, 12 Barb. 217-220 ; Felt’s Case, 11 Ab. Pr. N. S. 203. The powers of a Board of County Canvassers, being derived solely from the statute, which imposes purely ministerial duties, cannot be extended beyond a mere count of what appears on their face to be the original returns, and which are apparently regular. People v. Board of Canvassers of Wayne Co., 12 Abb. N. C. 77; $. C. 64; How. Pr. 334; Felt’s Case, 11 Ab. Pr. N. 8. 203. § 269. Powers of Board. A Board of County Canvassers have no power to deter- mine that votes cast for and returned to one name, e. g., Andrew C. Getty, were intended for and should be counted and allowed to a person bearing another name— Andrew H. Getty. It has no power to take proof as to such facts, nor to make such determination in its absence. 254 Tur Law OF SUPERVISORS. Kortz v. Board of Canvassers of Green Co., 12 Abb. N. C. 84. The rule that a middle letter is no part of a man’s name and may be regarded as surplusage, the law recog- nizing but one Christian name, has no application in such a case. The Board of County Canvassers cannot correct any er- rors in the returns of the District Inspectors. People v. Cook, 8 N. Y. 85-6. Failure to receive returns from one district will not prevent a canvass nor invalidate the election unless it appear that the votes not returned would have changed the result. Hx parte Heath, 3 Hill, 42. § 270. In relation to “ pasters.”’ The placing upon a ballot of a ‘‘paster” containing one name, over another name, indicates an intention to substitute one name for another. If it be placed over another name which is under the title of an office, it indicates an intention to substitute for that office the name upon the “‘ paster.” If it be done in such a man-. ner as to afford any ground for doubt whether the votes intended to designate two persons for the same office, that doubt may be safely left to be solved by a jury, in view of all the facts, the appearance of the ballot, and the surrounding circumstances. People v. Love, 63 Barb. 535. Where a “ paster” containing the title of an office and the name of a candidate underneath is so affixed upon a ticket as to cover the corresponding title on the ticket, or to partly cover that title and the title of another and different office underneath and the name of the person printed on the ticket for such second office, whether the intention of the voter was to vote for the one office or the other, and for which office, is not for the Inspectors or Canvassers to decide, but shall be left to be determined by the courts. Ibid. §271. When duties of the Board cease. When the Board have once legally canvassed the votes BoarpD oF County CANVASSERS. 255 returned to them they have exhausted their power over that subject, or cannot afterwards reverse their decision by making a different determination. Hadley v. Mayor, etc., of Albany, 33 N. Y! 603; Morgan v. Quackenbush, 22 Barb. 72, 77. But they may be required to re-convene to correct errors since Laws 1880, chap. 480, for which see post, 88 311, 312. § 272. Separate statements to be made. They shall make a separate statement containing the whole number of votes given in such county for the office of Governor, Lieutenant-Governor, [Chief and Associate] Judges of the Court of Appeals, Justice of the Supreme Court, Secretary of State, Comptroller, Treasurer, Attorney-General, State Engineer and Surveyor, Senator in each district, and Representative in Congress in each district or any or either of them ; the names of the persons for whom such votes were given, and the number of votes given for each ; another, of the votes given for all county officers, any or either of them ; another, of the votes given for Member of Assembly in each assembly district ; and another, of the votes given for Electors of President and Vice-President ; and another, of the votes given for any proposed amendment of the constitution. Laws 1842, chap. 130, title V., § 7, as amended by laws 1847, chap. 240, § 14, and Const., art. VI., § 2, and art. V., §§ 3 and 4. § 273. School Commissioners. Since the above law was enacted the office of School Commissioner was created and provision made for the election of such officers. The laws regulating the election of and canvassing the votes of county officers shall apply to such elections. Laws 1864, chap. 555, title IT., § 3. § 274. Number of votes and names written at length. In such statements, the whole number of votes given in each town and district, the names of the candidates and the number of votes given to each, shall be written 256 THe LAW OF SUPERVISORS. out in words at full length. Laws 1842, chap. 130, title V.,§8; 1R.S. (8th ed.) 423. § 275. Statements to be certified and copy delivered to County Clerk. Each statement shall be certified as correct, and attested by the signature of the Chairman and Secretary of the Board ; and a copy of each, thus certified and attested, shall be delivered to the County Clerk, to be recorded in his office. Jbid., § 9. § 276. Board to determine what persons have been elected Members of Assembly and county officers. Upon the statement of votes given for Members of Assembly and county officers, the Board shall proceed to determine what person or persons have, by the greatest number of votes, been duly elected to each of the offices mentioned in each statement. Jbzd., § 10. ‘§ 277. Such determination to be published. The Board shall cause a copy of every such determina- tion and of the statement upon which it shall be made, to be published in one or more of the newspapers printed in the county. Jbid., §11. Designation of newspapers. County Boards of Super- visors shall also have authority, by resolution to be duly entered in their minutes of proceedings and tobe published therewith, to determine, after the fifteenth day of November, eighteen hundred and seventy-five, except in the County of Kings, in what newspapers, not to exceed two, the election notices issued by the Secretary of State, and the official canvass shall, be published, and to fix the compensation for such publication. But in cases where such publication shall be ordered to be made in two news- papers, such papers shall be of opposite political character Laws 1875, chap. 482, § 7, { 3. § 278. Proceedings in case Supervisors or Assessors cannot attend Board. If any one of the Supervisors or Assessors appointed to Boarp or County CANVASSERS. 257 attend the county canvass shall be unable to attend the meeting of the Board on the day appointed for such meet- ing, he shall, on or before that day, cause to be delivered at the office of the County Clerk the original statement of the votes of his town or ward. Laws 1842, chap. 130, title V., § 12; 1 R. S. (8th ed.) 493. § 279. Duty of those who attend. If on that day a majority of the County Canvassers shall not attend, or the statements of the votes from any dis- trict in the county shall not be produced, the Canvassers then present shall adjourn to someconvenient hour of the next day. Ibid., § 18. § 280. At the adjourned meeting. At that hour they shall again meet, and the Canvass- ers then attending, although less than a majority of the whole, shall organize themselves asa Board, and upon the statements, or certified copies thereof then produced, shall proceed to estimate, state and certify the votes of the county, in the manner before directed. Ibid, § 14. § 281. Statements containing omissicns, etc., may be returned to be corrected. Tf, upon proceeding to canvass the votes, it shall clearly appear to the Canvassers that in any statement produced to them, certain matters are omitted in such statement, which should have been inserted, or that any mistakes which are clerical merely, exist, they shall cause the said statement to be sent by one of their number (who they shall depute for that purpose) to the Town or Ward In- spectors and Town or Ward Canvassers of the town or ward from whom they were received, to have the same corrected, and the said Canvasser so deputed shall im- mediately proceed and give notice to the said Town or Ward Inspectors and Canvassers, whose duty it shall be forthwith to assemble together and make such correc- tion as the facts of the case require; but such Town or Ward Inspectors and Canvassers shall not at such meet- ing, change or alter any decision before made by them, but shall only cause their canvass to be correctly stated ; 17 958 THE LAW OF SUPERVISORS. and the Board of County Canvassers are authorized to adjourn from day to day, for the purpose of obtaining and receiving such statement, such adjournment not to extend beyond three days. Jbid., § 15. § 282. Duty of Inspectors when statement is returned for cor- rection. Where a return is remitted to a Board of Inspectors of Election for correction, it is their duty to hold a consul- tation free from the interruption and suggestions of others. Their action should not be influenced by outside pressure from friends of interested candidates. When they deliberate, they should exclude spectators, and after a quiet conversation and consultation, they should affix their names to a statement showing the result of the poll. People v. Payne, 12 Abb. N. C. 103. As it is the duty of Inspectors of Election to make in their return, a true statement of the result of the elec- tion in their district, it follows that until sucha return has been made, their official duties have not been fully per- formed. Their duties are not discharged by making a false or erroneous return, nor do they thereby become functus officio. People v. Board of Canvassers of Greene County, 12 Abb. N. C. 95; 8. C. 64 How. Pr. 334. When mandamus will issue. Where there is reason- able ground to believe that the returns of a Board of Inspectors of an election district is not accurate, a man- damus will issue requiring the Board of County Canvas- sers to remit such returns to the Board of Inspectors for such correction as they may see fit to make. Jbid. Such mandamus will issue although the canvass has been completed and a certificate of election granted to the one who has already qualified for the office in dispute. Ibid. A return of an election district having been by direc- tion of the court, returned to the Inspectors for correc- tion, and an application being made for a mandamus directing them to re-assemble to make a full and true Boarp OF County CANVASSERS. 259 return to the Board of County Canvassers of all the votes cast for the office in dispute, held, that such manda- mus shouldissue, although two of the Inspectors deposed that the return they made was ‘‘ substantially ” accurate, and that if they met as a Board they could not change the same in any ‘‘ material particular,” and it appeared that there had been a hasty assemblage of the Inspectors and that they had made a return to the Board of Can- vassers to the same effect. People v. Payne, 12 Abb. N. C. 108. In such case, it appearing that the error, if any, in the original return had been made by incorrectly adding the votes counted by each Inspector, held, that the manda- mus should direct a return separately of the count of each Inspector. Ibid. § 283. Character of corrections that may be made. The 15th section, which authorizes the County Board to depute one of their number to return the certificate of the District Inspectors to those officers to supply omis- sions and correct clerical mistakes, if any exist, is all the correcting or revising power which the County Board has over the District Board. The corrections in this case are to be made by the latter Board, and they are not per- mitted to alter any decision before made by them. People v. Cook, 8 N. Y. 85-6. § 284. Validity of returns of Inspectors. Such returns are valid only so far as they are confined to the facts which the Inspectors are required toset forth, and if they go beyond these and state others, such state- ments will be treated as mere surplusage. x parte Heath, 3 Hill, 43. OF THE DUTIES AND PROCEEDINGS OF THE COUNTY CLERK. § 285. Clerk to deliver statements. The County Clerk shall deliver to the Board of County Canvassers, all the certified statements of the votes taken in each town or ward, at the next preceding election, that shall have been received at his office. Laws 1842, chap. 130, title V., § 16; 1 R. 8. (8th ed.) 424. 260 Tue Law OF SUPERVISORS. § 286. To procure those not received by him. If, on the day appointed for the meeting of the Board of County Canvassers, the Board shall not have been organized owing to a deficient return of the votes of the county, the County Clerk shall, by a special messenger, or otherwise, obtain necessary statements or certified copies thereof, in time to be produced to the Board at their next meeting. Ibid., § 17. § 287. To record statements. The County Clerk shall record in his office, all the statements and certificates that shall have been delivered tohim by the County Board of Canvassers, and shall keep a proper book for that purpose. Jbid., § 18. § 288. To prepare three copies. Of the statement and certificate of the votes for the of- fice of Governor, Lieutenant-Governor, [Chief and As- sociate] Judges of the Court of Appeals, Justices of the Su- preme Court, Secretary of State, Comptroller, Treasurer of the State, Attorney-General, State Engineer and Survey- or, Senators and Representatives in Congress, or either of them, he shall prepare three certified copies under his sig- nature, and sealed with his seal of office. Ibid., § 19, as amended by Laws 1847, chap. 240, § 18, and as modified by Const., art. VI., § 2 and art. 5, §§ 3 and 4. The statute included Cierk of the Court of Appeals, which is omitted for the reason that by Art. VI., § 2 of the constitution, as amended at the election in 1869, the power of appointment of such Clerk is vested in the Judges of the Court of Appeals. Provision for the election of a Chief Judge and six Associate Judges of the Court of Appeals was also made in that section. The statute also included Canal Commissioners and Inspectors of State Prisons, both of which officers were abolished by Art. V., §§ 3 and 4 of the constitution, as amended at the election in 1876. § 289. To transmit the same to Governor, Secretary and Comptroller. Within five days after the adjournment of the Board of CLERK OF BOARD OF CANVASSERS. 261 County Canvassers, the County Clerk shall deposit in the nearest post-office, directed to the Governor, to the Secretary of State and to the Comptroller, each, one of the certified copies of the statement and certificates of votes, so prepared by him. Laws 1842, chap. 130, title V., $20; 1R. 8. 494. § 290. To deliver copy of certificate to county officers. He shal! prepare as many certified copies of each certificate of the determination of the Board of Coun- ty Canvassers, as there are persons declared to be elec- ted in such certificate, and shall, without delay, de- liver one of such copies to each person so elected. Ibid., § 21, , § 291. List to be sent to Secretary of State. He shall transmit to the Secretary of State, within twenty days after a general election, and within ten days after a special election, a list of the names of the persons elected in the county as Members of Assembly, and also a list of the names of all persons elected to any county office at such election, with the places of their residence respectively. Ibid., § 22. This certificate would also include School Commission- ers. Laws 1864, chap. 555, title IT., § 3. § 292. County Clerk to transmit copy of canvass. It shall be the duty of the Clerk of each county in the state, to transmit by mail to the Secretary of State, on or before the fifteenth day of December in each year, a certified copy of the official canvass of the votes cast in said county by election districts, at the then next preceding general election. Laws 1878, chap. 474. OF THE ELECTION OF ELECTORS OF PRESIDENT AND VICE- PRESIDENT. § 293. Election by general ticket. At the general election in November, preceding the 262 THe Law OF SUPERVISORS. time fixed by the law of the United States for the choice of President and Vice-President of the United States, there shall be elected, by general ticket, as many Elect- ors of President and Vice-President as this state shall be entitled to appoint; and each Elector in this state shall have a right to vote for the whole number ; and the several persons to the number required to be chosen, having the highest number of votes, shall be declared and deemed duly appointed Electors. Laws 1842, chap. 130, title VI.;1 R.S. (8th ed.) 427. § 294. Duty of County Clerk. The County Clerk of each county shall make three certified copies of the statement of votes given for Elect- ors in his county immediately after recording the same, and forthwith transmit by mail, one of such certified copies to the Governor, another to the Secretary of State, and deliver the other as hereinafter directed. Ibid., § 4. § 295. One certified copy to be delivered to Secretary of State. One of the certified copies of such statement of votes given in each of the several counties of the state, shall be delivered by the Clerks of such counties respectively, or by their respective Deputy Clerks, as herein directed, on or before the second day succeeding that on which the canvass shall have been made, to the Secretary of State. Ibid., § 5, as amended by Laws 1885, chap. 446, $1 Sections 6, 7, 8, 9, 10, 11, 12, 13 and 18 of the sume title, by which provisions were made for the time and mode of delivery of such certified copy to the Secretary of State, by various counties, were repealed by Laws 1885, chap. 446, § 2, leaving the law uniform and gen- eral as to every county in the state, as provided in the two last sections. § 296. Punishment of County Clerk, for neglect, etc. If any County Clerk, or Deputy County Clerk, or other officer on whom any duty is enjoined in this act, shall be guilty of any wilfull neglect of such duty, or of CLERK OF BOARD OF CANVASSERS. 263 any corrupt conduct in the execution of the same, and be thereof convicted, he shall be deemed guilty of a mis- demeanor, punishable by fine not exceeding one thou- sand dollars, or imprisonment not exceeding one year, or both ; and if any person shall be found guilty of tak- ing away from any of the said County Clerks or Deputy County Clerks, either by force or in any other manner, any such certificate intrusted to his care, or of wilfully doing any act that shall defeat the due delivery thereof as directed by this act, he shall be punished by imprison- ment in the state’s prison at hard labor for not less than two nor exceeding four years. Laws 1842, chap. 130, title VI., § 19, as amended by Laws 1885, chap. 446, § 3. § 297. Destroying or delaying election returns. A messenger appointed by authority of law to receive and carry a report, certificate or certified copy of any statement relating to the result of any election, who wilfully mutilates, tears, defaces, obliterates or destroys the same, or does any other act which prevents the delivery of it as required by law, and a person who takes away from such messenger any such report, certificate or certified copy, with intent to prevent its delivery, or who wilfully does any injury or other act in this section specified, is punishable by imprisonment in a state prison not exceeding five years, and not less than two years. Penal Code, § 649. § 298. County Clerk’s compensation. The said County Clerks shall receive for their compen- sation, respectively, five cents per mile for each mile travelled by the usual route, going and returning, to be audited by the Comptroller upon the certificate of the Secretary of State. Laws 1842, chap. 120, title 6, § 20, as amended by Laws 1885, chap. 446, § 4. § 299. Records of the Board to be kept by the Clerk, style of. The statute makes the County Clerk, or in his absence his Deputy, the Secretary of the Board of County Can- vassers, and it is his duty to make up a record of the 264 THE Law OF SUPERVISORS. proceedings of the Board, which is published with the proceedings of the Board of Supervisors at their annual session. I have taken from the published proceedings of the Board of County Canvassers of Erie County a specimen of the manner of keeping such records. PROCEEDINGS OF THE BOARD OF COUNTY CANVASSERS, NOVEMBER, 1885. STaTE or New York, Erie County Clerk’s office, \ Buffalo, Nov. 10, 1885. J The Board of County Canvassers for Erie County having met at the office of the County Clerk of said County of Erie, pursuant to the statute, for the purpose of canvassing the votes given at the last general election in said county, Mr. W. F. Fisher moved that N. B. Gatchell be elected Chairman of said Board of County Canvassers. Carried. The Secretary then administered the constitutional oath to the Chairman, as follows: STATE OF NEw YORK, County of Erie. oa I do solemnly swear that I will support the Constitu- tion of the United States and the Constitution of the State of New York, and that I will faithfully discharge the duties of the office of Chairman of the Board of County Canvassers in and for the County of Erie, ac- cording to the best of my ability. N. B. GATCHELL. Sworn and subscribed before me this tenth day of November, A. D. 1885. J. E. EWELL, County Clerk and Secretary. The Chairman then administered the constitutional oath to each of the members of the Board, as follows: StaTeE oF New York, County of Erie. t = I do solemnly swear that I will support the Constitu- BoarpD oF County CANVASSERS, 265 tion of the United States and the Constitution of the State of New York, and that I will faithfully discharge the duties of the office of Member of the Board of County Canvassers in and for the County or Erie, according to the best of my ability. Dated at Buffalo, N. Y., this 10th day of November, 1885. Philo D. Beard, O. C. Brown, H. B. Christy, Charles Denny, H. T. Foster, Cyrus Hurd, Dennis Corbett, Martin Keller, Charles Kibler, Joseph Lenhard, Wm. J. Magoffin, N. Merzig, Michael H. O’Brian, G. T. Patterson, Charles B. Russell, Job Southwick, Jr., Charles H. Sweet, Horace W. White, C. N. Brayton, C. W. Carter, Geo. A. Davis, Wm. F. Fisher, Frank W. Hess, J. H. Johnson, F. Kappler, Michael Kelly, Charles Kiefer, J. H. Long, Alphonso J. Meyer, G. W. Nichols, Henry H. Persons, Martin Pleuthner, R. K. Smither, Frederick Stephan, » W. H. Ticknor, Dean Wilson, Jacob Wurst, H. H. Voght. Mr. R. K. Smither presented the folowing resolution and moved its adoption: Resolved, That Messrs. W. F. Fisher, H. B. Christy Frederick. Stephan, H. T. Foster, Charles H. Sweet, George A. Davis and Charles N. Brayton be, and they are hereby appointed a Committee to examine and com- plete the election returns of the various wards and towns of this county, on file in the office of the County Clerk of this County, and report thereon at their earliest con- venience, to this Board. Adopted. Mr. Smither moved that the Board adjourn, to meet at L. G. Wiltse, 266 THe LAW OF SUPERVISORS. the session room of the Board of Supervisors, Wednesday, November 11, 1885, at 12 o’clock M. Carried. J. E. EWELL, County Clerk and Secretary. Wednesday, Nov. 11, 1885, 12 M. The Board met pursuant to adjournment, Mr. Gatchel in the chair. The following members were Present—Messrs. Beard, Brayton, Carter, Christy, Corbett, Davis, F. M. Fisher, W. F. Fisher, Foster, Gat- chell, Holway, Johnson, Keller, Kelly, Kibler, Long, Pat terson, Persons, Russell,Seil, South wick,Stephens, Sweet, White, Wurst. Absent-—Messrs., Baitz, Brown, Dechent, Denny, Gillig, Hess, Hurd, Kappler, Keifer, Krumholz, Lenhard, Magof. fin, Meyer, Merzig, Moest, Nichols, O’Brian, Pleuthner, Smither, Ticknor, Tyrrell, Voght, Wilson, Wiltse, Wolfe. Mr. Fisher, of the committee appointed to examine the election returns, made a verbal report of progress. The Chairman declared the Board adjourned to Thurs- day, November 12, at 12 M. J. KE. EWELL, County Clerk and Secretary. THurspDay, Nov. 12, 1885, 12 M. The Board met pursuant to adjournment, Mr. Gatchel in the chair. The following members were present : Messrs. Beard, Christy, Gatchell, Hurd, Johnson, Kappler, Keller, Magoffin, Persons, Smither, Sweet. Absent—Messrs. Baitz, Brayton, Brown, Carter, Cor- bett, Davis, Dechent, Denny, F. M. Fisher, W. F. Fish- er, Foster, Gillig, Hess, Holway, Kelly, Kibler, Kiefer, Krumholz, Lenhard, Long, Meyer, Merzig, Moest, Nichols, O’ Brian, Patterson, Pleuthner, Russell, Seil, Southwick, Stephan, Ticknor, Tyrell, Voght, White, Wilson, Wurst. ; BOARD OF CouNTY CANVASSERS. 267 Mr. Smither moved to adjourn to Friday, November 18, 1885, at 11.30 o’clock A. M. Carried. J. EK. EWELL, County Clerk and Secretary. Friday, Nov. 13, 1885, 11.80 A. M. The Board met pursuant toadjournment, Mr. Gatchell in the chair. The following members were present : Messrs. Baitz, Beard, Brayton, Brown, Christy, Cor- bett, Dechent, Ww. F. Fisher, Foster, Gatchell, Gillig, Holway, Hurd, Johnson, Kelly, Kiefer; Magoffin, Moest, Nichols, Persons, Russell, Seil, Smither, Stephan, Sweet, Ticknor, White, Wilson, Absent—Messrs. Carter, Davis, Denny, F. M. Fisher, Hess, Kappler, Keller, Kibler, Krumholz, Lenhard, Long, Meyer, Merzig, O’ Brian, Pleuthner, Southwick, Tyrrell, Voght, Wiltse, Wolfe, Wurst. Mr. W. F. Fisher, from the Special Committee on Election Returns, submitted the following report, which was read by the Secretary. The Honorable the Board of Supervisors : Your Committee appointed to examine the election returns from the several election districts of the County of Erie, in the vote cast at the general election held on the third day of November, 1885, respectfully report that the statements and tables of the electoral vote of Erie County are complete and correct, and they hereby sub- mit the same for your approval and adoption thereof. Respectfully submitted, WM. F. FISHER, Chairman. CHARLES H. SWEET, HARRISON B. CHRISTY, C. N. BRAYTON, H. T. FOSTER, FREDERICK STEPHAN, GEORGE A. DAVIS. THe Law OF SUPERVISORS. 68 Nn ‘weULNeYD “ITHHOLVD ‘ad ‘N ‘seougo oy} [7e yim Ae oules ul pasn01g ‘Areyoroag pue x10) UND “TIAMA “A L SOL9P | 6S OLIbS [619T% @SE1S | U6S9F {08 IL G38 (906ES |tso1e weeeee| ee eeee cetee weeeee cr arteceessosssss9-qoLgsiq: pg ‘ploowog, weneee |e neee weeees aeeeee ~ qol1ISIC_ Ps ‘pxoouo0g anne weeee- seeeee a--- 7" qOLsIq IST ‘paoouog weeeee] cee nee -- “7* qolagsiq ps ‘surTTOD neeeee cases teneee sees “""gOLdqSI 48 ‘SUTTIOD aseasal| seenee|i-cwses|ezzsseleesece bees sees PtFee eo Qp{OD seeetel| Weenie) Giese] see cisii| 340 > Ser e | el #| ¢] 2 | TH! | BE i 3 nee ke 8 8 680 3 SPB 3 hn of S 3° Beto oa OgGla 4668 % Bae a5 § < =o zo 3° Oo a ° ¢ s Bos 26 2 gse 3 sae | ge ES ge | TBE | 68S | otea | OF = oo ° © 5 9 < =a 3 gem i a” Ba 28 ee geet 2 “‘SNMOL S g pe 9 Q é g odke a gs % RaQ ne g 3 ey go a6 ; moo > os o & S “oO £2 S858 pile] 2) 2 | abi liga : B as , Bes eek ——pue poipunt, 4ysto puesnoy} suo ieok oY} UL SUSeT[ [PNUTY ALY} 4 siostadadng jo prvog et} £q peyoet109 sv jo AyuNOH 94} Ul SpIvAA pue SUMO], [B19A9S At} UL ‘parast Sexe, JO JuUNOUIY pue ‘oyeIsy TeUOSIEd Pue eay Jo suotyenyer oyedoissy oy} JO INANALVLS -reTTorjdu0g ey} £q peqisoseid ulI0,q “009 8 EQUALIZATION OF ASSESSMENTS, 403 § 501. Corrected assessment rolls to be copied. As soon as the rolls are completed, that is, as soon as the assessments have been equalized, the several rolls are to be copied. It is the usual practice that the roll which the Supervisor lays before the Board, is disposed of as provided in the next section, while the copy is the one to which the Collector’s warrant is attached, and upon which the taxes are collected. The expense of making the copy of the several rolls is included in the Supervisor’s account and ordered paid by the Board. § 502. Assessment roll, how disposed of. They shall cause the corrected assessment roll of such town or ward, or a copy thereof, to be delivered to each of the Supervisors of the several towns or wards, who shall deliver the same to the Clerk of their city or town, to be kept by him for the use of such city or town. 1R. 8. 395, § 35, (2 R. 8. [8th ed.] 1105.) § 503. Defective copy does not invalidate sale. Upon an application to the Comptroller for the uabella: tion of asale of non-resident land, for the non-payment of taxes assessed against it for 1870, it was shown by the applicant that the original tax roll for that year was lost; that a paper on file in the Town Clerk’s office, which purported to be a copy of the corrected assessment roll of the town for that year, did not have upon or an- nexed to it the oath of the Assessors, nor was there any “fifth column,” as required by the former statute, nor was the amount of the tax set down in dollars and cents. The affidavits of the Collector, and the certificate of the County Treasurer, filed in the office of the Comptroller, as required by law, were sufficient in form and substance to authorize the Comptroller to make the sale; and it was held that the mere fact that there were defects in the copy filed in the Town Clerk’s office did not estab- lish the existence of the same defects in the original roll ; and further, that the filing of a defective copy of the assessment roll in the Town Clerk’s office did not invali- date the sale, and the action of the Comptroller in refus- 404 Tur LAw OF SUPERVISORS. ing to cancel the sale was sustained. People v. Chapin, 38 Hun, 272. The mere fact that a defect exists in the copy roll de- livered to the Town Clerk or to the Assessor is not suffi- cient from which to infer that a similar defect existed in the original roll. Ibid.; Bradley v. Ward, 58 N. Y. 401. § 504, Equalization proceedings of the Board to be published. It shall be the duty of the Board of Supervisors in each county in this state, annually to publish in one or more public newspapers in such county * * * their pro- ceedings upon the equalization of the assessment roll. Laws 1839, chap. 369, §1; 2 R. 8. (8th ed.) 10239 $505. Clerk of the Board to transmit to Comptroller a cer tificate, etc. The Clerk of the Board of Supervisors of the several counties in this state shall, on or before the second Mon- day in December in each year, transmit to the Comptroller, by mail, in the form which shall be prescribed by the Comptroller, a certificate or return of the aggregate val- ued amount of real and personal estate in each town or ward, as corrected by the Board of Supervisors. The Clerk who shall neglect or refuse to make such return shall forfeit to the people of this state the sum of fifty dollars. Laws 1836, chap. 117; 2 R. 8. (8th ed.) 1106- For form of report see § 500. § 506. In Oneida County. For this county a special local law was enacted, Laws 1881, chap. 673, providing that during the first three days of the annual session of the Board of Supervisors they shall appoint three persons in each assembly district in the county, as nearly equally divided between the two leading political parties as may be, who shall constitute the Board of Equalization for the county, and whose report or the report of a majority of them, is final. No person shall be eligible to such appointment who was not assessed upon the assessment roll of the city or town in which he resides, made next preceding such appoint- ment, for a freehold estate in his own right, to an amount, in cities, not less then $1000, and in towns EQUALIZATION OF ASSESSMENTS. 405 not less then $500, or who holds any county office, the compensation of which is determined and provided by said Board of Supervisors, or who is not at the time a resident of the assembly district from which he is appointed. A Supervisor is also disqualified. And yet the compensation for these gentlemen is to be provided by the Board of Supervisors. As their compensation is limited to five days it is fair to assume that they -work no longer than they are paid for, and hence equalization is to be made in five days. In what manner such a Board can equalize the assess- ments better than a committee of the Board of Super- visors not limited to five days, isnot apparent. At best it seems to be one of those unnecessary local arrangements which tend rather to complicate and mystify a plain simple duty, which the general statutes devolve upon the Boards of Supervisors, and to destroy the uniformity and symmetry of the laws regulating the taxation of property of the state, which are already considerably mixed up and disfigured by local legislation in various counties. Still, it must be said of the work performed by this committee that it is probably the most perfect of any county in the state. BY BOARD OF STATE ASSESSORS. § 507. Any Supervisor may appeal from equalization. Any Supervisor may appeal in behalf of the town, city or ward, which he wholly or in part represents to the State Assessors from any act or decision of the Board of Su- pervisors in the equalization of assessments, and the cor- rection of the assessment rolls, under the provisions of the first title of chapter thirteen, of the first part of the Revised Statutes. Such appeal shall be brought by serving a notice there- of, within ten days after the corrected assessment roll shall be completed by the Board of Supervisors, on the Chairman and Clerk of said Board, and also filing such notice in the office of the Clerk of the county, together with the affidavit of the Superviscr so appealing, that in 406 THe Law OF SUPERVISORS. his opinion injustice has been done to such town, city or ward by the act or decision appealed from. A notice of such appeal shall be served on the State Assessors by filing the same in the office of the Secretary of State, within ten days after the final completion of the correct- ed assessment rolls by the Board of Supervisors, and such notice shall also be served on the Chairman of said Board of Supervisors within the same time. Laws 1859, chap. 312, § 13; Laws 1874, chap. 351, § 5, asamended by Laws 1880, chap. 80, §2; 2R.S. (8th ed.) 1110, 1112. By the act of 1859, chap. 32, § 13 the appeals were taken to the Comptroller of the state and that section wasmodi- . fied, but not amended, by Laws 1874, chap. 351, § 5, and the latter act further amended by Laws 1880, chap. 80, § 2, The above section as here given contains the laws as thus modified and amended. § 508. Forms and rules to be prepared by State Assessors. It shall be the duty of the State Assessors to prepare a. form of petition and notice of appeal from decisions of Boards of Supervisors, in the equalization of assessments in their respective counties, and also to prepare rules and regulations in relation to bringing such appeals and the hearing or trial thereof, which shall be submitted to the Comptroller for his approval, and when approved shall be the forms, rules and regulations of said Board of State Assessors, and be filed in the office of the Comptroller. Law 1876, ch. 49, § 1; 2 R.S. (8th ed.) 11138. § 509. Rules and regulations of the Board of State Assessors. Pursuant to the provisions of chapter 49 of the Laws of 1876, the Board of State Assessors make and declare the following rules and regulations relative to the bringing and hearing of appeals to said Board from de- cisions of Boards of Supervisors, viz. : First. The notice of appeal and affidavit thereto shall be substantially in the following form : To the Board of Supervisors of the County of Gentlemen: Take notice that, as Supervisor of the EQUALIZATION OF ASSESSMENTS, 407 Town of , [hereby appeal to the State Assessors of the State of New York, in behalf of said town, from the act or decision of the Board of Supervisors of said county of , in the equalization of assessments and correction of the assessment rolls of the different towns in said county, made on the day of A. D. 18 Dated A. D. 18 Supervisor of the Town of Affidavit. Strate oF New York, ge County, ; , in said County of , being duly sworn, de- poses and says he is the Supervisor of the Town of ; and in his opinion, injustice has been done to said town by the act or decision of the Board of Supervisors of the County of , in the equalization of assessments and the correction of the assessment rolls of said county, as made on the day of A. D. 18 Subscribed and sworn to before me, this day of A. D. 18 Second. On the hearing, the appellant shall be deemed to have the affirmative, and the action of the Board of Supervisors shall be regarded prima facie, as correct, un- til such presumption is overcome by evidence establish- ing the allegation of injustice done to the appealing town, ward or city. Third. The Board of Supervisors shall be deemed the respondent. Fourth. In order to establish the allegation of injus- tice and erroneous equalization, the appellant must show by evidence, oral, documentary (or by depositions, when said Board so directs) the full and true value of sufficient property in each town, ward or city of said county, to determine the full and true value of the whole of the property of said town, ward or city, with reasonable ac- curacy. Fifth. The Board of State Assessors will require the 408 THe LAW OF SUPERVISORS. production of all the assessment rolls on which the Board of Supervisors made the equalization appealed from, and such rolls will be regarded as a part of the evidence in the case. Sixth. The appellant will be required to present a correct statement of the railroads in each of the towns and cities of the county. Such statement must contain the name of the railroad, miles of road bed and width of the same, number of continuous tracks and length of switches or side tracts, real estate, if any, outside of road bed, and the estimated full value of all buildings, as depots, workshops, round houses, water tanks, etc. Seventh. The appellant will also be required to pre- sent at such hearing, the area in acres and assessment (for purpose of county and state taxation) of each incor- porated village in the county. This will not be required in counties where Assessors have made separate assess- ments for farm and village property. Eighth. The appeal willbe heard at the time and place appointed, unless sufficient cause shall then and there be shown by affidavit, why an adjournment should be granted. Ninth. After the fixing of the time and place for the hearing of said appeal, it shall be the duty of the appellant or his successor, to serve notice of the said hearing and the time and place thereof, on the Clerk of the Board of Supervisors of the county wherein said appeal originates, at least fourteen days prior to the time so appointed, personally or by mail, addressed to him at his place of residence, or of his usual post-office address; and to furnish said Board of State Assessors at the time of hear- ing, proof by affidavit of the due service of said notice, made by the person making such service, or by the writ- ten admission of such service, signed by said Clerk, (unless some person duly authorized shall appear at said hearing in behalf of the respondents). In case of vacancy in the office of Clerk of the Board of Supervisors, then such notice shall be served by the said appellant or his suc- cessor, upon the Clerk of the said county, within the time EQUALIZATION OF ASSESSMENTS, 409 and in the manner hereinbefore provided. It shall be the duty of the Clerk receiving such notice, to immediately serve a copy of the same on each of the Supervisors of said county, personally or by mail, addressed to him at his. place of residence, or of his usual post-office address. - Tenth. The Board of State Assessors will require a de- tailed and itemized statement of all expenses claimed by the respective parties, verified by affidavit proving the amount of such disbursements and charges, and showing the necessity thereof, before said Board will proceed to certify the reasonable costs and expenses arising from and connected with said appeal. But the aggregate of all the expenses and counsel fees which may he certified to the appellant shall not exceed two thousand dollars, nor shall the aggregate of all the expenses and counsel fees which may be certified to the respondent exceed two thousand dollars. Eleventh. When more than one appeal shall be pend- ing in a county, brought by different Supervisors, on be- half of different towns, wards or cities, said appeals shall all be heard at the same time and together. Twelfth. Not more than one counsel will be heard on either side, on the final argument of the matter, unless for special reason then shown. Thirteenth. Subpoenas will be furnished on request, by the State Assessors, to either party. Examined and approved. Ss. N. WOOD, ALFRED C. CHAPIN, JOHN D. ELLIS, Comptroller. J. L. WILLIAMS, State Assessors. Albany, January 22, 1884. § 510. State Assessors to hear proofs. The State Assessors shall hear the proofs of the parties, which may be presented in the form of affidavit or other- wise, as they shall direct ; after hearing such proofs they shall determine whether any, and if any, what deduction ought to have been made from the corrected valuations of such town, city or ward ; and in the assessment and - collection of taxes of the next followiyg year, such town 410 THe LAW OF SUPERVISORS. or city shall be credited with the amount of taxes levied from it on such excess of valuation, and the same shall be levied and collected from the other towns and cities of the county. Laws 1859, chap. 312, § 13; see note to $ 508. § 511. Power of Assessors to compel attendance of witnesses, ete. The said State Assessors shall have power to subpoena witnesses and to compel their attendance and to examine them under oath in the same manner as though such subpoena had issued from a court of record of this state, and all state, county, city and town officers shall furnish them with all information belonging to or connected with their respective offices, and copies of all papers in their various offices, which the Assessors may require of them in the proper discharge of their duties. Laws 1859, chap. 312, § 4, as amended by Laws 1884, chap. 485, § 2. § 512. State Assessors may appoint stenographers. The Board of State Assessors may appoint a stenogra- pher to report the testimony and proceedings in cases of appeals from the equalization of assessments by Boards of Supervisors. Laws 1884, chap. 280, § 1. § 513. Their compensation. The compensation of such stenographer shall be fixed by the Board of State Assessors, and be taxed as are other costs in the case, but shall not exceed ten dollars per day, and ten cents per folio for copies of such testi- mony and proceedings, and actual and necessary travel- ling and hotel expenses. Jbid., § 2. § 514. Appeals, where heard—dismissal of appeals. Every such appeal duly brought shall be heard by said Board in the county in which such appeal origi- nated, at a time and place to be fixed by said Board, and they shall notify the Supervisor of the town, ward or city, appealing, by mail, of the time and place so fixed upon, at least twenty days prior thereto. In case the . appellant or his successor fails to appear and produce evidence to sustaig the appeal at the time and place ap- EQUALIZATION OF ASSESSMENTS. 4l1 pointed, or on the day to which such hearing or trial shall have been adjourned, if an adjournment shall have been had, said State Assessors shall make an order dis- missing said appeal as not sustained, which shall have the same effect in all respects as if said appeal had not been sustained after a trial or hearing on the merits on evidence. Laws 1876, chap. 49, § 2;2R.S. (8th ed.) 1118. § 515. Hearing and and determination of appeal. On every such hearing or trial, the evidence shall in part relate to the assessment and full and true value of real and personal property, and the said State Assessors shall determine whether or not injustice. has been done to the town, ward or city, so appealing, in the equaliza- tion of real and personal property assessed therein, as compared with the other wards, towns or cities of said county, and shall determine whether any, and if any, what deductions ought to be made from the aggregate corrected valuation of said real and personal property, as made by the Board of Supervisors, and shall also determine to what town or towns, ward or wards, city or cities, in such county, said deductions, if any, shall be added, and shall certify their determination in writing to said Board of Supervisors, and forward the same by mail within ten days thereafter, to the Clerk of said Board of Supervisors, directed to him at his post-office address. Laws 1876, chap. 49, § 3; 2 R.S. (8th ed.) 1113. § 516. Rules governing Assessors in receiving evidence.. Upon the hearing of an appeal by a town from the equalization by the Board of Supervisors, the State assessors admitted in evidence records of deeds of con- veyance of lands in the several towns of the county against the objection of the Supervisor of another town in the same county, who contested the appeal, and sub- sequently the considerations expressed in such deeds were claimed by the party appealing to furnish some evidence as to the value of the several parcels of real estate described in such deeds, and it was held on certiorart 412 THe Law OF SUPERVISORS. that the decision of the State Assessors in admitting the evidence was not a violation of ‘‘any rule of law affecting the rights of the relator” as those words are used in § 2140, subdiv. 3, Code of Civil Procedure, for the reasons : First, That, in the disposition of appeals like the one in question, the State Assessors are governed and con- trolled by statutory provisions, and the rules and regula- tions made by them under the statute, and Second, That, while they have not full power to render a decision of their own mere volition and with- out evidence, yet they are, to some extent, vested with a discretionary power to take action, without restricting their proceediigs to strict technical rules. People v. State Assessors, 47 Hun, 450. On certiorari the courts will not review the rulings of the State Assessors in the reception or rejection of evidence. Pcople v. State Assessors, 22 Weekly Digest, 458. § 517. Duties of the State Assessors on such hearing. It is the duty of the State Assessors upon appeal by a town, to determine: ist, whether the town appealing has suffered injustice, as compared with other towns in the county ; 2d, whether such town shall have a deduc- tion from its valuation, and the amount thereof; 3d, upon what other town or towns such deduction shall be placed, and the portion thereof which shall be placcd on each. People v. Hadley, 76 N. Y. 337. The comparison is not between the town appealing and the residue of the county as an entirety, but between it and the other towns as distinct and separate organiza- tions Ibid. For the purpose of performing this duty, it is essential that said Assessors shall take into consideration the val- uation of all the towns of the county separately, and if they find injustice has been done to the appealing town by an excessive valuation, as compared with some of the towns, they may remedy it by placing the excess upon those towns; and this, although the other towns EQUALIZATION OF ASSESSMENTS. 413 have not appealed, have suffered a like injustice. For the purpose of correcting this injustice these towns can not be regarded. People v. Hadley, 76 N. Y. 337. The State Assessors are not required upon such an appeal to take testimony as to the amount and value of personal property in the towns, as a Board of Super- visors in making equalizations are confined to the valua- tions of real estate, and the State Assessors have no authority beyond this. Ibid. It is no objection to a decision made by said Assessors in pursuance of the statute that it does not purport to be certified to the Board of Supervisors of the county, nor is it an available objection where the decision was forwarded by mail in due season, that it was not filed with the Clerk of the Board of Supervisors, before the beginning of the next annual meeting. Ibid. Since the act of 1876 (chap. 49, § 3), where a decision of the State Assessors was certified and forwarded by mail to the Board of Supervisors, within ten days after it was made and signed by the State Assessors, but not until after the commencement of the next annualsession, and the Board omitted to carry the decision into effect, held, that a mandamus would lie to compel the execu- tion of such decision. People v. Supervisors of Ontario Co., 85 N. Y. 324. In such a case the Supervisors of several towns may join in an application for a mandamus. Ibid. $518. State Assessors act judicially. The action of the State Board of equalization in the discharge of the duty imposed upon it of equalizing the state tax among the several counties of this state, is ju- dicial in its character, and when it has acquired juris- diction any error in its judgment or mistake in its con- clusions can be asserted only in some direct proceeding for review. Mayor, etc., of New York v. Davenport, 92 N. Y. 604. $519. Their acts not affected by. The fact that said Board did not have before it at its meeting a written digest of facts to be prepared by the 414 Tue LAW OF SUPERVISORS. State Assessors is not a jurisdictional defect, and is im- niaterial. Mayor, etc., of NewYork v. Davenport, 92 N. Y. 604. The fact that the Board increased the valuation of a county without swearing and examining witnesses is im- material ; that is, the duty of the State Assessors, and upon the information given by them to the Board, it is authorized to act. Ibid. Nor does the fact, that the Board after a short secret session adopted a schedule of equalization, prepared by one of the Assessors, affect the validity of its decision. Ibid. The fact that the State Board of Equalization, after giv- ing a county full opportunity to present proof, imforma- tion and argument, went into secret session when delib- erting upon the equalization of assessments, excluding the representatives of the county from participation therein and declined their assistance and advice in mak- ing such equalization, does not justify a charge of miscon- duct against the Board. People v. McCarthy,102N.Y. 631. Nor is it just ground for such a charge against the State Assessors, that, in seeking information as to the value of real estate in the county, they did not accept offers of assistance and advice tendered by the county tax and as- sessment officers. Ibid. $520. Costs and expenses on appeals how collected. Whenever any appeal so made shall not be sustained, the State Assessors shall certify the reasonable costs and expenses arising therefrom and connected therewith on the part of the respondent and appellant, and such costs and expenses so certified shall be a charge upon the town, city or ward whose appeal is not sustained, which shall be audited by the Board of Supervisors, and levied up- on the taxable property of said town, city or ward, and whenever any appeal so made shall be sustained, the State Assessors shall certify the reasonable costs and ex- penses arising therefrom and connected therewith, on the part of the appellant and respondent, and such amounts so certified shall be audited by the Board of EQUALIZATION OF ASSESSMENTS, 415 Supervisors, and levied and collected from all the towns and cities of the county in the assessment and collection of taxes for the current years, excepting those towns and cities in which such appeal was sustained ; and whenever more than one town or city in a county shall have appealed, some of which are sustained and some dis- missed, it shall be the duty of the State Assessors to de- cide what portion of the costs and expenses shall be , borne by the town or towns, city or cities in which such appeal was dismissed. Laws 1859, chap. 312, § 15, as amended by Laws 1884, chap. 435, § 1. When such an appeal is dismissed, the costs and ex- penses incurred by the Board may be charged against the town, city or ward appealing. People v. City of Kingston, 101 N. Y. 82. Under the foregoing laws the employment of necessary appraisers and searchers by the Board at a reasonable per diem compensation, and the necessary disbursements in preparing for the investigation, are legal items of expenses chargeable under the statute, and the decision of the Board as to the amount and reasonableness of the expenses incurred in the absence of fraud or collusion, is final and conclusive. Ibid. This case was decided under the section as amended in 1878, when the Board of Supervisors was vested with the power to audit the costs and expenses. The law has since been changed, vesting that power in the State As- sessors. ‘Under the present law the Board of Super- visors have no other power than to make provision for the collection of the costs and expenses as audited by the State Assessors. The amount of the costs and expenses seem to be limited by the tenth rule established by the State As- sessors, so they cannot exceed $2,000 in any one case. 416 ‘THe Law OF SUPERVISORS. CHAPTER XV. REVIEW OF ASSESSMENTS ON CERTIORARI. § 521. Writ of certiorari to review assessments, § 522. By whom allowed. § 523. When returnable. § 524. Powers of court on hearing. § 525. Force and effect of new assessment. § 526. Costs. § 527. Appeals. § 528. Adjustment when assessment held illegal, etc. § 529. Assessment rolls to be delivered to Clerk. Notice. § 530. Act, how construed. § 521. Writ of certiorari to review assessments. A writ of certiorari may be allowed by the Supreme Court, on the petition, duly verified, of any person or corporation assessed and claiming to be aggrieved, to review an assessment of real or personal property for the purpose of taxation made in any town, ward, village or city of this state, when the petition shall set forth that the assessment is illegal, specifying the grounds of the alleged illegality; or is erroneous, by reason of over valuation ; or is unequal, in that the assessment has been made at a higher proportionate valuation than other real or personal property on the same roll, by the same officers ; and that the petitioner is or will be injured by such alleged illegal, erroneous or unequal assessment. Who may unite in petition. When the alleged illegality, error or inequality affects several persons in the same manner, who are assessed upon the same roll, they may unite in the same petition, and in that case, the writ may be allowed, and the proceedings authorized by this act hadin behalf of all such petitioners. Laws 1880, chap. 269, §1; 2R. S. (8th ed.) 1114. It is sufficient if the petition be properly verified as to REVIEW OF ASSESSMENTS ON CERTIORARI 417 one of the relators. People v. Cheetham, 45 Hun, 6. An affidavit made by the Superintendent of a railroad corporation, stating that the company has ‘‘ no director or general officer residing in the county,” is sufficient. Ibid. Who may petition. A petition is not defective because it alleges that the petitioner claims to be aggrieved, in- stead of alleging that he is aggrieved, if the petition sets forth the grounds of illegality. People v. Cheetham, 20 Abb. N. C. 45. Intent of this act. This act was intended to give relief against certain wrongs which had been long and well- known toexist, but which had been theretofore practically remediless, People v. Smith, 24 Hun, 66, and proceed - ings to remedy an illegal assessment are now uniformly taken under this statute. Code of Civil Procedure not applicable. This act reg- ulates the subject of the review of assessments by certio- rarz and renders inapplicable to such cases the provisions of the Code of Civil Procedure (§ 2120) in reference to the writ of certiorart. People v. Assessors of Taxes of Greenburgh, 106 N. Y. 671; People v. Low, 40 Hun, 176. A national bank cannot be petitioner, under this act, to review the legality of an assessment for a tax to be imposed upon the shares of the stockholders of the bank. People v. Coleman, 41 Hun, 344; People v. Wall Street Bank, 39 Hun, 525. Does not apply to assessments for local improvements. This act does not apply to assessments for local improve- ments, but relates to town, ward, village or city assess- ments imposed upon the whole body of tax payers, for some general purpose of taxation. People v. Common Council of Dunkirk, 38 Hun, 7. Review of assessments in Albany. The right to review assessments by the Assessors of the City of Albany, un- der this act, is not affected by the special act relating to the assessment and collection of taxes in that city, L. 1881, ch. 284, amending Laws 1850, chap. 86, by which 27 418 Tur LAW OF SUPERVISORS. it is made the duty of the Board to examine the appli- cant under oath and receive such other supplementary evidence given under oath, as he may present ; thus sub- stituting judgment of the Board of Assessors, after hear- ing evidence in the matter of reducing the value of as- sessed property for the amount fixed in the affidavit of the applicant. People v. Weaver, 34 Hun, 32, attirming S. C. 67 How. Pr. 477, from which appeal was dismissed. 99 N. Y. 659. Failure to apply to Assessors for reduction, etc. A party who omits to avail himself of the opportunity pro- vided by the statute to remedy an excessive or unequal assessment by application to the Assessors, cannot, after the assessment has been confirmed by lapse of time, arrest the collection of the tax by a proceeding under this act. People v. Commissioners of Taxes, 99 N. Y. 254. — — Bars remedy under this act. Where personal prop- erty was regularly assessed and placed upon the assess- ment roll and the notice given of the completion of the roll as required by law, and the person assessed omitted to appear and object to the assessment during the time limited therefor, he was held to be barred from asserting a remedy by certiorari? under this act. People v. Oster- houdt, 24 Weekly Digest, 101. Whether or not it is a pre-requisite to a proceeding under this act that the relator should make application to the Assessors for the reduction, and present proof in support of his application, the objection that he did not do so, will not be considered by the general term, if it does not appear by the record to have been raised at the special term. People v. Hicks, 40 Hun, 598. Form of petition. This act does not require all the persons in whose behalf the petition was presented to subscribe and verify it. It permits all persons who may be affected in the same manner by the assessment upon the same roll, to unite in the same petition, and to obtain the writ of certiorari for their joint as well as several REVIEW OF ASSESSMENTS ON CERTIORARI. 419 benefit, and that may be done by the presentation of one petition, the truth of which may be verified by either of the petitioners. Nor does the act require, in terms, or by reasonable implication, that the petition shall be signed by each of the petitioners acting individually for himself or herself, but its provisions will be satisfied when they are represented by attorneys acting in their behalf. Hence, in proceedings to review the legality of an assess- ment upon shares of stockholders in a national bank, about eighty in number, a petition subscribed by one of the stockholders for himself and all the other petitioners and verified by him alone, and also subscribed by the attorneys for the petitioners, was held a sufficient com- pliance with the statute. People v. Coleman, 41 Hun, 307. When attorneys subscribe such a petition, it is not to be assumed that they have done so without the authority of the petitioners, but rather that they have obtained such authority before subscribing it in such a manner as imports authority so to do. It devolves upon the person alleging a lack of authority to establish that fact by proof, before the proceeding can be held irregular or the petition dismissed. Jbzd. Parties defendant. The Supervisor of the town is not a necessary party to the proceeding. People v. Smith, 24 Hun, 66. § 522. Writ by whom allowed. Such writ shall only be allowed by a Justice of the Supreme Court in the judicial district, or at a special term of the court in the judicial district in which the assessment complained of was made, and shall be made returnable at a special term in said district. When application therefor must be made. The writ shall not be granted unless application therefor shall be made within fifteen days after the completion and delivery of the assessment roll, and notice thereof given as provided in this act. Writ not to stay proceedings. A writ of certiorart 420 THe Law OF SUPERVISORS. allowed under this act shall not stay the proceedings of the Assessors or other officers to whom it is directed, or to whom the assessment roll may be delivered to be acted upon according to law. Laws 1880, chap. 269. 5.2. Writ ineffectual if roll has passed from Assessors control. A writ of certiorari to Assessors to compel cor- rection of the assessment roll is ineffectual in case the roll has passed from their possession and control to the Board of Supervisors before the writ was issued, even although it was directed to the Board of Supervisors as well. People v. Thompkins, 40 Hun, 228. When the Assessors in their return to the writ, state that they had perfected the assessment roll and delivered it duly certified to the Supervisor of the town, and that the same was notin their possession or control at the time the writ was served on them, the court will disrniss the writas to them. People v. Fredericks, 48 Barb. 173; S. C. 33 How. Pr. 150, affirmed 48 N. Y. 70. When the inquiry is, as to whether the action and de- termination were legal and should be set aside or con- firmed, the writ may be effectual after the powers of the tribunal or officers have ceased as to the matter in ques- tion, because it is mere matter of review; but when the purpose of the proceedings is to have the direction of the court for those to whom the writ is issued, to do some act by way of correction of an error, it must be within the power of such officer or tribunal to perform the act. People v. Thompkins, 40 Hun, 228. Notice of application for writ. No notice of the grant- ing of a writ of certiorari to renew an assessment of real or personal property, under this act, need be given if the court in its discretion sees fit to dispense with it. People v. Smith, 24 Hun, 66. Form of writ: should be under seal. The writ of cer- tiorart issued under this act is a state writ, and must be issued under the seal of the court before which it is re- turnable ; but it is not void by reason of the omission REVIEW OF ASSESSMENTS ON CERTIORARI. 421 of a seal, and the omission may be cured by amendment. People v. Assessors of Town of Herkimer, 6 Civ. Pro. R. 297. Writ should be addressed to the Assessors individu- ally. A writ issued under this act is defective where it is directed to ‘‘the Assessors of the Town of H,” instead of to the individuals who are the Assessors of that town, naming them and adding the name of their of- fice ; and such a suit will be quashed on motion. Ibid. Must be returnable at Special Term. The writ must be made returnable at a Special Term in the judicial district in which the assessment complained of was made; and if made returnable at a General Term, the proceeding will be dismissed on motion. People v. Assessors of Green- burg, 6 N. Y. State Rep. 744: § 523. When returnable. The court or justice granting the writ shall prescribe in the writ the'time within which a return thereto must be made, which shall not be less than ten days; and may extend such time. Original roll need not be returned. The Assessors or other officers making a return to such writ shall not be required to return the original assessment roll or other original papers acted on by them, but it shall be suffi- cient to return certified or sworn copies of the roll or other papers, or of such portions thereof as may be called for by such writ. Return to state facts. And the return may concisely set forth such other facts as may be pertinent and mate- rial to show the value of the property assessed on the roll, and the grounds for the valuation made by the as- sessing officers ; and the return must be verified. Laws 1880, chap. 269, ¢ 3. May require return as to real and personal property, The writ, though issued upon the application of one assessed for real estate only, may properly require a 499 THE LAW OF SUPERVISORS. return as to assessments of both real and personal prop- erty. People v. Smith, 24 Hun, 66. Service of writ. The writ must require a return to be made thereto at a Special Term to be held within not less than ten days from the time of its allowance ; but it is not necessary that the writ should be served ten days before the return day. Insufficient return. Where the petition under which the writ of certiorari was issued averred that the full and true value of the relator’s estate as it would be as- sessed for the payment of a just debt from an insolvent debtor, did not exceed $40,000, and the answer cf the return to the assessment was merely a denial that the Assessors, ‘‘ have assessed the real property of the relator at an over-valuation of $40,000, or that they have assessed said real property at more than its true and real value,” without any where alleging that the assessment of the real property of the relator had been made at its full and true value, asthe Assessors would assess the same for the payment of a just debt from an insolvent debtor, it was held that denial of such averment in the petition was insufficient. People v. Pond, 13 Abb. N. C. 1. Return may be contradicted. The doctrine that upon an ordinary common law certiorari the return cannot be contradicted, is inapplicable to a return under this act, and the court is authorized by that act to appoint a referee to take and report evidence to be produced by the parties. People v. Smith, 24 Hun, 66; People v. Cheetham, 20 Abb. N. C. 44; 8. C. 45 Hun, 6. § 524. Powers of court on hearing. If it should appear by the return to such writ that the assessment complained of is illegal, erroneous or unequal for any of the reasons alleged in the petition, the court shall have power to order such assessment, if illegal, to be stricken from the roll: or if erroneous or unequal, to order a re-assessment of the property of the petitioner, or the correction of such assessment, in whole or in part, REVIEW OF ASSESSMENTS ON CERTIORARI 423 in such manner as shall be in accordance with law, or as shall make it conform to the valuations and assessments applied to other real or personal property in the same roll, and secure equality of assessment. Court may appoint referee to take evidence. If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, the court may take evidence, or appoint a referee to take such evidence as the court may direct, and report the same to the court, and such testimony shall constitute a part of the proceedings upon which the determination of the court shall be made. Laws 1880, chap. 269, § 4. Objection to joinder of relators. An objection on the ground of improper joinder of, relators cannot be made on a motion to quash the writ, but should be raised by a motion to strike out the party improperly joined. People v. Cheetham, 45 Hun, 6; 8S. C. 20 Abb. N. C. 44. Motion to quash. A motion to quash a writ of cer- tworart issued under this statute, upon the ground that neither the petition nor the writ shows that the relators appeared before the Assessors or made any objection dur- ing the period in which the assessments were open for inspection and correction, should not be granted. Peo- ple v. Grace, 45 Hun, 243. Object of the statute. The object of the statute is to review the proceedings of the Assessors. The statute does not contemplate a mere affirmance or reversal of the whole assessment as under a common law certiorari, but it provides for a correction, for a re-assessment and the like, as if the appellate court were, to some extent, to exercise its own judgment upon the matter. No stay is to be granted, nor are the original papers to be returned. It is, therefore, of little consequence what officer has the actual custody of the assessment roll. That will remain with him. If the correction by the court is made in time for the use of the Board of Supervisors at its annual session, it can be acted upon (§ 5). If not made in 494 THE LAW OF SUPERVISORS. time, the money due the petitioners can be redressed with the next meeting (§8). People v. Smith, 24 Hun, 66. In so far as this case holds that it is of little con- sequence what officer has the actual custody of the assessment roll, it is in conflict with earlier as well as later authority. People v. Fredericks, 48 Barb. 173; S. C. 33 How. Pr. 150, affirmed 48 N. Y. 70, and People v. Tompkins, 40 Hun, 228. Cases where relief may be granted. The statute un- doubtedly greatly enlarged the power previously exercised by the court in reviewing and correcting illegal assess- ments by certiorar?, but even under this statute the power of the court is confined to those cases where it appears by the returns to, the writ, or the evidence taken thereunder, that the assessment complained of is illegal, erroneous or unequal for any of the reasons alleged in the petition. People v. Commissioners of Taxes, 91 N. Y. 593, 603. When refused. It does not authorize a review where it appears that the assessment in question was made in accordance with the statutes then in force, and in the due performance of the duty then obligatory upon the Assessors. Where, therefore, it appeared by the return to a writ of certiorart to review an assessment upon the personal property of the relator, which was alleged to be illegal, because of the exemption contained in Laws 1880, chap. 542, that the assessment was made before May 1, 1880, in accordance with the then existing law, the writ should be dismissed, as the assessment was properly made. Ibid. Decision of lower court, when conclusive. In proceed- ings under the statute to reduce an assessment because of over-valuation, the conclusion of the court below that there was an over-valuation, if there is evidence to sup- port it, is not reviewable here. People v. Carter, 109 N. Y. 576. Over-valuation, how determined. Where the valuation. REVIEW oF ASSESSMENTS ON CERTIORARI. 495, is unequal because made at a higher proportionate valua- tion than other property on the same assessment roll, to entitle a property owner to a reduction from his assessment, where an over-valuation is not established, it is not sufficient to show simply that some other property of the same description is valued on the same roll at a less proportionate value; it must also appear that, by reason of the under-valuation of the particular property with which his own is compared, the claimant will be in- jured, i. e., compelled to pay more than his due share of the aggregate tax. Ibid. It is not material in this respect whether the assess- ment compared is of contiguous property, or of similar property situated any where in the assessment district. Ibid. Proceedings not controlled by Code. The proceedings under this statute are entirely different from those under the Code of Civil Procedure, which has no application to proceedings to renew assessments under this statute. People v. Smith, 24 Hun, 66; People v. Low, 40 Hun, 176; People v. Assessors of Greenburgh, 106 N. Y. 671, Presumption in support of assessment. Where the assessment roll and affidavit are not returned, the court may presume that the affidavit conformed to the statute in respect to the statement of the rule of valuation. People v. Pond, 13 Abb. N. C. 1. Evidence may be received. In such proceedings it is proper to receive in evidence conveyances of other property as establishing presumptively the prices for which it had been sold, and also estimates as to its value, made as a basis for procuring loans, or placing insurance upon it. Poeple v. Keator, 67 How. Pr. 277, affirmed 36 Hun, 592. When court will not interfere. It is essential to the support of a claim to reduce or nullify an assessment made by the proper officers, that it should be made to 496 THE Law OF SUPERVISORS. appear affirmatively by sufficient proof, that the assess- ment is in part, or in whole, erroneous. If the evi- dence leaves the matter in doubt it is the province of the Assessors to determine the value and amount of property liable to taxation. It was so held, where an application was made by executors to strike out an assess- ment of personal property held by them, because of debts due in their representative capacities, and it was conceded that they had in their handsthe amount to which the assess- ment was reduced, which was retained by them on settle- ment of their accounts, by order of the Surrogate, ‘‘ for the payment of disputed and other claims and the further expenses of administration,” and their affidavit showed that there were unpaid claims against the estate exceed- ing the amount of assets in their hands, which claims, however, were contested by the executors, and it did not appear that their validity had been established, and the application to reduce the assessment was denied by the Assessors. People v. Commissioners of Taxes, 34 Hun, 506, affirmed 99 N. Y. 154. What must be shown to warrant interference. It is es- sential that a party assailing the validity of an assess- ment should make it conclusively appear that the method by which the Assessors arrived at the result complained of was incorrect, and that the assessment does not repre- sent the fair value of the property assessed. People v. Davenport, 91 N. Y. 574, 581. Powers of Assessors—when they will be reviewed. By the statutes of this state, Assessors are made the judges of the value of property for the purposes of taxation. They are not bound by proof produced to them, but are required to exercise their own judgment notwithstanding such proof, and the case must be an extraordinary one which will authorize the Supreme Court to review their judgment upon certiorari. If, however, the Assessors place upon the assessment roll property not liable to taxation, and they refuse, upon application of the person aggrieved, to strike it off, their REVIEW OF ASSESSMENTS ON CERTIORARI. 427 action can be reviewed upon certiorari. People v. Trus- tees of Ogdensburgh, 48 N. Y. 390. Rule established for assessing rutlroad property. Ina case where a reduction was made by the court, of the as- sessment imposed upon the main track of the relator, a railroad company, upon the ground that certain sums should have been deducted from the earnings of the rela- tor in determining its net earnings, and the court adopted the following method, basing it upon the aver- age of the earnings for the preceding five years, which consists in deducting from the gross savings : 1. The net earnings of its freight cars on other roads ; 2. The value of the use of its freight cars on its own road at the same rate ; : 3. The amount received from rentals of its real prop- erty and used in its business ; 4. Interest at the rate of five per cent. upon the value of its side tracks ; 5. Interest at the rate of five per cent. upon the value of its coaches and cars other than freight cars ; 6. Interest at the rate or five per cent. on the value of its locomotives ; 7. Interest at the rate of five per cent. upon the value of its depots, docks, sheds and lands outside of the main track, not rented but used in its business. The residue was capitalized at five per cent., and that sum divided by the number of miles length of such track was fixed upon as its value per mile. And it was held, in the absence of any evidence tend- ing to show that the results of the five years’ business did not fairly indicate its present financial condition, or of mismanagement tending to show that the earnings failed to represent reasonably the productive character of the road, or that there existed undeveloped facilities upon which to found, or which necessarily required an -esti- mate of present value in addition to that produced by the net earnings, the General Term could not say that the method of estimate adopted by the Special Term was erro- 428 THE LAW OF SUPERVISORS. neous. People v. Hicks, 40 Hun, 598, affirmed on other grounds, 105 N. Y. 198. Farming lands in cities. Where lands are used and occupied as farming lands they should be so assessed, al- though included within city limits, and where assessed as city lots, the court ordered the assessment corrected. People v. Weaver, 41 Hun, 133. § 525. Force and effect of new assessment. A new assessment, or correction of an assessment made by order of the court, shall have the same force and effect as if it had been so made by the proper assessing officers within the time originally prescribed by law for making such assessment. Disobedience to a writ or order, in any proceeding under this act, may be punished by the court as foracontempt. Laws 1880, chap. 269, § 5. § 526. Costs. Costs shall not be allowed against Assessors or other officers whose proceedings may be reviewed under this act, unless it shall appear to the court that they acted with gross negligence, in bad faith, or with malice. If the writ shall be quashed, or the prayer of the petitioner denied, costs shall be awarded against the petitioner, but the costs shall not in an case exceed the costs and dis- bursements taxable in an action upon the trial of an issue of fact, in the Supreme Court. Jb7d., § 6. Court cannot exempt petitioner from costs. The Special Term has no discretion to withhold costs from defendants on denying the prayer of the petition, even where the petition is denied by reason of the subsequent amendment of the proceedings, correcting the irregularity alleged. People v. Jones, 43 Hun, 131. Upon a final order in favor of the defendant in the certiorar’ proceeding, the defendant is entitled to costs as in an ordinary action. The provisions of the Code of Civil Procedure (§ 2143) do not apply. People v. Coleman, 18 Abb. N. C. 246. No costs against Assessors. Where the Assessors refuse to allow the relator a reduction of his assessment, REVIEW OF ASSESSMENTS ON CERTIORARI. 429 claimed on the ground that he was a minister of the gospel, the fact being shown by his affidavit, and upon reference at the Special Term, the referee found the facts in favor of the relator but that the Assessors acted in good faith and not with gross negligence or malice, it was held that the Assessors should not be charged with the costs of the proceeding. People v. Peterson, 31 Hun, 421, reversing 8S. C. in 16 Weekly Digest, 70. So, where the court made a reduction in the valuation, but found that the Assessors acted in good faith, the Assessors were not charged with costs. People v. Keator, 67 How. Pr. 277. Where Assessors are chargeable with costs. Whereafter repeated decisions holding certain property exempt from taxation, if the Assessors again include it in assessment roll they may be charged with costs notwithstanding an appeal is pending from former decision. People v. Fonda, 22 Weekly Digest, 477. Costs on appeal are given or withheld in the dis- cretion of the court. People v. Commissioners of Taxes, 101 N. Y. 651. The exemption of the officers proceeded against under this section, from costs, does not apply in the case of an unsuccessful appeal by them from the judgment of the Special Term in favor of the relator. People v. Keator, 17 Abb. N. CO. 369, affirming 8S. C. 67 How. Pr. 277. § 527. Appeals. Appeal may be taken by either party from an order, judgment or determination under this act, as from an order, and shall be heard and determined in like manner. All issues and appeals in any proceedings instituted under this act shall have preference over all other civil actions and proceedings in all courts. Laws 1880, chap 269, § 7. Objections not raised at Special Term cannot be con- sidered upon appeal. People v. Hicks, 40 Hun, 599. Code of Civil Procedure, § 2140, 7s not applicable +o appeals under this statute. People v. Keator, 17 Abb. N. ©. 369; S. C., 67 How. Pr. 277. 430 THE LAW OF SUPERVISORS. Even if that section did apply the court should not re- verse the judgment because of an error in the finding of fact by the Special Term, unless it was clearly against the preponderance of proof. Ibid. A similar ruling was made upon certiorari to review the decision of the State Assessors upon appeal by the Supervisors of a city from the equalization of assessments of the county by its Board of Supervisors, the material fact being the value of the real estate in the several towns and in the city. People v. Williams, 17 Abb. N. C. 366. Judgment should not be reversed on account of the admission of irrelevent and immaterial evidence, unless the appellate court is satisfied that the decision of the trial judge was improperly influenced by it. People v. Keator, 17 Abb. N. C. 369, affirming 67 How. Pr. 277. Errors of the referee in the admission of evidence taken by him for the use of the court, on the hearing of the case, are not available upon appeal from the judgment of the Special Term, unless the trial Judge is called upon to make rulings as to the admissibility of the evidence, by objec- tion to it, or by motion to strikeit out; and the record should show that it was done. Ibid. Appeals to Court of Appeals. For the purposes of an appeal, a judgment in proceedings under this statute is to be considered as an order, and an appeal to the Court of Appeals must be taken within the time prescribed for appeals from orders, i. e., sixty days. People v. Keator ; 101 N. Y. 610. Orders not appealable. An order of reference ina proceeding under this act, or an order refusing to set aside such order of reference, is not reviewable in the Court of Appeals. Neither order is final, nor does it affect a substantial right, within the meaning of Code of Civil Procedure, § 190. People v. Smith, 85 N. Y.. 628, Only errors of law considered. On appeals to the Court of Appeals from judgments rendered in proceed- REVIEW OF ASSESSMENTS ON CERTIORARI. 431 ings under this statute, only questions of law may be reviewed : the determination of the court below upon the question of value is final and conclusive where the question was fairly in dispute, unless it appears that elements, proper to be considered, were excluded, or improper ones considered, or that some legal error vitiated the conclusion. People v. Hicks, 105 N. Y. 198, affirming 40 Hun, 598; People v. Haupt, 104 N. Y. 877 ; People v. Coleman, 107 N. Y. 541-5. § 528. Adjustment, when assessment held illegal, etc. If final judgment shall not be given in time to enable the Assessors or other officers to make a new or corrected assessment for the use of the Board of Supervisors at their annual session, and it shall appear from said judg- ment that said assessment was illegal, erroneous or un- equal, then there shall be audited and allowed to the petitioner, and included in the next year’s tax levy of said town, village or city, and paid to the petitioner, the amount with interest thereon, from the date of payment, in excess of what the tax should have been as determined by such judgment or order of the court. Tax therefore, how levied and collected. But in case the amount deducted from such assessment by the judg- ment or order exceeds the sum of ten thousand dollars, the tax so to be refunded by reason of such corrected assessment, other than the proportion or percentage, thereof collected for such town, village or city purposes shall be levied upon the county at large and audited by the Board of Supervisors and paid to the petitioner. And in such case the Board of Supervisors of the county shall also audit and levy upon such town, village or city, the proportion or percentage of such excess of tax collected for such town, village or city purposes, and the same shall be collected and paid to the petitioner without other or further audit. Laws 1880, chap. 269, § 8, as amended by Laws 1887, chap. 342. § 529. Assessment roll to be delivered to Clerk, ete. All assessment rolls, when finally completed and verified 432 THe Law oF SUPERVISORS. by the Assessors, shall, in towns, on or before the first day of September, and in incorporated village and cities at the time prescribed by their respective charters or laws applicable to them, bedelivered to the Town, Village or City Clerk, or other officer, to whom such rolls are or may be required by law to be delivered, and there to remain with such Clerk or other officer for a period of fifteen days, for public inspection. Notice to be given. The Assessors or other officers who complete and verify the assessment roll, shall, after they have delivered the same to the said Town, Village or City Clerk or other officer, forthwith give public notice by posting the same in at least three of the most public places in said town, village or city, or by publishing the same in one or more newspapers published therein, that such assessment roll has been finally completed, the officer to whom the same has been delivered and the place where the same will be open to public inspection. Computation of time. The fifteen days from which to complete the time within which the application for the writ of certiorari can be made under this act shall be the time when said public notice is first given. Laws 1880, chap. 269, § 9. Time of application for writ. The omission of the Assessors to give notice, as required by the statute (§ 9) of the completion of their roll and its delivery to the proper officer, prevents the running of the fifteen days, during which application may be made for the writ of certiorari, and leave the writ to be sued out at any time. People v. Hicks, 105 N. Y. 198, affirming S. C. in 40 Hun, 598; see also People v. Haupt, 104 N. Y. 377. These provisions of section 9 are directory merely as to time, and if the roll is completed and verified, delay in filing it does not vitiate the assessment. Jbid.; Peo- ple v. Jones, 43 Hun, 131. What notice should contain. All that the notice of the delivery of the assessment roll by the Assessors is re- quired to state, is, that the roll has been finally completed, REVIEW OF ASSESSMENTS ON CERTIORARI. 433 the officers to whom it has been delivered, and the place where it will be open for public inspection. An irregu- larity in stating that the roll will remain with the Super- visors for the period of fifteen days from the first of September, does not invalidate the notice, as the state- ment upon that part may be regarded as surplusage. Ibid. $530. Act how construed. This act shall not be construed to repeal or abridge any other right or remedy given to review an assessment by any law applicable to any city or incorporated village, or by the charters thereof. Laws 1880, chap. 269, § 10. 28 434 THE LAW OF SUPERVISORS. CHAPTER XVI. OF ASSESSMENT ROLLS AND LEVYING AND COLLECTION OF TAXES, § 581. $532, § 538. § 534, § 549. § 550. 8 551. $ 552. $553. $ 554. § 555. $ 556, $557. a gqgagogcucocn Oa ae oc Wwe me S&S O UR Whe Oe 1 aD nq Supervisor’s duty in relation to assessment rolls. Comptroller’s instructions in relation thereto. Jurisdiction of Board of Supervisors over assessment rolls, Cases in which the Board may review assessments. 1. Failure of Assessors to meet on ‘‘ review day. 2: Rents reserved in leases in fee. 3. As to non-resident lands. DUTIES OF SUPERVISORS IN RELATION TO OMITTED LANDS, . Omitted lands of preceding year. . Omitted lands in current year. Form. . Amount to be deducted from other tax es. . Correction of clerical errors in assessment rolls. . Powers of Board under last section. . Correction of manifest clerical and other errors. . Errors that may or may not be corrected. . Powers of Supervisors in relation to errors. . Manifest clerical errors in Kings County. . Manifest clerical errors in Albany County. . Errors, by whom corrected—committee on assessments, . Committee on erroneous taxation. . Extending the tax. . Amount of tax to be placed in fifth column. Extension must be under supervision of Board. Establishing and proving ratio. Extension of tax to be confirmed. Collector’s fees must not be included in tax list. State tax, county's proportion, how determined. i Amount as fixed by Comptroller, to be assessed. Taxes, how paid on hon-resident lands—over-charges, Over-charges to be re-charged to county. Town to be liable therefor. . Supervisors to refund taxes illegally, etc., assessed. . Refunding taxes on Jands divided by county lines. . Assessment to refund such taxes. . No claim on state in such cases. 2. Form of assessment roll—tax extended. . Completed roll to be delivered to Collector. . Warrant to be annexed to roll—its contents. § 565. § 566. § 567. § 568. § 569. § 570. 8571. § 572, § 573. § 574, $575. $576. § 577. § 578. § 579, § 580, § 581. § 582. § 583. § 584, $585. $586. $587. ¥ 588. § 589. $ 590. $591. $ 592. § 598. $ 594, § 596. § 596, § 597. $ 598. § 599, § 600. $ 601. § 602. ¥ 608, $ 604, § 531. LEVYING AND COLLECTION OF TAXES, 485 Directions in warrant as to payment of taxes. Taxes, to whom paid in cities, Account to be transmitted to County Treasurer. Form of Collector’s warrant. When Collector does not qualify—Sheriff to act. Collector to be appointed, when. Warrant to be delivered to appointee. Extension of time for collection of taxes—power of Supervisors in relation thereto. ; Extension by County Treasurer. Proceedings where Collector neglects to pay over. Duty of Sheriff on warrant against Collector Sheriff’s return and notice to Supervisor. Supervisor shall sue Collector's bond. School taxes—proceedings when not collected. Assessment for uncommuted highway labor and non-resident tax. Form of such return. Supervisor to lay such lists before the Board. Such arrearages how collected. Losses by defaults of Treasurers and Collectors. County Treasurer’s neglect to pay state tax — proceedings, thereon. Comptroller to furnish Supervisors with statement of arrearages. Comptroller’s statement of rejected taxes. Comptroller to cancel taxes on imperfectly described lands. Transcript of such taxes to be delivered to Supervisors. Description of lands to be made. If not made, tax to be assessed upon town. How assessed in case of division of town. Comptroller to cancel taxes previously paid. Account to be transmitted to Supervisors. Comptroller may require correct returns. Duty of Supervisors thereon. Maps to be furnished Comptroller by Supervisors. When sales invalid, money to be returned. Error to be charged to the county. After conveyance, sale may be cancelled, etc. When Comptroller to bid in lands at tax sale. Lands to be deeded to Board of Supervisors unless redeemed. Purchase of scrapers, etc., to be paid for by tax. Purchase of stone crusher to be paid for by tax. To raise money for stone to operate stone crusher. Supervisor’s duties in relation to assessment roll. It is the duty of a Supervisor to whom an assessment roll is delivered by the Assessor to examine it carefully and to see if it complies with the requirements of the law. 436 Tue Law oF SUPERVISORS. If he discovers mere formal defects he has a right to call upon the Assessors to correct them. If their oath to the roll is not in the form prescribed by the statute, to require them to take a new and proper oath. If the columns are not footed he should require the Assessors to foot them up ; or he may do it himself, as such mere footing is not an alteration of the roll. It is merely putting it in shape for use before the Board of Supervisors. In some coun- ties they have ‘‘ committees on form of assessment rolls” and ‘‘committees on footing assessment rolls.” The du- ties to be performed by such committees should be per- formed by the Supervisor before the roll is presented to the Board. It must be borne in mind that the Supervisor has no right to make any alteration or correction in the assess- ment roll in a matter of substance. What he may do and in relation to what part of the roll, has been distinctly pointed out by the Comptroller in instructions to Super- visors. Such instructions are here given in the exact language of the Comptroller and should be carefully studied by every Supervisor. § 532. Comptroller’s instructions to Supervisors. STATE oF NEw YORK, Comptroller's office, Albany, 1887, To the Supervisor of the Town of County of NY: Sir: Herewith you will receive from the Treasurer of your county, the statement of unpaid taxes of the year 1886, on lands of non-residents in your town, which have been rejected by me in accordance with the requirements of law. The examination has been full and complete, and, on the statement of rejections, I have endeavored to fully and clearly point out the causes of rejection, and to state the requirements necessary to secure the admission of such of said taxes as can possibly be admitted. Your attention is called to the requirements of law, which are : ; That you are to add to the assessment roll of your town COMPTROLLER’S INSTRUCTIONS TO SUPERVISORS. 437 for the year 1887, accurate descriptions of the lands on which non-resident taxes of 1886 and resident and omit- ted taxes of 1885, have been rejected, and the correct amount of taxes thereon. Where you reduce the number of acres, the valuation thereof and taxes thereon must be reduced in the same proportion ; but where the acres are increased, the valuation and taxes must remain as they were. That no interest is to be added to such relevied taxes. That you are to furnish the Comptroller with all maps and. surveys required by him. That unless you fully comply with the above require- ments, the Comptroller cannot admit any such rejected taxes relevied on the roll for 1887, but that such taxes must then be charged on your town ; and That all taxes assessed as resident, or omitted, for years prior to 1885, and all assessed as non-resident for years prior to 1886, must be charged on your town. They cannot be hereafter admitted, nor legally collected, under any circumstances. Before extending the taxes on the assessment roll of your town for the year 1887, you will please examine said roll and see: That the Assessor’s oath, worded strictly as required by law, signed by the Assessors and certified by an ‘‘ officer of their county, authorized by law to administer oaths,” is written or printed thereon. That the Assessors of your town, after the 3d Tuesday of August, 1887, severally appeared before such officer, and made and subscribed said oath ; and That the following provisions of law are fully complied with, yiz.: Sec. 31. The Board of Supervisors shall also make such alterations in the descriptions of the lands of non- residents, as may be necessary to render such descriptions conformable to the provisions of this chapter, and if such alterations cannot be made, they shall expunge the de- scriptions of such lands, and the assessmenis thereon, from the assessment rolls.” See Revised Statutes (6th edition), vol. 1, page 942. 438 Tue LAw OF SUPERVISORS. The provisions referred to in said section, are substan- tially as follows, viz.: 1st. Unoccupied lands, not owned by a person residing in the town or ward where the same are situated, must be assessed in a part of the assessment roll separate from the other assessments, under the heading, ‘‘ LANDS OF NON- RESIDENTS.” 9d. If such lands be a part of a village, patent, purchase, reserve, township, or other large tract, the name (and number thereof, if numbered) must be set down on the roll, above the list of lots therein; the name of the larger division first, followed by the smaller divisions thereof ju their proper order. 3d. If such village, patent, purchase, reserve, township, or other large tract, or any smaller division thereof, is subdivided into numbered lots, sections or sub’s, the land in each of the smallest subdivisions thereof which are numbered, must be separately assessed (unless buildings are so located thereon that it is not divisible, in which case the fact should be stated), and the lot numbers must be set down in the proper column, in numerical order, without the name of the owner. Where whole sub’s or lots are assessed, all descriptions and boundaries thereof should be omitted. 4th. Where the land assessed is not the whole of a named tract, or of a numbered sub. or lot, the part as- sessed must be described by giving the exact location and dimensions, a survey, or the complete boundaries thereof. Where boundaries are given, and the land joins the tract, sub. or lot line, it must be bounded thereby ; in other cases, by giving the name of the owner or occu- pant of the adjoining property, or by other definite lines. Where a survey is given, the boundary and point of ter- mination of each line must be stated. The description should commence on a line with and following the sub. or lot number, and should terminate on the line with and preceding the number of acres. 5th. Where the land assessed is ‘‘ not on any map, nor in any village or named tract,” or the “‘hame of tract is COMPTROLLER’s INSTRUCTIONS TO SUPERVISORS. 439 obsolete,” each parcel of such lands must be separately assessed, under such heading, and be definitely described by giving the exact location and dimensions, or the com- plete boundaries thereof. 6th. The quantity of land, must, in all cases, be set down on the assessment roll, in the proper column. For the city or village lots, the dimensions should be stated, instead of the acres. 7th. All other taxes against the same parcel of land should follow the regular town and county tax thereon, on the lines below ; and neither the lot number, descrip. tion of land, acres, nor valuation, should be repeated. 8th. When two or more school taxes are separately relevied against the same land, by the Board of Super- visors, on the roll for any one year, the date of the orig- inal warrant of the School Trustees for the collection of each tax must be stated on said roll. 9th. Each rejected, resident, canceled or omitted tax, must be described as such, the year of such tax must be stated opposite each item of tax, and each year’s tax, and each kind of tax, must be separately extended. The amount of taxes heretofore rejected, annually, at this office, has varied from $41,000 to $71,000. Of this amount, for years past, not one-eighth has been relevied so as to become a legal charge on the lands. The re- mainder has, or must eventually, become a charge on the towns in which the lands are located. If you, and the other members of your Board of Supervisors, will take this matter in hand, and faithfully perform your duties, this evil can be corrected in your county, and the taxes for 1886 be collected from these lands, which have heretofore virtually escaped taxation. The form on the following page * will give youa gen- eral idea as to the proper construction of an assessment roll of lands of non-residents. As the law further provides that Boardsof Supervisors shall cause corrected assessment rolls of each town, or a fair copy thereof, to be delivered to the Collector of taxes * See post, § 562. 440 THe LAw OF SUPERVISORS. for such town, it becomes your duty to see that the roll delivered to the collector of your town for this year, is made to fully conform to the requirements of law, and that the descriptions, etc., thereon, are free from all the errors and defects which caused the rejection of the 1886 taxes, which errors and defects are fully set forth in the statement herewith. Believing that you will esteem it a privilege to be in- strumental in having all taxes in your town legally levied, in relieving the tax payers thereof from every un- necessary charge, and in placing such charge where it. properly belongs, I remain, respectfully yours, ALFRED C. CHAPIN, Comptroller. § 533. Jurisdiction of Board over assessment rolls. Except as declared in the statutes, the Board of Super- visors are far more powerless to make alterations or amendments in the assessment roll than the individual Supervisor. The duties which the statutes have devolved upon the Board of Supervisors are few and by no means intricate or complicated. Except that certain errors may be corrected in a partic- ular manner, hereafter pointed out, and, except in the cases where jurisdiction is conferred upon the Board to review certain assessments and make certain additions, the Board must take the assessment roll as they find it, and act upon it accordingly. The power to equalize the assessments, which is treated of in chapter XIV., does not, in any sense, authorize an alteration of the rolls, except as therein specified. Except in the cases hereinafter stated, it matters not whether the Assessors have decided rightfully or wrong- fully; the Board have no right to review their action. Whether the assessed value is too high or too low; whether exempt property has been assessed or tax- able property has been exempted, the action of the Assessors is conclusive upon the Board. The aggrieved party’s remedy lies in a different channel, and before REVIEW OF ASSESSMENTS BY SUPERVISORS. 441 a different forum than the Board of Supervisors. § 534. Cases in which the Board may review assessments. It will be borne in mind that after the assessment. roll has been completed, it is deposited with one of the Assessors and that notice is to be given that it is so left and will be open to inspection until the third Tuesday in August, when the Asssesors will convene to hear objec- tions, review and correct the assessments. 1 R. 8. 393, 8§ 19, 20, (2 R. S. [8th ed.] 1098.) 1. Failure of Assessors to meet on “review day.’ Should the Assessors meet according to such notice, hear complaints and review and correct, or refuse to make changes in their assessments, then the Board of Super- visors will have no right to review their action. But, in case the Assessors should ‘neglect to meet for review, any person aggrieved by the assessment of the Assessors may appeal to the Board of Supervisors, at their next meeting, who shall have power to review and correct such assessment.” Laws 1851, chap. 176, § 5; 2 R. 8. (8th ed.) 1099. The plain meaning of this provision is that in such case the Board of Supervisors shall be vested with the same jurisdiction to hear and determine appeals that the Assessors would have possessed had they convened ac- cording to their notice. For the powers possessed by the Assessors on “review day,” and how they shall be exercised, see § 434, which apply equally here. It must be observed that the failure of the Assessors to meet as required by the statute, does not confer jurisdic- tion on the Board of Supervisors, generally, to review assessments. The powers of the Board to review assess- ments is, by the statute, restricted to hearing the ap- peals of aggrieved parties, in relation to the assess- ments against themselves. One person has no right to appeal in relation toan assessment that is not against himself nor his property ; and upon his appeal the Board can only review assessments against the party appeal- ing or against his property. That a contingency should arise where the Board will 442 Tue Law OF SUPERVISORS. be called on under this provision of the statute is quite unlikely and will necessarily be of rare occurrence. 2. Rents reserved in leases in fee. It shall be the duty of the Assessors of each town or ward, while en- gaged in ascertaining the taxable property therein, by diligent inquiry, toascertain the amount of rents reserved in any leases in fee, or for one or more lives, or for a term of years exceeding twenty-one years, and charge- able upon Jands within such town or ward; which rent shall be assessed to the person or persons entitled to re- ceive the same as personal estate, which it is hereby de- clared to be, for the purposes of taxation, under this act, at a principal sum, the interest of which, at the legal rate per annum shall produce a sum equal to such annu- al rents: and in case such rents are payable in any other thing except money, the value of such annual rents in money shall be ascertained by the Assessors, and the same shall be assessed in manner aforesaid. And in case the name or names of the person or per- sons entitled to receive the rent reserved upon any lot or parcel of Jand on which any rent is reserved, as pro- vided in this section, cannot be ascertained by the Assessors, then the same shall be assessed against the tenant or tenants in possession of said lot, as rents re- served. Laws 1846, chap. 327, § 1, as amended by Laws 1873, chap. 809 ; 2 R. S. (8th ed.) 1106. The Assessors shall in all cases of assessments under chapter three hundred and twenty-seven of the Laws of 1846, specify in the assessment rolls each rent so assessed, and the value fixed upon articles other than money, in which such rents are payable, and whenever assessments are made against any person in any town or ward in which he does not reside, the Board of Super- visors of the county to which such assessments are re- turned, shall have in all respects as full power and authority, and it shall be their duty, to correct such assessments as to the valuation of the rents, and as to the gross amount for which such person shall be assessed as the Assessors have as to a resident of the town; and such Board of Supervisors may reduce the amount of such assessments in the respective towns or wards of the coun- REVIEW-OF ASSESSMENTS BY SUPERVISORS. 443 ty, in proportion or otherwise, as the nature of the cor- rections require to make such assessments just. Laws 1858, chap. 357; 2 R. 8. (8th ed.) 1108. For the decisions of the courts construing these pro- visions, see ante, § 409-411. The provision of the act of 1858, chap. 357, simply confers the same power of correction in the case of a non-resident tax payer, which the Assessors have in the case of a resident of the town. It does not authorize a variation from the rule prescribed by the statute for the assessment of rents (Laws 1846, chap. 327, § 1) although it be made to appear that the Assessors have, in viola- tion of their duty, assessed other descriptions of tax- able property at less than their just and full value, thus making the owner of the rents bear more than his just proportion of the taxes. People v. Supervisors of Dela- ware Co., 60 N. Y. 381. 3. As to non-resident lands. The Board of Supervisors shall also make such alterations in the descriptions of the lands of non-residents, as may be necessary to render such descriptions conformable to the provisions of this chapter [R. S. chap. XIII.]; and if such alterations cannot be made, they shall expunge the descriptions of such lands, and the assessments thereon, from the assess- ment rolls. 1 R. 8. 395, § 82; 2 R.S. (8th ed.) 1104. DUTY OF SUPERVISORS IN RELATION TO OMITTED LANDS. § 535. Omitted lands of preceding year. It is made the duty of the Assessors, upon the appli- cation of three tax payers of their town, city or ward, who consider themselves aggrieved, to include in the current assessment roll any land or property, legally liable to taxation, that was omitted in the assessment roll of the preceding year, etc. Laws 1865, chap. 453, §1;2R. 8. (8th ed.) 1111. The Board of Supervisors of the county or city in which said town, city or ward, is situated, at the next annual meeting, upon the petition of the Assessors of said town, city or ward, that such land or property was 444 THE LAw OF SUPERVISORS. not taxed on the preceding year, shall proceed to levy a tax on the same at the rate per cent. of the tax imposed upon land or property in said town, city or ward on the preceding year. Laws 1865, chap. 453, § 2. Lands assessed to the wrong person ‘in the preceding year, may, under this statute, be assessed to the true owner in the assessment roll for the current year. Over- ing v. Foote, 43 N. Y. 290. See notes to ‘‘Omitted Lands,”’ § 430. § 536. Omitted lands from roll in current year. Upon the petition of the Assessors of any town, city or ward, that any land or property in any town, city or ward in the state has been omitted in the assessment roll of the current year, they [the Board of Supervisors] shall insert the same in the assessment roll of said town, city or ward, at the valuation of the preceding year, and .tax the same at the rate per cent. of the current year. LIbid., § 2. Form of petition by Assessors. To the Honorable the Board of Supervisors of Niagara County, N. Y.: We, the undersigned, Assessors (or two of the Assess- ors) of the town of Hartland, in said county, do hereby petition your honorable body, that the following prop- erty be placed upon the rolls of said town for the year 1887, it having been omitted by mistake : George Retchles, S. pt. Lot 9, Sec. 1, T. 15, R. 6., 15 acres at $58.00 per acre . . . . $870.00 George Retchles, S. pt. Lot 5, Sec. 9, T. 15, R. 6., 40 acres at $38.00 per acre . . . . . $1,520.00 JOHN WALKER, GEORGE W. GILL, | Assessors. § 537. Amount to be deducted from other taxes. The whole amount of tax levied upon land or property omitted in the tax levy of the preceding year shall be de- ducted from the aggregate of taxation to be levied upon ° said town, city or ward for the current year, before such tax is levied, and shall be collected by the same author- SUPERVISORS MAY CoRRECT CLERICAL Errors. 445 ity and in the same manner as the ordinary taxes of the current year are collected. Laws 1865, chap. 453, § 3. § 538. Correction of clerical errors in assessment rolls. Whenever it shall be made to appear to the Supervis- ors of any county, by the petition of the Assessors of any town in said county, or otherwise, that any land or prop- erty legally liable to taxation in said town, has, by any mistake in transcribing or copying the assessment roll of the preceding year, been placed on the assessment roll annexed to the warrant delivered to the Collector, at a val- uation less than that actually appearing upon the origi- nal assessment roll signed by the Assessors, said Board of Supervisors shall proceed to levy tax on the same upon a valuation equal to the difference between the actual valuation made by the Assessors and the amount at which, by such mistake, it was placed upon such roll, and at the rate of per cent. of the tax imposed upon land or property in said town in the year in which said mis- take occurred. Laws 1865, chap. 453, § 4, as amended by Laws 1868, chap. 575, § 1. § 539. Powers of the Board under preceding section. The meaning of this section and the powers conferred upon the Board of Supervisors by it are too clear to ad- mit of serious doubt or to require much discussion. The power conferred to correct mistakes is confined and restricted to a mere comparison of the assessment roll pre- sented to the Board by the Supervisor of a town, with the original roll filed in the Town Clerk’s office, and to correct any ‘‘mistake” that may have been made ‘“‘in transcribing or copying the assessment roll” whereby the valuation of any taxable piece of property shall be “‘less than that actually appearing upon the original assessment roll signed by the Assessors.” When such an error or mistake is discovered, the ‘‘ Board of Supervisors shall pro- ceed to levy tax on the same upon a valuation” as pre- scribed in the section. And this is the extent of the power conferred upon the Board ; and any other or further action taken by the Board is not authorized by this sec- tion. 446 THE Law OF SUPERVISORS. § 540. Correction of manifest clerical or other errors. The Board of Supervisors of any county, except New York, Kings and Albany, may, by a two-thirds vote of all the members elected thereto, * * * * * 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. Laws 1869, chap. 855, § 5, as amended by Laws 1885, chap. 326. As this section of the act of 1869 was originally enacted and as amended by Laws 1871, chap. 695, it was provided that these ‘‘ manifest clerical and other errors ” might be corrected by the Board of Supervisors on the recommend: ation of the County Judge of the county. It was while the law stood in that shape that most of the decisions of the courts bearing upon the subject were made. But as various constructions were given to the section by different County Judges and considerable embarrass- ment resulted therefrom, that portion of the law which vested the County Judge with power to act in the prem- ises was stricken out in the amendment of the act in 1885. § 541. Errors that may or may not be corrected. The provision of this act was not intended to, and does not, subject all assessments to review, or permit a correc- tion of all errors, but simply those which are ‘‘ manifest,” i. e., apparent by an examination of the assessment roll or return, needing no extrinsicevidence to make them clear, and which are also ‘clerical or other errors in the as- sessments or returns,’’i. e., some error of form in the assessment roll, not an error of the Assessors in making the assessment, nor any substantial error of judgment or of law. Hermance v. Supervisors of Ulster Co., 71 N. Y. 481. 2 An error that affects the substantial rights of a party, although clerical, can not be corrected under this statute. People v. Forrest, 96 N. Y. 544. Omission of Assessors to deduct the assessed value of SUPERVISORS MAY CORRECT CLERICAL Errors, 447 the real estate of a bank, from the value of its shares of stock, is not a ‘‘manifest clerical or other error, to be corrected under said act.” Jn re Farmers’ National Bank, 1 T. and C. 383. Under this section only manifest errors can be correct- ed, that is, such as are clear, plain, obvious and evident ; such as are apparent from an examination of the tax roll itself, or at least needing for their demonstration nothing more than a mathematical calculation. Williams v. Su- pervisors of Wayne Co., 14 Hun, 344, reversed 78 N. Y. 561, but on a different ground. The statute does not include errors of judgment, of fact or of law, or jurisdictional questions. Ibzd. § 542. Powers of Supervisors in relation to errors. It would seem that these decisions of the courts ought to ve sufficient to convey clearly to the minds of Super- visors that this section confers no authority to interfere with the valuation of property, changing of names of persons on the roll, or to do any act that will in any material matter affect the roll, or any assessment upon it. It confers power to correct only the merest clerical errors that do not in any material or substantial aspect. affect an assessment or the roll. The errors that the Board are authorized to correct by this section are such as courts would probably disregard as immaterial when they should appear in a judicial pro- ceeding involving the merits of the transaction. The powers of Supervisors are very limited, in so far as assessment rolls are concerned, and when they go out- side of the authority conferred on them by law, and any loss, damage or injury is sustained in consequence of their illegal act, they are personally liable. § 543. Manifest clerical or other errors in Kings County. 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 * * * tocorrect any manifest clerical or other error in any assessments or returns made by any one or more town officers to such Board of Supervisors, 448 THe LAW OF SUPERVISORS. or which may or shall have properly come before such Board for their action, confirmation or review. Laws 1886, chap. 306, § 1. This act shall not apply to the City and County of New York. Ibid., §2;see authorities cited to preceding section. § 544, Manifest clerical errors in Albany County. Whenever any manifest clerical error shall exist in the transcribing of any assessment or tax, or in carrying out the amount of any tax levied upon any property, or against any person or corporation in any town, village city or ward in the County of Albany, during the two years last past, or shall hereafter occur in the tax rolls or other records, it shall be the duty of the Assessors of such town, village, city or ward where such clerical error shall have occurred, to furnish to the person or corporation injured thereby a transcript of the assess- ment or record in which such error shall exist, with a statement of what the error was, and the excess of the tax levied or paid in consequence thereof ; which tran- script and statement shall be signed by a majority of such Assessors. The person or corporation injured by such errors may thereupon present a claim for such excess to the Board of Supervisors of Albany County, in the man- ner prescribed by law for the presentation of claims against the County of Albany, and the same shall be considered and acted upon by said Board, and be allowed and audited at such sum as shall be proper ; and the sum so allowed shall be deducted from the tax levied against such person or corporation, or, if already paid, shall be repaid to him or it. Laws 1887, chap. 522. § 545. Errors by whom corrected. Committee on assessments. The matters treated of in the foregoing sections of this chapter are usually referred to the committee on assessments, who investigate the different questions presented and report the facts with their conclusions, usnally in the form of a resolution, to the Board for its action. It is the Board and not a committee that has jurisdiction to order the corrections to be made. Of course it is competent for the Board to SUPERVISORS MAY CORRECT CLERICAL ERRORS. 449 order the committee to make the corrections or it may order its Clerk to make them. It is immaterial whose hand does it so long as the direction to do it isa matter of record made by the Board itself. All matters relating to corrections or alterations in the assessment rolls properly go to the committee on assessments and not to the committee on erroneous tax- ation. The reason is obvious, until the roll has been completed and signed by the Board of Supervisors the proceedings concern assessments. It is not until the roll is signed and the Collector’s warrant is added that it be- comes taxation. There is nothing that can be embodied in the form of a report by the committee on assessments, that can be given, that would aid the committee. Their report to the Board should state simply the facts showing the error or alteration that should be made within the nar- row limits prescribed in the foregoing section, accom- panied with a resolution that the correction or alteration be made and by whom it shall be made. The action of the Board on everything concerning the assessment rolls and the levy of the taxes, should be made matters of record, in the form of a resolution. It is too frequently the case in the printed proceedings of the Board of Supervisors to omit the reports of commit- tees in relation to errorsin assessments and erroneous tax- ation. All such reports should be printed in full to show the applicability of the resolution adopting the same. § 546. Committee on erroneous taxation. . The duties of this committee relate to an entirely different class of cases. Its attention is mainly directed to petitions for the refunding of taxes improperly or illegally levied under former assessment rolls and which have been collected. Asto such matters the jurisdiction of the Board is more extensive. Whenever it appears satisfactorily to the Board in the cases provided for in the statute that money has been improperly or illegally taken from a tax payer the Board can order it refunded. 29 450 Tue LAW OF SUPERVISORS. At every meeting of the Board petitions of this sort are presented to the Board. It is the practice, in many of the Boards of Supervis- ors to refer to this committee the petitions relating to errors in taxation in the cases of omitted lands. To what committees such petitions are referred for in- vestigation is a matter which relates merely to the prac- tice and not to the principle; and it is legal to refer them to either of such committees, as the action of the committee in either case, is merely advisory and has no legal force until acted upon by the Board, as a body. The report of the committee is simply a statement of the facts in each individual case (although many cases may be embraced in one report) with the committee's conclusions accompanied with a resolution which, when adopted by the Board, becomes the official action of the Board. Form of Report (Taken from proceedings of Board of Supervisors of Erie Co., 1885.) Mr. Merzig presented the following report of the Com- mittee on Erroneous Taxation, which was laid on the table and ordered printed. : To the Honorable the Board of Supervisors of the Coun- ty of Erie : Gentlemen: Your Committee on Erroneous Taxation: to whom were referred the following petitions, have had the same under consideration and submit the following report. On the petition of George W. Peck and others your committee would recommend they be allowed to pay the said taxes at face of tax sale from the year 1869 to 1879, and frony 1879 to 1881 at (7)seven per cent., and from 1881 to 1884 according to law, and the County Treasurer be au- thorized to cancel of record in his office the several named taxes by them, paying the same as aforesaid, together with all costs of sale, notices and searches. COMMITTEE ON ERRONEOUS TAXATION. 451 On the petition of Joseph Churchyard your committee would recommend that the Treasurer be authorized and directed to cancel and discharge of record the tax sale on the property described in said petition, certificate No. 163, it being a clerical error committed in the office of the Treasurer in 1881. On the recommendation of John H. Keeler and Moses Dart, Assessors of the Town of Hamburg, your com- mittee would recommend that the Clerk of this Board be directed to draw an order in favor of John G. Brendel for the sum of thirteen dollars and ninety- six cents ($13.96), being for erroneous tax paid by him in the year 1885, and charge the same to the Town of Hamburg. On the petition of the Society of Friends, your com- mittee would recommend as follows : Whereas, The property of the Society of Friends is used for religious purposes, the same in exempt of tax- ation by law ; therefore Resolved, That the Clerk of this Board be and he is hereby directed to draw an order on the County Treasurer in favor of said society, for the sum of twenty five dollars and ninty-six cents ($25.96) and charge the same to the City of Buffalo. On the petition of the Women’s Christian Association of the City of Buffalo, your committee would recom- mend that the Treasurer be directed to cancel and dis- charge of record the tax appearing against said property for the year 1884, the same being exempt from taxation. On the petition of Sarah Tayos we would recommend the following : Whereas, The petitioner has taxes on ten feet of land in excess of what should have been assessed to her, from 1863 to 1885 ; therefore Resolved, That the Clerk of this Board, together with the City ‘Assessors, be directed to compute the amount so erroneously paid by the petitioner, and the Clerk thereupon be authorized and directed to draw an order on the County Treasurer in favor of the peti- 452 Toe Law OF SUPERVISORS. tioner, for the amount so computed without interest. Respectfully submitted, N. MERZIG, B. A. TYRRELL, H. H. VOGHT, JOSEPH LENHARD, J. H. LONG, N. B. GATCHELL, Committee. On motion the report was adopted. § 547. Extending the tax. After the Board has made all the corrections and ad- ditions to the rolls permitted or required by law, the rolls go to the committee on equalization. For the proceed- ings of that committee see chapter XIV. where the mat- terof equalization is treated. After that committee has reported and the action of the Board thereon has been had, fixing and determining the equalization of the taxes, and after the various sums to berasied in the different towns or wards, for local and other purposes, have been agreed upon and ordered in- cludedin the roll, the next step to be taken is to levy and extend the taxes upon the assessment rolls, as corrected and equalized. Bellinger v. Gray, 51 N. Y. 610. § 548. Amount of tax to be placed in fifth column. They shall also estimate and set down in a fifth col. umn, to be prepared for that purpose, in the assessment rolls appointed to the several sums set down as the valu- ations of real and personal estates, the respective sums in dollars and cents, rejecting the fractions of a cent, to be paid asa tax thereon. 1 R, S. 395, § 33, (2R. 8. [8th ed.] 1104). § 549. Extension must be under supervision of the Board. The duty imposed upon the Board of Supervisors of the county requires not only that it shall establish a ratio upon which the tax is to be based, but also that it shall compute and enter in the roll, in a column opposite the valuation of real and personal estate, the amount of tax levied thereon ; this must be done under the supervision EXTENDING Taxes on ROLL. 453 of the Board, and before the roll can be certified to as com- pleted. People v. Hagadorn, 104 N. Y. 516. The duty of passing upon the question of a corrected assessment roll, and certifying to its accuracy and com- pleteness as a perfected roll, is a judicial duty which cannot be delegated. Ibid. § 550. Establishing and proving ratio. To determine the ratio, divide the amount of tax to be raised, by the aggregate assessed value of the property subject to taxation and the quotient establishes the ratio. Then to arrive at the amount of tax on any piece of property, multiply the assessed value by the ratio and the product will be the amount of tax to be raised on that property. In extending the tax, fractions are to be avoided and they should be so apportioned as to provide for a defi- ciency or surplus which may occur, and so that the whole amount of the taxes extended will correspond with the aggregate amount to be raised. It is usual to prove each page of the roll as it is ex- tended—which is done by adding the amount of the taxes extended, together, and then multiplying the aggregate valuation of property on the same page by the ratio ; and ifthe product equals the footing of taxes extended, the extensions are correct. By thus proving each page a deficiency or surplus on account of ignoring fractions is avoided and the result at the end of the roll will be correct. § 551. Extension of tax to be confirmed. After the taxes have been extended by the Clerks the rolls should be presented to the Board, and the action of the Clerks in making the extentions should be ratified and confirmed by the Board, thus making the acts of exten- sion the acts of the Board. A simple resolution adopted and entered in the minutes is sufficient. For instance: Resolved that the taxes as extended upon the assess- ment rolls of the several towns and wards presented to the Board by the Supervisors thereof, be and the same are hereby ratified and confirmed, and that warrants be 454 THe LAW OF SUPERVISORS. issued to the Collectors of such towns and wards for the collection of the same. § 552. Collector’s fees must not be included in tax list. Whenever any Board of Supervisors shall make out any tax list and warrant, they shall not add thereto the fees of the collection, but such fees shall be paid and collected as above prescribed in sections twenty-nine and thirty of this act. Laws 1845, chap. 180, § 31; 1 R.S. (Sth ed.) 919. The sections referred to provide that the Collector shall collect a percentage for his fees in addition to the tax. Where a warrant issued by the Trustees of a school district, for the collection of a school tax, directed the Collector to collect the amount of the assessments, together with five cents on each dollar for his fees, it was held an excess of authority in the Trustees so far as related to the fees of the Collector, and the warrant was no protec- tion to the Collector, the irregularity being apparent upon the face of the warrant. Stroud v. Butler, 18 Barb. 327. § 553. State tax, county’s proportion, how determined. The State Board of Equalization shall meet in the City of Albany on the first Tuesday in September in each year, for the purpose of examining and revising the val- uations of the real and personal estate of the several coun- ties as returned to the office of the Comptroller, and fix- ing the aggregate amount of assessment for each county on which the Comptroller shall compute the tax. * * * * A statement of the amount of assessment for each county, as fixed by the Board of Equalization, shall be cer- tified by said Board and deposited in the office of the Comptroller, as soon as Completed, and before the tenth day of October in each year. The Comptroller shall im- mediately ascertain from this assessment, the proportion of state tax each county shall pay, and send a statement of the amount by mail, to the County Clerk, and the Chairman and Clerk of the Board of Supervisors,of each county. If the name or residence of the Chairman or Clerk of the Board of Supervisors shall be unknown to the Comptroller, he may endorse such statement in an ENFORCEMENT OF COLLECTION oF STATE Tax. 455 envelope addressed to him by his name of office, and di- rect it to the county town of the county. The County Clerk shall file the statement received by him, in his of- fice, and immediately send a copy thereof to the Chair- man of the Board of Supervisors of the county. Laws 1859, chap. 312, §8; 2 R. S. (8th ed.) 1109. § 554. Amount as fixed by Comptroller to be assessed, may be compelled by mandamus. The amount of state tax which each county is to pay, so fixed and stated by the Comptroller as aforesaid, shall be assessed by the Supervisors or other officers authorized to make the assessment of state taxeson the tax roll for the calendar year, in and for which the same shall have been ascertained and stated by the Comptroller as afore- said, and shall be included in and collected by the annual collection of taxes in the several counties, in the manner prescribed by law ; and if the Board of Supervisors or other officers authorized to make such assessment shall ‘neglect or refuse to include and assess such tax, or any part thereof, in said assessment roll, then the Comptroller of the state may immediately proceed by mandamus be- fore any court having jurisdiction to compel the Board of Supervisors or other officers required to make such as- sessment to do the same or make a new assessment for the same, which shall be collected as provided for the col- Jection of other taxes. Laws 1859, chap. 312, § 9, as amended by Laws 1874, chap. 351, § 3. $555. Taxes, how paid on non-resident lands. Over-charges to be refunded. Any person may pay the tax for any one year and the interest and charges thereon, on any tract or lot of land, without paying the tax of any other year ; and in case any tract or lot of land shall have been returned as con- taining a greater quantity of land than it shall actually contain, the amount overcharged shall be deducted, or if the tax shall have been paid according to such return, shall be refunded out of the treasury, on satisfactory proof being produced to the Comptroller, of the quantity actually contained in such tract or lot, at any time before the sale of such lands, but no such over-charge shall be 456 THE LAW OF SUPERVISORS. cancelled, nor shall such over-payments be refunded unless application shall be made to the Comptroller therefor, within six years after the assessment of such over-charge. Laws 1855, chap. 427, § 30; 2 R.S. (8th ed.) 1134. § 556. Over-charges to be re-charged to county. If the whole amount of the tax, in case of such over- charge, shall have been paid to the County Treasurer, out of the treasury of the state, the Comptroller shall charge the amount so refunded, with interest and charges thereon, to the Treasurer of the county from which the tax was returned, and shall transmit an account thereof to him. Jbid., § 31. § 557. Town to be liable therefor. Such County Treasurer shall deliver such account to. the Board of Supervisors, at their then next meeting, who shall cause the amount thereof to be added to the pro- portion of the charges of the county, to be raised in the town in which the tax was laid. Jdid., § 32. § 558. Supervisors to refund taxes illegally or improperly assessed. The Board of Supervisors of any county, except New York, Kings and Albany, may, by a two-thirds vote of all the members elected thereto * * * * refund to. any person the amount collected from him of any tax, illegally or improperly assessed or levied. Amount, how raised. In raising the amount so. re- funded, 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 consideration the portion of state, county, town and ward tax included therein, and the extent to which each town or ward has been benefited thereby. Laws 1869, chap. 855, § 5, as amended by Laws 1885, chap. 326, § 1. Prior to the amendment of this section by the act of 1885, such taxes were to be refunded on the order of the county court. By the amendment of 1885, the duties theretofore performable by the county court were de- REFUNDING ILLEGAL, ETC., TAXES. 457 volved upon the Board of Supervisors. With thisexplan- ation the cases decided will be more readily understood. Where a tax is clearly illegal and has been collected, the Board of Supervisors may order it to be repaid; and it is not essential to the exercise of this power that the assessment shall have been first adjudged illegal by some competent tribunal. Matter of Catholic Protect- ory, 77 N. Y. 342. In the case above cited a tax was levied upon exempt property and collected, and it was held a proper case to refund the tax. Williams v. Supervisors of Wayne Co., 78 N. Y. 561. So where the Assessors of a town improperly assessed one not a resident of the county, for unoccupied lands belonging to him, situated within the town, instead of assessing the lands as non-resident lands, and the owner having voluntarily paid the tax, it was a proper case to be'refunded under this statute. Harris v. Supervisors of Niagara Co., 33 Hun, 279. This section was intended to relieve persons by re-im- bursement thereof, from taxes which were not legally chargeable to them or on their property, thatis, from taxes which they should not be required in any manner to pay. The act refers to the tax itself rather than to the method of making the assessment or levy—to an illegal rather than to the erroneous assessment or levy of a legal tax. Ibid.; Hermance v. Supervisors of Ulster Co., 71 N. Y. 481. § 559. Refunding taxes on lands divided by county lines. Any person who shall have heretofore owned or shall hereafter own a farm or lot of land which has been or shall be divided by the county line between two or more counties, which farm or lot shall have been or shall be as- sessed, in whole or in part, in or for the same year or years, in towns in said counties, and who shall have paid the taxes so imposed thereon in said counties, may commence an equitable action in the Supreme Court against said counties to determine in which of said counties said land was properly taxable for said year or 458 Toe Law OF SUPERVISORS. years, to recover of the county or counties wherein said taxes have been or may be wrongfully collected, the amount thereof, with interest thereon, from the time of the payment thereof, and for such relief in the premises as to the court shallseem equitable and just. Laws 1870, chap. 325, § 1. § 560. Assessment to refund taxes adjudged to be paid in such action. Upon the final determination of said action in favor of the plaintiff therein, or of the appeal, if one be taken, the Board of Supervisors of the county against which judg- ment shall be rendered, requiring it to refund said taxes, are hereby authorized and required to pay the amount thereof to be levied upon the taxable property of said county and paid to the plaintiff therein, and, in assessing and levying such tax, they shall adjust and apportion the same upon the different towns and cities therein as,in their judgment shall be equitable, taking into con- sideration the amount of state, county and local tax included in such original assessment. Laws 1870, chap. 325, § 4. § 561. No claim to be made upon the state in such cases. No claim shall be made upon the state by such county, or any town or city therein, for the repayment of any part of said tax so refunded. Jbid., § 5. § 562. Form of completed assessment roll. The following form shows a completed assessment roll with the tax extended, viz.: 459 ForM OF ASSESSMENT ROLL. og of OF Ber‘es 00 000'%or$ 00 009‘Los'T$ + — | 3018 “RT ON PIB ‘100 00'S 00 000‘009‘T “$J991]S YIXIS-AIQSIT OF pue yajy-Ajoq weed -0q pus DOI aA Y IANO g Japun pues uo AlUOSseUL pues peq-peor ‘ainqjonays : -radns ‘syowl}, ‘spauuny]|----Auedwmop peolpey 190A ooo et a[qexeL aospny ¥ TeajUED YOK MON 000‘9 pee $ WAS 09 WIGS OTM, 00 00F 00 000‘00r - og SuLMpOVNUPL UOJAO.ID 00'S nn 000‘901$ =e “-o"yendep 00 0% 00 000's 3% +09 Sulanjoujnusyp, WoyeAoIN ‘payonpap ‘qdutoxe ‘sorLimoag “§ “1 Ul 000'sd 00 F 00 000'T “7777 -799B489 8, UMOIg UGOL jo oaqsnay, sev ‘ovesy ‘uosddny “pojonpep ‘uondurexo si] Joy 0OS'T$ oF 00 OOT OT vororo sss ASY ULBIIH ‘SuruUUN 00 8 00 000'% OGG) NER RISER IIE ueqda;zg ‘uany log oF 00 F OOMNTTE ff ttre strinis Joyo ‘@AoIN 00 2 00 oos$ OO REESE 'V aor ‘UnETD ‘sTB[[Op Ul "9] 190 PUB SABE “sya TARE wus ‘SIB] “gaaoe “SyIVUIE ie go p7/PUB SIBT[Op ul [tPF oe -[Op ul spur, ‘SJUBPIGVIUL sIqexey JO SoUIBNT [Op ul xe} Jog xB} Jo qunowy Soaaresoaed jo onfea yng Ul spurl jo AyyuENy Tre Jo onywa [NT he ‘ 9 g ¥ & zg T NHATOD *S88T ‘squepisay fo spun'y ava AHL WOI 4O NMOT, FHL JO TIOY LINANSSaSSy 460 THE LAW OF SUPERVISORS. Assessment Roll of the Town of N. Y., for the year of 1887. s County of LANDS OF NON-RESIDENTS. No. of} Name of Tract, Patent, etc., and Description |No. of | Valua-|Amount of Lot. of Part. acres. | tion. tax. HARDENBURGH PATENT, $ Great Lot No.3, 5th Allotment, Division 3, 3) 64 $64 64 Highway 32 10/S. E. 4, 20 20 eM School or Division 6, 2|North 1, Rejected 1886 100 100) 1 50 se oe Highway 50 Ms “© School 28 Resident 1885 75 oe a “ 25 8/E. part. bounded W. by land of John Squeers, 160 120) 1 80 17,000 Acre Tract, Division 7, S. W. Corner, bounded N. by P. B. Buckley & Son’s land and E. by Hoit Brothers’ land, 287 287 2 87 Great Lor 4, East Division, Middle Allotment, 15|N. E. Corner, 20 chains long N. and S. and 15 chains wide E. and W., 30 40 40 127/N. W. Corner, bounded E. by Highway and S, by) Jand of John P. Jones. Vv 34 34 School I West Division, East Allotment, Ray’s Tract, 88/All in this County, 158 79 19 NOT ON ANY MAP, NOR IN ANY VILLAGE OR NAMED TRACT, Bounded N. and W. by lands of C. V. Baker, E. b the Hudson River and 8. by land of John Sill 93 186 1 86 School 62 OLD MILITARY TRACT, TowNsHIp 1, Thorn’s Survey, 87/Except N.E.44, 120 120) 1 20 “IN. E. 34, except undivided \4 paid by Smith Bell, 20 20 20 Highway 10 TOWNSHIP 12, Richard's Survey, 1/Sub. 1, : 172 86) 86 20/N. part, 60 chains wide N. and S., 386 193 1] 98 89/Allin this town, Resident, 1886 708 400 6 00 Thorn’s Survey, 63|/Bounded N. and S. by lot lines, E. by the Highway and W. by land of Peter Mesick, 53 146 1 46 TONAWANDA VILLAGE, Feet. es Brock 2, 80 66x132 80) WISCOY VILLAGE, Main STREET, Sours SIDE, 48|Bounded N. by Main Street, E. by land of John Riggs, 8. by land of Paul Kidder, and W. by land of Samuel Davis, 50x200 50 50 COLLECTION OF TAXEs, 461 ‘§ 563. Completed assessment roll to be delivered to Collector. The Boards of Supervisors of the several counties in this state, shall cause the corrected assessment roll of each town or ward in their respective counties, or a fair copy thereof, to be delivered to the Collector of such town or ward, on or before the fifteenth day of December in each year. 1R. 58. 396, § 36, 2 B.S. [8th ed.] 1105). The assessment roll must be completed by the Board of Supervisors, by the extension of the tages, before the war- rants required to be issued are annexed thereto. Bel- linger v. Gray, 51 N. Y. 610. § 564. Warrants to be annexed to roll, its contents. To each assessment roll so delivered to a Collector, a warrant, under the hands and seals of the Board of Super- visors, or of a majority of them, shall be annexed, com- manding such Collector to collect from the several per- sons named in the assessment roll, the several sums mentioned in the last column of such roll, opposite to their respective names. If the warrant be directed to the Collector of a town, it shall direct the Collector, out of the moneys so to be col- lected, after deducting the compensation to which he may be legally entitled, to pay, 1. To the Commissioners of Common Schools of his town, such sum as shall have been raised for the support of common schools therein ; 2. To the Commissioners of Highways of the town, such sum as shall have been raised for the support of high- ways and bridges therein ; : 3. To the Overseers of the Poor of the town, if there be no county poor-house or other place provided in the county for the reception of the poor, such sum as shall have been raised for the support of the poor in such town. 4. Tothe Supervisor of the town,all other moneys which shall have been raised therein, to defray any other town expenses ; and 5. To the Treasurer of the County, the residue of th moneys so to be collected. If the warrant be directed to the Collector of a ward, it 462 Tue LAW OF SUPERVISORS. shall direct the Collector to pay all the moneys to be col- lected, after deducting his compensation, to the Treas- urer of the county. In all cases, the warrant shall authorize the Collector, in case any person named in the assessment roll shall re- fuse or neglect to pay his tax, to levy the same by dis- tress and sale of the goods and chattels of such person ; and it shall require all payments therein specified, to be made by such Collector, on or before the first day of Feb- ruary then next ensuing. 2R. S. (8th ed.) 1105, § 87. § 565. Direction in warrant as to payment of taxes for high- ways and bridges. ’ All moneys raised and collected upon the taxable prop- erty of any of the towns of this state, for highway and bridge purposes, shall be paid over by town Collectors of taxes to the Commissioners of Highways of the towns in which said moneys are so raised and collected, and to no other officer or person whatsoever. It shall be the duty of the Board of Supervisors to issue warrants to the Col- lectors of towns, requiring the paying over by them of all moneys raised and collected for highway and bridge pur- poses, to the Commissioners of Highways of towns; and it shall not be lawful for the Board of Supervisors of any county to issue warrants to Town Collectors, directing them to pay over any moneys raised and collected upon any town for highway and bridge purposes, to the village authorities of any incorporated village, situated wholly or partly in any town. But nothing in this act shall pre- vent Boards of Supervisors from raising money under section two of chapter eight hundred and fifty-five of the Laws of eighteen hundred and sixty-nine, and from issu- ing warrants to collect the necessary money to repay the same. And said Boards of Supervisors may appoint a commissioner or commissioners to spend and account for any moneys raised for road or bridge purposes under said chapter eight hundred and fifty-five of the Laws of eight- een hundred and sixty-nine, under such regulations as said Boards shall deem proper. Laws 1878, chap. 377, § 1, as amended by Laws 1879, chap. 67, § 1. In and by section 2 of Laws 1878, chap. 377, all mon- COLLECTION oF TaxEs. 463 eys collected and paid over to Commissioners of High- ways for highway and bridge purposes is required to be expended in the town for that purpose. Such act does not apply to incorporated villages constituting a separate road district, or to special road districts in this state, now provided for by special act. Id., § 3. The action of a Board of Supervisors, in issuing a war- rant for the collection of taxes, is not the act of the sev- eral members as Supervisors of the towns respectively, but the corporate act of the county. Newman v. Super- visors of Livingston Co., 45 N. Y. 676. The warrant must be under seal, and as the members of the Board sign it individually there must be a seal to each name. Upon a tax warrant issued by the Board of Supervisors of Herkimer County, an impression was made with a die, upon which was engraved the words ‘*Seal, Herkimer County, Board of Supervisors.” No other seal was attached and the warrant was held to have been imperfectly sealed. Bellinger v. Gray, 51 N. Y. 610. A warrant issued by the Supervisors of a county, for the collection of taxes, is valid, although the persons sign- ing it are not described therein as Supervisors, and al- though their names are merely signed to it without any official designation. Sheldon v. VanBuskirk, 2 N. Y. 473. : Such a warrant, it seems, is a justification to the Col- lector without proving that the persons who signed it were in fact Supervisors, but were it otherwise, parol evidence would be competent to prove the fact. Ibid. A process regular on its face, and issued from a court or body of men having jurisdiction of the subject matter, protects a ministerial officer in the execution thereof. Ibid. The duplicate assessment roll attached to the warrant and delivered therewith to the Collector, proves, with- out other evidence, of an adjudication by the Supervisors the levying of thetax. Jbid.; Bradley v. Ward, 58 N.Y. 401. is The provision of the statute requiring the assessment 464 THe Law OF SUPERVISORS. roll and warrant to be delivered to the Collector by the fifteenth of December is directory only; a delay in the delivery until after that, time does not invalidate the warrant. Bradley v. Ward, 58 N. Y. 401. Although a warrant for the collection of a tax or assess- ment, pursuant to a statute of this state, may have been erroneously or irregularly issued, if on its face it gives authority to the officer to collect the tax or assessment, replevin cannot be sustained for property taken by virtue of the warrant. Troy and Lansingburgh R. R. Co. v. Kane, 72 N. Y. 614; Hudler v. Golden, 36 N. Y. 446. Where a law declared that goods and chattels upon lands for which taxes are assessed shall be deemed to be- long to the person to whom the lands are assessed, it was held that it did not apply to property belonging to another person in no way liable for the tax which was transiently upon the lands assessed, but in the possession of the owner for his own purposes; and where the Collector took such property an action to recover possession there- of by the owner wassustained. Lake Shore & M.S. R’y Co. v. Roach, 80 N. Y. 339. Mortgaged chattels remaining in possession of mortga- gor may be levied on and sold for taxes against the mort- gagor. Hersee v. Porter, 100 N. Y. 403. The duty of the Collector to pay to the several officers named in his warrant the sums required to be paid to them respectively, within one week after the first day of February, is the duty which the Collector and his sure- ties by their bond undertake shall be performed, and for a breach of such condition an action will lie on his bond. Looney v. Hughes, 30 Barb. 605, affirmed 26 N. Y. 514. The fact that after the roll had been completed by the Board of Supervisors and delivered to the Supervisor of the town, the latter, after the Board had adjourned, took out the leaves upon which were entered the non-resident lands and taxes, and inserted a copy in their place, did not invalidate the roll. Colman v. Shattuck, 62 N. Y. 348. The duty of the Collector to pay over the moneys col- lected, may be enforced by mandamus, and it is no defense COLLECTION OF TAXES. 465 that he has voluntarily paid over the moneys to the wrong officer. People v. Brown, 55 N. Y. 180. The jurisdiction of the Supervisors and the power of the Board of Supervisors to change the roll terminated with the levy of the tax and the delivery of the tax roll and warrant to the proper town officer. People v. Super- visors of Queens Co., 82 N. Y. 277-8; People v. Super- visors of Westchester, 15 Barb. 608. The duty of passing upon the question of a corrected assessment roll and certifying to its accuracy and com- pleteness as a perfected roll, is a judicialduty which must be performed by the Board and cannot be delegated. People v. Hagadorn, 104 N. Y. 516, affirming 8. C. 36 Fiun, 610. | Where the Board fixed the ratio of tax upon the aggregate amount of valuation, and without extending the tax, signed the roll and attached the Collector’s warrant thereto and delivered it to the Supervisor. of the town, with authority to compute and enter the amount of the tax, which he did, and then delivered the warrant to the Collector, the roll and warrant were held fatally defective. Ibid. , Where the affidavit of the Assessors to the assessment roll is defective in a material part, such as omitting the words, ‘‘ and at which they appraise the same in payment of a just debt due from a solvent debtor,” it renders the assessment roll and Collector’s warrant invalid. Inman v. Coleman, 37 Hun, 107. § 566. Taxes, to whom paid in cities. Whenever the laws respecting cities shall have directed the moneys assessed for any local purpose, to be paid to any person or officer other than those named in the pre- ceding thirty-seventh section, the Collector’s warrant may be varied accordingly, so as to conform to such alter- ation. 1B. S. 396, § 39, (2B. 8. [8th ed.] 1106). $567. Account to be transmitted to County Treasurer. As soon as the Board of Supervisors shall have sent or delivered the rolls, with such warrants annexed, to the Collectors, they shall transmit to the Treasurer of the 30 466 Toe Law OF SUPERVISORS. county an account thereof, stating the names of the sev- eral Collectors, the amount of money they are respectively to collect, the purposes for which the same are to be col- lected, and the persons to whom, and the time when, the same are to be paid ; and the County Treasurer, on re- ceiving such account, shall charge to each Collector the sum to be collected by him. Jbid., § 38. The Collector of taxes, upon the receipt of his warrant as Collector, becomes debtor to the county in the sum which he is authorized to collect, which indebtedness he can discharge in one of two modes only : 1. By producing to the Treasurer of the county a du- plicate receipt of the officer to whom the Collector is di- rected to pay the moneys collected ; or, ; 2. By making his affidavit, that certain taxes remain unpaid, and that, upon diligent inquiry, he has been un- able to discover any property belonging to the person ‘charged with such taxes, whereof he could levy the same. Fake v. Whipple, 39 N. Y. 394. § 568. Form of Collector’s warrant, with instructions. STATE oF NEw York, | me County of Monroe. 4°” To Collector of the Town of in said county: You are hereby commanded to collect from the sev- eral persons named in the assessment roll hereunto annexed, the several sums mentioned in the last column in each page thereof, opposite to their respective names ; and you are hereby authorized, in case any of them shall refuse or neglect to pay such sum or sums, to levy the same by distress and sale of his or her goods and chattels. And you are hereby directed and required out of the moneys so to be collected to pay, To the Commissioners of Highways of the said town, the sum of dollars and cents ; To the Overseers of the Poor of the said town, the sum of dollars and cents ; To the Supervisor of the said town, the sum of dollars andcents ; COLLECTOR’S WARRANT. 467 To the Treasurer of the said County, dollars and cents, the residue of the said moneys so to be col- lected, (exclusive of dog taxes). And you are further commanded to collect, (in the same manner as the said other taxes are directed to be collected,) from the several persons named in the said roll as owning or harboring any dog or bitch, the sums set opposite their respective names, and to pay the same to the Supervisor of the said town,* first retaining there- from a commission of ten per cent. upon all sums so col- lected by you for dog taxes, for your fees. And you are required to make all the payments here- inbefore specified on or before the first day of February next ensuing the date hereof. And for so doing this shall be your warrant. Witness the hands and seals of the Board of Supervis- ors of the County of Monroe, or a majority of them, at the City of Rochester, this day of December, in the year of our Lord, one thousand eight hundred and eighty. INSTRUCTIONS. SECTIONS 29 AND 80 OF CHAPTER 180 OF Laws OF 1845. § 29. (As amended by chap. 96, L. 1876.) Whenever any Town Collector shall have received any warrant for the collection of taxes, he shall immediately thereafter cause notices of the reception thereof to be posted up in five public places in the ward or town, and so located as will be most likely to give notice to the inhabitants thereof, and shall designate in such notices, one or more convenient places in such town, where he will attend from nine o’clock, forenoon, till four o’clock, afternoon, at least three days in each week, for thirty days, which days shall also be specified in such notice, for the pur- pose of receiving payment of taxes; and it shall be the duty of such Collector to attend accordingly, and any person may pay his taxes to such Collector at the time #In counties acting under the Ontario County law this tax is paid to the Supervisors, but in counties acting under the provisions of the Re- vised Statutes the money is to be paid to the County Treasurer. 468 THE Law OF SUPERVISORS. and place so designated, or at any other time or place, on paying one per cent. fees thereon, within thirty days from the first posting of said notices ; and no Collector shall receive over one per cent. fees for receiving or col- lecting any taxes within said thirty days. But every such Collector shall be entitled to receive one cent fees on every amount of tax under one dollar paid in or col- lected within said thirty days, except in cases where it is now otherwise provided by law. § 30. It shall be the duty of the Collector, after the expiration of the said thirty days, to proceed and collect the unpaid taxes in the same manner, and shall pay over or account to the County Treasurer, and shall be entitled to charge, collect and receive the same fees as now pro- vided by law; which said fees shali be collected with such unpaid taxes from the several and respective per- sons named in said tax list. Overseers of Poor . . go Fated ae Ie Commissioner of Highways “ on Delinquent Highway Tax Supervisor a Ge Sais oS Dog Tax : County Treasurer § 569. When Collector does not qualify, Sheriff to act. In case the Collector of any town in this state shall neglect or refuse to execute his bond as required by law, or the Supervisor of the town shall refuse or neglect to appear and file such bond within the time prescribed by law, and if no new Collector shall have been appointed within ten days after the time for filing such bond as re- quired by law has expired, the Board of Supervisors of such county are authorized and empowered to deliver the corrected assessment roll, or a copy thereof, with a war- rant of said Board of Supervisors, or a majority of them, annexed, to the Sheriff of the county, who shall proceed in the collection of said taxes in like manner as Collectors are now authorized by law to do, and with the like pow- ers and subject to the same duties and obligations ; such warrant shall require all payments therein specified to be APPOINTMENT OF COLLECTORS. 469 made by such Sheriff within sixty days after its receipt by him ; and the expenses of such collection, if any, over and above the fees lawfully chargeable by the Collector, to be audited by the Board of Supervisors, shall be a charge on the town. Laws 1857, chap. 585; 2 R. S. (8th ed.) 1123. § 570. Collector to be appointed in certain cases. If any person chosen or appointed to the office of Col- lector of any town or ward in this state, shall refuse to serve, or shall die, resign or remove out of the town or ward, before he shall have entered upon or completed the duties of his office, or shall be disabled from completing the same, by reason of sickness or any other cause, the Supervisor and any two Justices of such town or ward, shall forthwith appoint a Collector for the remainder of the year, who shall give the like security, and be subject to the like duties and penalties, and have the same pow- ers and compensation, as the Collector in whose place he was appointed ; and the Supervisor shall forthwith give notice of such appointment to the County Treasurer. But such appointment shall not exonerate the former Collector or his sureties, from any liability incurred by him or them. 1R. 8. 399, § 11, (2 R. S. [8th ed.] 1118). See notes to § 25. § 571. Collector’s warrant to be delivered to such appointee If a warrant shall have been issued by the Board of Supervisors prior to any appointment under the last section, the original warrant, if the same can be obtained, shall be delivered to the Collector so appointed, and shall be considered as giving him the same powers as if origi- nally issued to him ; butif such warrant cannot be obtained a new one shall be made and by the Clerk of the. Board of Supervisors of the county, which shall be directed to the Collector so appointed. And uponsuch appointment the Supervisor of the town or ward, if he shall think it necessary, may extend the time limited for the collection of the taxes, for a period not exceeding thirty days ; of which extension he shall forthwith give notice to the 470 THE Law OF SUPERVISORS. County Treasurer. 1 R. S. 400, § 12, (2 R. S. [8th ed.] 1118). § 572. Extension of time for collection of taxes—powers of Su- pervisors in relation to. Further powers of local legislation and administration were conferred upon Boards of Supervisors by Laws 1875, chap. 482; and amongst the powers thereby con- firmed is the following : To authorize the County Treasurer to extend the time for the collection of state, county and town taxes, in any town or ward, to a period not beyond the first day of Aprilin any year. But no extension shall be permitted in any case until the Collector or receiver of taxes of the town, city or ward in which such extention shall be asked, shall pay over to the County Treasurer all the taxes collected by him, renew his bond to the Supervisor with such security as the said Supervisor shall approve, and furnish evidence by his oath and such other compe- tent testimony as such Treasurer shall require, that he has been unable, for cause stated, to collect all the taxes within the time required by his warrant. § 1, subdv. 18, 2 R. 8. (Sth ed.) 1039. § 573. County Treasurer may, on certain conditions, extend time of collection of taxes, except state taxes. If any Collector or receiver of taxes, in any town of this state, shall pay over all moneys collected by him, and shall make his return to the Treasurer of the county, as now required by law, of all unpaid taxes on lands of non-residents, and shall renew his bond as herein provid- ed, the said Treasurer, upon the written application of the Supervisor of said town, shall hereafter be empowered to extend the time for collection of all other taxes, and for making return thereof in his discretion, but not later than the first day of May in each year. Such bond shall be renewed with such sureties as in any town shall be approved by the Supervisor thereof, or, in case of his absence or inability to act, by the Town Clerk thereof. The penalty thereof, in any case, shall be double the amount of taxes in that case remaining uncollected. The PROCEEDINGS AGAINST DELINQUENT COLLECTOR. 471 bond shall be approved in writing, and filed in the same manner as the original bond is required by law to be filed, and to have all the effect of the Collector’s or re- ceiver’s bond. A copy of the bond and the approval thereof, shall, before or at the time of making such ex- tension, be delivered to the County Treasurer of the county in which said town is ; but nothing herein con- tained shall be construed as extending the time for the payment of the state tax, or any part thereof, by the County Treasurer of said county, to the Comptroller, as now provided by law. Receivers of taxes, who have filed their bond in accordance with the statutes authorizing the election of such receivers of taxes, shall not be re- quired to renew their bonds. Laws 1885, chap. 10, § 1, as amended by Laws 1885, chap. 32, § 1. $574. Proceedings in case Collector neglects to pay over moneys. If any Collector shall refuse or neglect to pay to the several town officers of his town or to the County Treas- urer, the sums required by his warrant to be paid to them respectively, or either of them, or to account for the same as unpaid, the County Treasurer shall, within twenty days after the time when such payments ought to have been made, issue a warrant under his hand and seal directed to the Sheriff of the county, commanding him to levy such sum as shall remain unpaid and unac- counted for by such Collector, of the goods and chattels, lands and tenements of such Collector, and to pay the same to the County Treasurer, and return such warrant within forty days after the date thereof ; which warrant the County Treasurer shall immediately deliver to the Sheriff of the county ; but no such warrant shall be issued by the County Treasurer for the collection of moneys pay- able to town officers, without proof, by the oath of such town officers, of the refusal or neglect of the Collector to pay the same, or account therefor as above provided. 1B.S. 399, $ 13, (2 B.S. [8th ed.] 1119). The requirement of this section that the County Treas- urer issue his warrant in twenty daysis directory merely, 472 Toe LAW OF SUPERVISORS. and the issue of such warrant after the expiration of that time is valid as the foundation of an action against the Collector’s sureties. Looney v. Hughes, 26 N. Y. 514. § 575. Duty of Sheriff on warrant against Collector. The Sheriff to whom such warrant is directed, shall immediately cause the same to be executed, and shall make return thereof to the County Treasurer, within the time therein specified, and shall pay to him the money levied by virtue thereof, deducting for his fees the same compensation that the Collector would have been entitled to retain. Such part of the moneys collected, if any, as ought to have been paid by the Collector to town officers, shall be paid by the County Treasurer to the officers to whom the Collector was directed to pay the same ; but if the whole amount of moneys due from the Collector, shal! not be collected in such warrant, the County Treasurer shall first retain the amount which ought to have been paid to him before making any payment to the town of- ficers 1R. S. 399, § 14, (2 RB. S. [Sth ed.] 1119). § 576. Sherift’s return and notice to Supervisor. If the whole sum due from the Collector shall be col- lected, the Sheriff shall so state in his return, but if a part only, or if no part of such sum shall be collected, the Sheriff shall state in his return the amount levied, if any, exclusive of his fees, and shall also certify that such Collector has no goods or chattels, lands or tenements, in his county, from which the moneys, or the residue there- of, as the case may be, could be levied ; and in either case the County Treasurer shall forthwith give notice to the Supervisor of the town or ward, of the amount due from such Collector. Ibid., § 15. § 577. Supervisor shall sue Collector’s bond. The Supervisor shall forthwith cause the bond of such Collector to be put in suit, and shall be entitled to recover thereon the sum due from such Collector, with costs of suit ; and the money recovered shall be applied and paid by the Supervisor, in the same manner in which it was the duty of the Collector to have applied and paid the same. JIbid., 401, § 16. COLLECTION OF TAXES. 473: § 578. School taxes, proceedings when not collected. When the Collector shall make return, under oath, that certain parts of the school tax remains uncollected, the Trustees shall present such return to the County Treas- urer, who shall pay such taxes out of the contingent fund, and in case there is no such fund, then the Board of Su- pervisors shall levy the amount of such uncollected taxes, with seven per cent. upon the property, etc., that was. delinquent ; and when such taxes are collected they shall be paid over to the County Treasurer. Laws 1864, chap. 555, T. 7, §§ 75 to 79, as amended by Laws 1883, chap. 950 and Laws 1880, ch. 455. § 579. Assessment for uncommuted highway labor and non- resident tax. Every Overseer of Highways shall, on or before the first day of October in each year, make out and deliver to the Supervisor of his town a list of all resident land- holders residing in his district, who have not worked out. their highway assessment or commuted for the same with the number of days not worked or commuted for by each resident of his district, charging for each day in such list, at the rate of one dollar'and fifty cents per day; and also a list of all the lands of non-residents and of persons unknown, which were assessed on his warrant ‘by the Commissioner of Highways or added by him according to law, on which the labor assessed has not been performed or commuted for; and the number of days labor unpaid by each, charging for the same at the rate of one dollar and fifty cents per day; which list shall be accompanied by the affidavit of the Overseer, duly certified, that he has given the notice required by the thirty-second, thirty-third and thirty- fourth sections of this title, and that the labor for which such residents and such land is returned, has not been performed or commuted. 1R. 8. 511, § 47, as amended by Laws 1870, chap. 461; 2 R. 8. (8th ed.) 1369. § 580. Form for such return. To the Supervisor of the Town of Amherst, County of Erie : 474 Tur LAW OF SUPERVISORS. The following is a list of all the resident land-owners residing in district No. 3 in the Town of Amherst, Erie County, who have not worked out their highway assess- ment, or commuted for the same, together with the num- ber of days not worked or commuted for by each, at the rate of one dollar and fifty cents for each day : Names. No. of days. Amount James Johnston, . .... .. 6 $9.00 ThomasGreenman, . . 4 6.00 The following is a list of all ‘the lands of non-residents and of persons unknown, which were assessed on my war- rant by the Commissioners of Highways, or were added by me according to law, on which the labor has not been paid, and the amount of labor performed or commuted for and the number of day’s labor unpaid by each at one dollar and fifty cents for each day : Description of lands. Assessed value. No. days. Amount, S. E. pt. Lot 10, R. 5, T. 7, 50 acres, $500 5 $7.50 Dated Sept. 23, 1887. JOHN MOCHEL, Overseer of District No. 3. Affidavit attached to same. County oF ERIE, : Town of Amherst, a John Mochel, being duly sworn, says that he is Over- seer of Highways of road district No. 3 in the Town of Amherst in the County of Erie, and that he has given the notices required by the thirty-second, thirty-third and thirty-fourth sections of title one, chapter sixteen of part first of the Revised Statutes, and that the labor for which such persons and lands are returned has not been per- formed or commuted for. JOHN MOCHEL. Subscribed and sworn to before me this 24th day of September, 1887. \ Martin HocuaDEt, Justice of the Peace. The names of non-residents should not be given, but the names of residents should be given. Losses BY CoLLectors, Etc. 475 § 581. Supervisors to lay such lists before the Board. It shall be the duty of the Supervisors of the several towns, to receive the lists of the Overseers of Highways, when delivered pursuant to the preceding forty-seventh section, and to lay the same before the Board of Super- visors of the county. 1R. 8. 511, § 49, QR. 8S. [8th. ed.] 1369). § =82. Such arrearages, how collected. It shall be the duty of each Board of Supervisors at their annual meeting in each year, to cause the amount of such arrearages for highway labor returned to them severally as provided in the preceding section, estimating each day’s labor at one dollar and fifty cents a day, to be levied and collected from the real or personal estate of the person, corporation or non-resident real estate from which said arrearages of highway labor may remain un- paid, and to be collected by the Collector of the several towns in the same manner that other taxes are collected, and order the same when collected by said Collector to be paid over to the Commissioners of Highways of the town wherein the same is collected, to be by them applied to- ward the construction, repairs and improvement of the roads and bridges in the district in which the labor was originally assessed. 1 R.S. 511, § 50, as amended by Laws 1877, chap. 197; 2 R. S. (8th ed.) 1369. § 583. Losses by defaults of Collectors and County Treasur- ers—Supervisors to levy same, etc. All losses which may be sustained and any deficiencies which may exist by reason of the default of the Collect- or of any town or ward, shall be chargeable on such town or ward. All losses which may be sustained and any deficiencies which may exist by the default of the Treasurer of any county, inthe discharge of the duties imposed by law, shall be chargeable to such county, and any judgment heretofore obtained or which shall here- after be obtained against such Treasurer for any such de- ficiency on account of the state tax, and where an ‘exe- cution shall have been issued thereon and returned un- satisfied, shall be conclusive as to the fact of such loss or deficiency, and shall thereupon become a charge 476 THE Law OF SUPERVISORS. against such county, and the several Boards of Super- visors shall add such losses or deficiencies to the next year’s taxes of such town or county, and shall proceed to levy the same as other charges against said county or town are levied. Laws 1855, chap. 427, § 25, as amended by Laws 1866, chap. 528 ; 2 R. S. (Sth ed.) 1133. Alllosses which may be sustained by the default of the. Collector of any town or ward shall be chargeable on such town or ward. All losses which may be sustained by the default of the Treasurer of any county, in the discharge of the duties imposed by this chapter, shall be chargeable on such county. And the several Boards of Supervisors shall add such losses to the next year’s taxes of such townor county. 1 R. S. 419, §5, (2 R. S. [8th ed.] 1160). In case of the failure or neglect of the County Treas- urer to pay over the taxes due the state, (Laws 1863, chap. 393, § 5,) or to render an account thereof to the Comptroller, it is not until the remedy against him and against his bail has been exhausted and the loss by reason of that default has been thus ascertained, that the county is required to act or any duty is attached to it. First National Bank v. Supervisors of Saratoga Co., 106 N. Y. 488. Money which has come to the hands of a County Treasurer froma state tax cannot be said to be lost while an action therefor against the sureties on his official bond is pending—execution against the property of the Treas- urer having been returned unsatisfied. People v. Super- visors of Livingston Co., 17 N. Y. 486. Until a loss has been actually sustained by the default of a County Treasurer to pay over the proceeds of a state tax, the Board of Supervisors is not required by the statute to levy a new tax for the sum retained by him. Ibid. § 584. County Treasurer’s neglect to pay state tax—proceed- ings thereof. It is the duty of the several County Treasurers of this state, on or before the first day of April in each year, to PROCEEDINGS AGAINST DELINQUENT TREASURER. 477 pay to the Treasurer of the state the amount of state tax raised and payed over to them respectively, they retain- ing the compensation to which they may be entitled ; but in case any County Treasurer shall not pay over the said state tax, as here directed, the Comptroller shall charge on all sums withheld, such rate of interest as shall be sufficient to repay all expenditures incurred by the state in borrowing money equivalent to the amount so withheld, and such additional rate as he shall deem proper, not exceeding ten per cent. per year, from the first day of April in each year, and he may collect such interest from such defaulting County Treasurers by suit. Laws 1863, chap. 393, § 5; 2 R. S. (8th ed.) 1059. His account with Comptroller. The Comptroller shall state the accounts of the several County Treasurers on the first day of May in every year, and whenever any part of a state tax shall appear to be unpaid by any County Treasurer, the Comptroller shall transmit by mail to such County Treasurer, a copy of his account, requiring him to pay the balance within thirty days. Laws 1855, chap. 427, $11; 2 R. S. (8th ed.) 1131. Suits for neglect to pay. If the County Treasurer shall refuse or neglect to pay such balance within such time, the Comptroller shall forthwith (unJess he shall be satisfied by due proof that such Treasurer has not received such balance, and has taken all proper steps to collect the same, ) deliver a copy of such County Treasurer’s account to the Attorney-General, who shall prosecute forthwith ; and the state shall be entitled to recover the balance due, with interest thereon, from the first day of May in the year when the same ought to have been paid. Jbid., § 12. Suit on Treasurer’s bond by Supervisors. The Comp- troller may also, in his discretion, direct the Board of Supervisors of the proper county, toinstitute one or more suits on the bond of such Treasurer and his sureties. Tbid., § 13. Such suits when to be discontinued. If the defendants 478 Tue Law OF SUPERVISORS. in any suits to be brought under either of the last two preceding sections, shall at any time before judgment is obtained therein, pay the balance due the state, with interest, into the treasury, or account for the same to the Comptroller, it shall be his duty, on payment of costs of suit, to direct such suits to be discontinued. Laws 1855, chap. 427, § 14. § 585. Comptroller to furnish Supervisors with statements of arrearages. It shall be the duty of the Comptroller, on or before the first Tuesday in October, in every year, to furnish the Board of Supervisors of the several counties, from which returns of arrears of taxes shall have been received at his office, with statements of the sums paid out of the state treasury to their respective County Treasurers, on account of such arrears during the year preceding. Jbid., § 15. § 586. Comptroller’s statement of rejected taxes. The Comptroller shall, on or before the first day of September in each year, transmit by mail or otherwise, to each County Treasurer, a transcript of the taxes of the preceding year, assessed in any town or ward in such county, which shall have been rejected by him for any cause whatever, stating therein the cause of such rejec- tion. Jbid., § 16, as amended by Laws 1878, chap. 152, § 2. § 587. Comptroller to cancel taxes on lands imperfectly de- scribed. Whenever the Comptroller, after having transmitted such annual transcript, shall discover that any taxes cred- ited to a county in the, books of his office are erroneous, or that they have been assessed on land erroneously de- scribed, or so imperfectly described that they cannot in his opinion, be located with certainty, he shall cancel such taxes on the books of his office and charge them to the county in which such lands shall lie, with the interest thereon from the first day of March in the year follow- ing that in which the taxes were laid, to the first day of February next after such cancellation. Ibid., 8 17, as amended by Laws 1878, ch. 152, § 2. Mars AND SURVEYS FOR COMPTROLLER. 479 § 588. Transcript of such taxes to be delivered to Supervis- ors. The Comptroller shall also transmit by mail or other- wise, a transcript of the returns of such taxes, with the additions of such interest, to the proper County Treasurer, who shall deliver the same to the Supervisor of the town or ward in which such taxes were assessed, by whom it shall be delivered to the Board of Supervisors at their next meeting. If the town or ward in which taxes were originally assessed shall have been divided since such assessment, the County Treasurer shall deliver such transcript to the Board of Supervisors at their next meet- ing. Laws 1855, chap. 427, § 18, as amended by Laws 1878, ch. 152, § 2. § 589. Description of lands to be made. Whenever the Comptroller shall have rejected any tax in the first instance, or have cancelled and charged the same to acounty to which it had previously been credited, the Supervisor of the town or ward in which such lands are situate, shall, if in his power, add to the assessment roll of such town or ward for the year during which such transcript shall have been forwarded by the Comptroller to the County Treasurer, an accurate discription of such lands and the correct amount of tax as thereon, stating the tax of each year, and each kind of tax, separately ; and shall furnish the Comptroller with all such maps and surveys of such lands as shall have been required by him: and, if necessary, he may cause a survey and map of each lot or parcel returned for more perfect description, to be made, and the expense of such survey and map shall be a charge upon such land, to be added to the tax there- on; and the Board of Supervisors shall direct the collec- tion of such taxes and expenses so added to such assess- ment roll, and they shall for all the purposes of this act, be considered as the taxes of the year in which the de- scription shall be perfected. If the Supervisor of such town or ward shall not have fully complied with the requirements of this section, the Comptroller shall not thereafter admit, but shall reject all such re-assessed, cancelled or rejected taxes as may be returned to him. 480 Tue LAw OF SUPERVISORS. Laws 1855, chap. 427, § 19, as amended by Laws 1878, ch. 152, § 2. § 590. If not made, tax to be assessed upon town. If the correct amount of such taxes and an accurate description of such lands shall not have been added by such Supervisor, to the assessment roll of his town or ward for the year during which such transcript shall have been forwarded by the Comptroller to the County Treasurer, the Board of Supervisors shall cause such arrears of taxes and the interest thereon, to be levied on the valuations of the estates, real and personal, of the town or ward in which such taxes were originally assessed, and shall direct the same to be collected with the other taxes of the same year. Jbid., § 20, as amended by Laws 1878, chap. 152, § 2. § 591. How assessed in case of division of town. If the town or ward in which such taxes were originally assessed shall have been divided since such assessment, then such taxes and interest shall be apportioned by the Board of Supervisors among the towns and wards included in the limits of such original towns and wards, in such equitable manner as they may deem proper. lbid., § 21, as amended by Laws 1878, ch. 152, § 2. §$ 592. Comptroller to cancel taxes previously paid. ‘Whenever it shall be made to appear to the Comp- troller that any tax returned as unpaid was, previously to such return, paid tothe Collector or County Treas- urer, the Comptroller shall cancel such tax on the books of his office ; and if the sum shall also have been paid into the state treasury, he shall cause it to be repaid out of the treasury to the person by whom such pay- ment shall have been made. Taxes in certain cases to be relevied and collected. Whenever any unpaid tax, levied upon an assessment of land by a town or ward having a legal right to assess the same, which may have been returned to and ad- mitted by the Comptroller, shall be ascertained, either before or after sale thereof, to be illegal or void by rea- Re-Levying CANCELLED TAXES. 481 son of any irregularity or defect in, or omission of statutory requirements for creating or collecting such tax, the Comptroller is hereby empowered and directed whenever deemed practicable by him, to re-levy the cor- rect amount of such tax and add thereto the five per cent. allowed by law to be added by the Collector ; which ag- gregate amount of tax and charge, with interest thereon at ten per cent. perannum from the first day of August following the admission of such illegal or void tax, shall thereupon be due and payable, and shall be subject to existing provisions of law governing the collection of and sale for unpaid taxes by the Comptroiler, but no tax / arising. from a double assessment, the taxes levied on one of which shall be satisfactorily proven to the Comptroller to have been duly paid, shall be subject to such re-levy. Such re-levy of any invalid or defective tax shall be conclusive evidence of its regularity and legality, and any such tax, so relevied, shall be treated and subject to payment as though such sale had not been made, and, if allowed to remain unpaid, the land shall be sold there- for. Laws 1855, chap. 427, § 22, as amended by Laws 1885, chap. 453, § 2. The provisions of this section do not apply to the Counties of Cattaraugus and Chautauqua.’ Laws 1885, chap. 453, § 5. § 593. Account to be transmitted to Supervisors. Whenever any tax shall be so cancelled by the Comp- troller, he shall. transmit an account thereof to the Treasurer of the proper county, who shall cause the same to be laid before the Board of Supervisors thereof, and the amount of such tax with the interest shall be col- lected by them of the Collector or County Treasurer, who made such erroneous returns, and be paid into the treasury of this state. Ibid., § 28. § 594. Comptroller may require correct returns. If, in consequence of having received irregular and imperfect descriptions of the lands of non-residents in any town, the Comptroller shall apprehend that irregular or imperfect returns may again be received, he may give 81 482 THE Law OF SUPERVISORS. notice of such apprehension to the Board of Supervisors of the proper county, at their annual meeting, specifying the several towns in such county, the returns from which will probably require correction. 1 R.S. 419, §7; (2 B.S. [8th ed.} 1160.) § 595. Duty of Supervisors thereon. It shall be the duty of such Board of Supervisors to require the Assessors and the Collector of such town specified in the notice of the Comptroller, to meet in such town and such place as shall be designated by the Supervisors, within thirty days of the expiration of the time when the Collectcrs are to make their returns to the County Treasurers. IJbid., 420, §8; 2B. S. (8th ed.) 1161. § 596. Maps to be furnished Comptroller by Supervisers, Whenever the Comptroller, preparatory to a sale of lands for taxes, shall deem it necessary, in order to test the correct- ness of the descriptions thereof, he may apply to the Board of Supervisors of any county, for maps of any tracts of land charged with taxes, and returned from such county. And the Board of Supervisors to whom such application shall be made, shall furnish such maps at the expense of the county, if they can be procured, and if not, they shall furnish such descriptions of the lands as they can obtain, with a statement of the quantity of each subdivision, if the same be divided. Laws 1855, chap. 427, $48, as amended by Laws 1881, chap. 402, §1; 2 R.S. (8th ed. ) 1136. § 597. When sale invalid, purchase money to be returned. Whenever the Comptroller shall discover, prior to the con- veyance of any lands sold for taxes, that the sale was for any cause whatever, invalid or ineffectual, to give title to the lands sold, the lands so improperly sold shall not be conveyed, but the Comptroller shall cancel the sale, and forthwith cause the purchase money and interest thereon to be refunded out of the state treasury to the purchaser, his representatives or assigns. IJbid., $83; 2 R. 8S. (Sth ed.) 1143. The sufficiency of the evidence upon which the Comptroller based his decisions as to who was entitled to receive the pur- chase money paid upon an invalid tax-sale of lands, which he is required to refund out of the state treasury, cannot be reviewed, nor such decision, if wrong, be corrected by mandamus. People v. Chapin, 104 N. Y. 96. ReEFuNDING MoNEY on ILLEGAL Tax SALES. 483 The mere recor] of a deed from the purchaser at an invalid tax-sale is not notice to the Comptroller of the right of the grantee to have the purchase-money refunded to him. Ibid. This statute was intended to relieve the purchaser from the consequences of. a defective tax title: the owner of the land is not properly a party to the proceedings, nor is he permitted in this way to test the validity of the sale. People v. Chapin, 104 N. Y. 369. And where the owner of the land presented his petition to the Comptroller, asking that the sale be cancelled in pursuance of this section, and his petition was denied, it was held that he could not review such decision on certiorari. Ibid. Where the Comptroller has acted upon an application to vacate a tax-sale, and has denied the same, he cannot be requirec by mandamus to reach a different conclusion. Peo- ple v. Chapin, 103 N. Y. 635. § 598. Error to be charged to the county whence the tax was returned. li the error originated with the county or town officers the sum so paid shall be a charge against the county from which the tax was returned, and the Board of Supervisors shall cause the same to be assessed, levied, collected and paid to the Treasurer of the state. Laws 1855, chap. 427, § 84; 2 R. S. (8th ed.) 1143. § 599. After conveyance, sale to be cancelled and money re- turned. If the discovery that the sale was invalid, shall not be made until after the conveyance shall have been executed for the lands sold, it shall be the duty of Comptroller, on receiving evidence thereof, to cancel the sale, to refund out of the state treasury to the purchaser, his representatives or assigns, the purchase-money and interest thereon, and to re-charge the county from which the tax was returned, with the amount cf purchase-money and interest at the rate of seven per cent. from the time of the sale, and such county shall cause the same to be levied and paid, as provided in the last preceding section. Ibid., § 85. See notes to § 597. Who are the ‘‘ assigns”? under this section. Wherea 484 Toe LAW OF SUPERVISORS. sale was made to Richards, and the deed subsequently cancelled, and he assigned the right to receive the purchase- money paid upon the sale, to Marsh, who subsequently assigned the same to Ostrander, who presented petition to the Comptroller, asking that such moneys and interest be paid to him. It also appeared that Richards had conveyed certain of the lands deeded to him by the state to various persons. It was held that the application was properly «enied as the grantees of Richards were entitled to the purchase-money as his “assigns,” under this section. People v. Chapin, 46 Hun, 383. § 600. When Comptroller to bid in lands at tax-sale. 1. It shall be the duty of the Comptroller at any tax-sale held by him, to bid in for the state all lands liable to sale thereat, then belonging to the state or that are then mort- gaged to the Commissioners, for loaning certain moneys of the United States; and to bid in for each of the counties of the State all other lands liable to be sold thereat, then belong- ing to said counties, respectively, and also all lands which may have been bid in by or for said counties, respectively, at any tax-sale which has pot been cancelled, or from which said lands may not have been duly redeemed ; and to reject any and ali other bids which may be made for any or all of said lands. For certain counties. 2. It shall further be the duty of the Comptroller, at any such sale, to bid in for each of the coun- ties cf Cattaraugus, Chautauqua, Monroe, Oswego, Suffolk and Sullivan, and for all other counties for which there may at the time be special laws authorizing and directing the Treasurer thereof to sell ‘‘lands of non-residents,” for unpaid taxes thereon, and by and under the provisions of which such taxes are not to be returned to the Comptroller, respectively, every lot of land in each of said counties, respectively, liable to be sold at said sale, for which no person shall offer to bid; and to bid in for the state every other lot of land liable to be sold at said sale, for which no person shall so offer to bid. Certificates of sale—sale subject to right of redemption. 3. Certificates of sale for all lands bid in by the Comp- CoMPTROLLER TO Bip IN LANDS AT TAX SALE. 485 troller, under the provisions of subdivisions one and two of this section, shall be made by the Comptroller, which shall describe the lands purchased and specify the time when a deed thereof can be obtained. Such purchases shall be sub- ject to the same right of redemption as purchases by individ- uals ; and if the lands so sold shall not be redeemed, the Comptroller's deed therefor shall have the same effect, and become absolute in the same time and on the performance of the like conditions, as in the case of sales and conveyances to individuals. Amounts to be charged to counties. 4. The Comptroller shall charge to each county, respectively, on the books of his office, the amount for which it may be liable, by reason of any and all purchases made in accordance with the preceding provisions of this section. Such amount shall become due on the last day of each tax sale, respectively, and shall be pay- able in the same manner as the state tax is now required by law to be paid. Comptroller’s certificates to be transmitted to County Treasurer, who may sell the same. 5. The Comptroller shall, as soon as practicable after such tax sale, transmit the certificates of sale for said lands to the Treasurer of each of said countics, respectively, on receipt of which, said Treasurer shall enter the same, in their proper order, in a book to be provided by him for such purpose; and shall have, unless otherwise directed by the Board of Supervisors of this county full power and authority, until the expiration of two years from the last day of said sale, to sell and assign any or all of said certificates for any land not at the time owned by his county, on payment therefor, into the county treasury, of the amount for which the land described thereon was sold at said tax-sale, with interest thereon from the date of' such tax-sale to the date of such sale and assignment by him. Any such sale and assignment shall be duly and fully entered by such County Treasurer in the book aforesaid, which book. shall be a part of the records of the county. Laws 1855, chap. 427, § 66, as amended by Laws 1881, chap. 402, § 5. § 601. Lands to be deeded to Board of Supervisors unless re- deemed. 6. In case said tax-sale certificate or certificates shail not 486 Tue LAW OF SUPERVISORS. have been sold or assigned by the respective Ccunty Treasurers on or before the expiration of two years from the last day of said sale, each of said County Treasurers shall then transmit such unsold certificate or certificates to the Comptroller, who shall issue to the Board of Supervisors of each county, respectively, a deed or deeds for all the lands described there- on, then remaininy unredeemed, or the sale of which has not been cancelled. The title thus acquired by the Boards of Supervisors shal] be held by them in trust for their respect- ive counties, and may be disposed of by them at such times and on such terms as shall be determined on by a majority of such Board at any regular or special meeting thereof. Laws 1855, chap. 427, §66, as amended by Laws 1881, chap. 402, $5; 2R.S. (8th ed.) 1140.* All acts and parts of acts inconsistent with the provisions of this act are hereby repealed. Laws 1881, chap. 402, § 6. § 602. Purchase of scrapers and road machines to be paid for by tax. The Commissioners of Highways, whenever they shall think it necessary or useful, may direct and empower any Overseer of Highways in their respective towns, to procure a good and sufficient iron or steel-shod scraper, road machine, plough, or either of them, for the use of his road district ; or such tools, or any of them, may be purchased, used or cared for, for and on behalf of two or more road districts in any town, jointly, by the Overseers thereof, whenever they shall be empowered to do‘so by the Commissioners of Highways and the Town Board of such town; each district to pay toward the expense thereof, in proportion to the highway tax assessed therein, or the Commissioners may make said purchases for the town at large, such expense to be paid for by a portion of the road tax of such district or town, not exceeding one-half thereof in any one year, and which may be required to be paid in money for such purpose and be assessed and levied upon the property of said district and collected in the same manner as taxes are now so assessed, levied and collected in the town in which such districts are situated, except that the part there- of so required to be paid in money shall be put in a separate * As amended not applicable to Ulster County. Laws 1885, chap. 158, RoapD MACHINES. AST column upon the tax-roll, or the Board of Supervisors of the county in which such town is situated, shall cause such sum as shall be certified by said Town Board to be levied upon the taxable property of said districts. 1 R. S. 504, § 11, as amended by Laws 1886, chap. 344; 2 R. S. (8th ed.) 1349. § 603. Tax to purchase stone crusher. Where the Supervisors under Laws 1884, chap. 220, shall purchase a stone crushing machine, the Board of Supervisors of the county shall cause to be levied and collected by tax in any town having authorized the purchase of a stone crushing machine, in the same manner as other town taxes are levied and collected, such sum as shall be neces- sary to pay for the purchase of the same. Laws 1884, chap. 220, § 4. § 604. To raise money for stone to crush for highways. Whenever any town shall have purchased a machine for crushing stone, by virtue of the provisions of this act, the Town Clerk of such town, on the application of the Com- missioners of Highways, or a majority of them, shall call a special town meeting of the Electors of said town, to vote up- on the question of raising by tax a sum of money—to be specified in said call—not exceeding two thousand dollars in any one year, for the purpose cf purchasing rock or stone, quarrying, breaking, crushing and placing the same on the highways in said town, and to defray the expenses of operat- ing said stone crushing machine: such vote may be taken either at a special town meeting called for that purpose or at any annual town meeting ; in either case the Town Clerk shall give at least eight days’ notice that such vote will be taken, by posting notices thereof in not less than five public places in said town; and the vote, when taken, shall be by ballot, either written or printed, and shall read as follows: “For the appropriation to defray the expenses of supplying and operating the stone crusher ” or ‘‘ Against the appropriation to defray the expenses of supplying and operating the stone crusher.” If a majority of the ballots cast are: “ For the appropriation to defray the expenses of supplying and operat- ing the stone crusher,” the Board of Supervisors of the county shall cause to be levied and collected by tax, in any 488 THE LAW OF SUPERVISORS. town having voted as aforesaid, either at special or annual town meeting, the amount so voted, in the same manner as other town taxes are levied and collected, and the same shall be paid over to the Commissioners of Highways, to be used by them for the purposes aforesaid. Jbid., § 6, as added by Laws 1887, chap. 471. § 605. § 606. 8 607. § 608. § 609. 8 610. § 611. § 612. § 618. § 614. § 615. § 616. § 617. § 618. § 619. § 620. § 621, § 622. § 628. § 624. § 625. § 626. § 627. § 628. g 629. § 680. § 681. § 682. § 638. § 634, § 685. § 636. § 687. 8 688. 8 639, § 640. § 641. § 642, Aupiting Accounts By Town AUDITORS. 489 CHAPTER XVIL OF AUDITING ACCOUNTS BY BOARDS OF TOWN AUDITORS. General principles governing auditing offices, Jurisdiction derived from the statute. When they exceed their jurisdiction. While acting within their jurisdiction. Power to reject accounts. Majority of Board may act. Boards of Audit act judicially. Want of funds. When auditing officers have no discretion. It is their duty to act. Cannot be compelled to re-audit discretionary claim, When vested with discretion. When amount may be fixed by courts. When not concluded by former action. When concluded by judgment. When concluded by former action of Board. When not concluded. Claims which cannot be audited. Claims must be itemized. May reject claim or require proofs. Accounts, how to be presented. Accounts may be amended. Duty in auditing accounts. / Accounts for services, how presented—form, Where compensation is not fixed. Vouchers to be produced. Time of presenting accounts. * Form of accounts with verification. Boards of Audit. Boards of Town Auditors, of whom composed. Boards of Town Auditors under Laws 1875, chap. 188. Boards of Town Auditors under Laws, 1886, chap. 585, Local Boards. ACCOUNTS OF TOWN OFFICERS, Auditors of Supervisor’s accounts. Supervisor to account. Certificate of the state of his accounts. Overseers of Poor and Commissioners of Highways. Town officers to account. 490 § 643, § 644. § 645, § 646, § 647. § 648. $ 649, THE LAW OF SUPERVISORS. Auditors to state accounts. Accounts of Overseer of Poor. Accounts, how audited and settled. Penalty for neglect of Overseer. Relief of the poor under Livingston County Act, with forms, Highway Commissioner’s account, with forms. Auditors to state accounts of town officers, with forms, OF JUSTICE’S AND CONSTABLE’S ACCOUNTS IN CRIMINAL CASES, $650. § 651. § 652. $ 653. 8 654. § 655. § 656. § 657. § 658, § 659. § 660. § 661. $ 662. § 663. § 664. § 665. $ 666. § 667. § 668. § 669. $ 670. § 671. § 672. § 673, 8 674. § 675. § 676. $ 677. § 678 § 679. § 680. Justice's and Constable’s accounts. Appeal from audit of Constable’s accounts. Such appeals where to be taken. Action pending appeal. ‘When to be levied and collected. Justice’s accounts, what to contain. By whom Justice’s accounts to be audited. Justice’s fees in criminal cases. Justice’s fees while holding special sessions, In assault and battery cases. Form of Justice’s accounts. Amending Justice’s accounts. Constable’s fees in criminal cases. Constable’s fees in St. Lawrence County. Constable’s mileage subpoenaing witnesses. In serving subpoenas out of the county. Additional compensation may be allowed Constables. Code of Civil Procedure not applicable. BOARD OF TOWN AUDITORS FOR ACCOUNTS AGAINST TOWNS, Who constitute the Board. Board to meet and audit claims. Notice of their meeting not required. Town charges. Expenses incurred in repairing roads and bridges. Claims for sheep killed by dogs. Board to make certificates of audit, with form. Amount audited to be raised by Supervisors. Auditors to make abstract of accounts, with form, Costs in suits. CANCELLATION OF TOWN BONDS. . Railroad Commissioners to present bonds to Auditors. Cancellation of bonds and coupons. Cancelled bonds, how disposed of. § 681. R. R. commissioners to pay bonds and report. § 682, § 683, § 684. R. R. commissioners to give bonds. Tax to buy bonds or provide sinking fund. Amount, how determined. AUDITING ACCOUNTS—GENERAL PRINCIPLES. 491 § 685. Money raised how disposed of. § 686. Action of Auditors concerning town bonds. § 687. As to gospel and school lots. § 688. May expend excess of excise money. § 689. Powers of town officers. RELIEF OF INDIGENT SOLDIERS, ETC. § 690. Town Auditors to provide funds. § 691. When there is no G. A. R. post in town. § 692. When post assumes charge of relief. § 693. Bond of relief committee. § 694. Indigent soldiers not to be sent to poor-house. § 695. This act practically nugatory. § 696. Boards of Town Auditors under Laws 1875. § 697. Boards of Town Auditors under Laws 1886. § 605. General principles governing auditing officers. There are certain general rules of law applicable to all auditing officers, a thorough understanding of which will enable such officers to more fully understand their jurisdiction and duties and to more readily perform such duties. As auditing officers are, generally, men unfamil- iar with the rules established by the courts, I purpose to briefly call attention to the cases in which such rules have been established as I proceed to state such rules § 606. The jurisdiction of auditing officers is derived from statute. Auditing officers are officers of local and inferior juris- diction. Their jurisdiction or powers to act are prescribed and limited by the statutes: unless they can find warrant in some statute to do an act, they have no authority to do the act. Their authority is not necessarily restricted to the strict letter of the law, because they may perform such duties as come within the plain and necessary im- plication of the law. While they proceed within their jurisdiction as defined in the law, their action is valid, but when they over-step such jurisdiction their action is void. People v. Lawrence, 6 Hill, 244; Supervisors of Richmond Co. v. Ellis, 59 N. Y. 620; People v. Supervisors of Cortland Co., 58 Barb. 139 ; Matter of Tinsley, 90 N. Y. 231. § 607. When they exceed. their jurisdiction Their -action is invalid and creates no obligation upon 492 THe Law OF SUPERVISORS. the town or county, as the case may be. And where the Board of Supervisors audit and allow claims that are not valid charges against the county, the County Treasurer may refuse to pay them and he cannot be compelled to, pay them by mandamus. Peoplev. Lawrence, 6 Hill, 244 ;* Supervisors of Richmond Oo. v. Ellis, 59 N. Y. 620; Has- well v. Mayor, etc., of New York, 81 N. Y. 259. Where a claim not legally chargeable against the county has been audited and paid, an action will lie in behalf of the county to recover back the money paid thereon. Supervisors of Richmond Co. v. Ellis, 59 N. Y. 620. Where one of several items of an account is not a legal charge and it is audited with the other items a mandamus will lie to compel the Board to expunge the illegal item. People v. Supervisors of Westchester, 73 N. Y. 173. But where in the audit the illegal items are so inter- mixed that it is impossible to tell whether the deduction on the whole claim had reference to the illegal items or not, it is proper to set aside the whole audit. Osterhoudt v. Rigney, 98 N. Y. 223. § 608. While acting within their jurisdiction In the auditing of claims legally chargeable against the county the action of the Board in determining the amount of such claim is conclusive upon the county. Supervisors of Onondaga v. Briggs, 2 Denio, 26; People v. Stout, 23 Barb. 338; 8. C. 4 Abb. Pr. 25 ; People v. Stout, 23 Barb. 349; 5. C. 13 How. Pr. 314; 4 Abb. Pr. 22. And an excessive allowance, or an erroneous conclu- sion by the Board upon the facts, does not subject their action to review at the suit of a tax-payer, under Laws 1872, chap. 161. Osterhoudt v. Rigney, 98 N. Y. 222. § 609. Power to reject accounts. The power conferred upon Supervisors to examine, settle and allow all accounts chargeable against a county, involves the right to reject if sufficient reasons, in the opinion of the Supervisors, are not presented for the allow- ance. People v. Supervisors of Dutchess, 9 Wend. 508. Butthey have no right to reject a valid, legal claim ; and AvDITING ACCOUNTS—GENERAL PRINCIPLES. 493 if they do, mandamus will lie to compel them to audit it. People v. Supervisors of New York, 32 N. Y. 478; People v. Supervisors of Otsego Co., 51 N. Y. 408. $610. A majority may act. Where all the officers constituting the Board of Town Auditors have met, a majority of them may decide, and their certificate will be valid although the Supervisor refuses to sign it. People v. Supervisors of Queens Co., 1 Hill, 195. § 611. Boards of Audit act judicially. In the settlement of disputed claims, or in the audit and allowance of county charges, Boards of Audit are regarded as acting judicially where the whole matter is within their jurisdiction. People v. Supervisors of Montgomery Co., 67 N. Y. 114; Chase v. County of Saratoga, 33 Barb. 603; Supervisors of Onondaga v. Briggs, 2 Denio, 26 ; People v. Supervisors of Livingston Co., 26 Barb. 118; Supervisors of Chenango v. Birdsall, 4 Wend. 453 ; People v. Stocking, 50 Barb. 573; People v Stout, 23 zd. 349; People v. Supervisors of Livingston Co. 12 How. Pr. 204. In People v. Supervisors of Broome Co., 65 N. Y. 225, the Commission of Appeals held that they act in a quasi judicial capacity. See also Oster- houdt v. Rigney, 98 N. Y. 222. § 612. The want of funds Is no reason why a Board of Supervisors should not audit a claim chargeable against the county. People v. Supervisors of New York Co., 22 How. Pr. 71, affirming S. C. 21 How. Pr. 322. § 613. When Boards of Audit have no discretion. Where the salary of an officer is fixed by law, the fact that the Supervisors are required to “audit and allow” the accounts of such officers for salaries, does not confer any discretion upon the Board. They must allow the salary as fixed'by law. Morris v. People, 3 Denio, 381 ; People v. Stout, 23 Barb. 338; People v. Supervisors of Cortland Co., 58 Barb.139; S.C. 40 How. Pr. 53; People vy. Supervisors of Dutchess, 9 Wend. 508. 494 Tar LAW OF SUPERVISORS. The same rule holds where the salary or sum is fixed by a binding contract. People v. Supervisors of Cort- land, 58 Barb. 139; S. C. 40 How. Pr. 53; People v. Supervisors of St. Lawrence Co., 30 How. Pa 173. And a Supervisor who votes against auditing such salary is liable to the penalty of $250, prescribed by 1 R. S. 368, § 16, (2 R. S. [8th ed.] 1021), which may be re-— covered of him in an action. Morris v. People, 3 Denio, 381. A public officer is entitled to his salary so long as he possesses the title to the office, and that he may be prevented by illness from performing the duties does not deprive him of his salary. People v. French, 91 N. Y. 265 ; O’Leary v. Board of Education, 93 N. Y. 1. § 614. It is their duty to act. Auditing officers, either for the town or county, be- ing vested with jurisdiction to audit all claims legally chargeable to their town or county, the law imposes the corresponding duty upon them to act ; and if they refuse to act upona valid claim they may be compelled to act by mandamus. People v. Supervisors of Delaware Co., 45 N. Y. 196: People v. Supervisors of New York, 32 N. Y. 473. Upon each item. When an account consists of sever- al distinct items, itis the duty of the auditing officers to pass upon each separate item. People v. Town Auditors of Elmira, 82 N. Y. 80, affirming S. C. 20 Hun, 150. May allow part and reject part. Where the items of an account embrace different services or matters they may allow some of the items and reject others in accord- ance with the facts and the law. People v. Supervisors of Delaware Co., 45 N. Y. 196. Arbitrary reductions not allowed. Where an account consists of several items, each properly chargeable against a town, the Board of Auditors have no right to make an arbitrary reduction from the aggregate amount; and when they do a mandamus will issue to compel them to audit the account correctly. People v. Town Auditors of Elmira, 82 N. Y. 80. AUDITING ACCOUNTS—GENERAL PRINCIPLES. 495 So, where there are distinct and separate items in the account, the Board of Supervisors can no more wholly re- ject or refuse to audit one of those items, which is a le- gal charge, on the ground that it is not legal, than they can reject, for that reason, the whole account, and a man- damus will compel such audit. People v. Supervisorsof Delaware, 45 N. Y. 196. g 615. Cannot be compelled to re-audit discretionary claims. Where a Board of Supervisors have once considered a claim and audited and allowed it at a certain sum, the claim being one where they have the right to exercise a discretion in determining the amount, a mandamus can not issue to compel them to audit the claim anew and allow it at a greater amount. People v. Supervisors of Delaware Co., 45 N. Y. 196. § 616. When auditing officers may exercise discretion. In passing upon claims where no price has been agreed upon, and in auditing claims for legal and other services where no price is fixed by statute and no sum has been determined on as compensation for such services, auditing officers may exercise their discretion in fixing the amount; and where they act in good faith in auditing and allow- ing the same, their action will not be reviewed. People v. Supervisors of Delaware Co., 45 N. Y. 196; People v. Supervisors of Albany Co., 12 Wend. 257 ; People v. City of Kingston, 101 N.Y. 96 ; People v. Supervisor of Otsego Co., 51 N. Y. 407; People v. Supervisors of Dutchess, 9 Wend. 508; People v. Supervisors of Cortland Co., 58 Barb. 139 ; 8. C. 40 How. Pr. 53 ; Chase v. Supervisors of Saratoga, 33 Barb. 603. In all cases where auditing officers are vested with the right to exercise their discretion in determining the amount to be paid, it is a matter of fair dealing that the party presenting the claim should be given an opportu- nity to be heard in his own behalf, and to furnish evi- dence if desired. People v. Supervisors of St. Lawrence Co., 80 How. Pr. 173. Where aclaim is presented for a certain number of days, services at a fixed sum per day, the auditing Board have aright to investigate and determine from the evidence 496 THE LAW OF SUPERVISORS. the number of days service actually rendered, and in receiving evidence and in passing upon its bearing and effect they discharge judicial functions. People v. Su- pervisors of Livingston Co., 12 How. Pr. 204. § 617. When amount may be fixed by courts. Courts have no jurisdiction to determine the amount at which a Board of auditing officers shall allow a claim except in the cases of salaries of officers, etc., where the sum is fixed by law. People v. Green, 64 Barb. 162; People v. Supervisors of New York, 1 Hill, 362. § 618. Auditors not concluded by former action. A Board of Supervisors by auditing and paying part of a claim presented, is not thereby precluded from con- testing the residue of the claim, even upon a principle which would show the former allowance to have been illegal as a claim for extra compensation by an officer whose salary is fixed by law. People v. Supervisors of New York, 1 Hill, 362; Haswell v. Mayor, etc., of New York, 81 N. Y. 255-9. Where the Board audit a claim at a less sum than the claimant, by law, is entitled to have the claim audited at, his receipt of such lesser sum does not estop him from applying for amandamus to compel the Board to audit the claim at the correct amount. People v. Supervisors of Cortland, 58 Barb. 139; S. C. 40 How. Pr. 53. An action would not lie against the county. Chase v. County of Saratoga, 33 Barb. 603. But where the amount of the claim presented is not fixed by law or by contract, and it is audited at a less sum than that claimed, the receipt of such sum will be in full payment of the claim, and will estop claimant from further prosecuting the claim. People v. Supervisors of Queens Co., 33 Hun, 305; People v. Supervisors of Herkimer Co., 3 How. Pr. N. S. 341; Chase v.County of Saratoga, 33 Barb. 603. Auditing officers not concluded. The Board of Super- visors are not concluded by a judgment confessed by a local officer, but they may go behind the judgment and AUDITING ACCOUNTS—GENERAL PRINCIPLES. 497 inquire whether the claim was a legal claim against the county. Gere v. Supervisors of Cayuga Co., 7 How. Pr. 255, § 619. $619. Auditing officers, when concluded by judgment. But where a judgment is recovered in a contested action it is conclusive upon the Board. People v. Super- visors of Delaware Co., 12 How. Pr. 50. § 620. When concluded by former action. Where a claim has been presented to the Board of Supervisors for audit and the same has been allowed and funds provided for its payment, no further auditing is required. Such auditing is conclusive upon the Board and its successors ; and no subsequent Board of Super- visors will be authorized to audit the same a second time. People v. Green, 64 Barb. 162; Osterhoudt v. Rigney, 98 N. Y. 222; Supervisors of Orleans Co. v. Bowen, 4 Lans. 24; People v. Supervisors of Schenectady, 35 Barb. 408 ; Martin v. Supervisors of Greene, 29 N. Y. 645. It is equally true of a claim that has been properly presented, and rejected upon the merits. Osterhoudt v. Rigney,; 98 N. Y. 234. $621. When not concluded. If a claim that is a legal charge against the county is disallowed because not presented in proper form, or because not properly verified or accompanied with proper vouchers, or for any reason not involving a determination upon the merits, the claim has not been adjudicated upon and it is open to the claimant to present it toa subsequent Board. Osterhoudt v. Rigney, 98 N. Y. 234-5. A mistake may be corrected in the same way. Super- visors of Chenango v. Birdsall, 4 Wend. 453; People v. Supervisors of Broome Co., 65 N. Y. 222. A Board of Supervisors may rescind its own acticn in adopting a resolution auditing and allowing a claim against the county. People v. Supervisors of Broome Co., 65 N. Y. 222 ; Osterhoudt v. Rigney, 98 N. Y. 235. § 622. Claims which cannot be audited. Neither the Board of Town Auditors or the Board of 32 498 THe LAW OF SUPERVISORS. Supervisors have any jurisdiction to audit and allow a claim growing out of a tort or wrong. As will be seen further on, when the statutes under which they derive their jurisdiction are referred to, they can audit only such claims as are legal charges against the town or county. McClure v. Supervisors of Niagara Co., 50 Barb. 594; People v. Lawrence, 6 Hill, 244. So, merely equitable claims not based upon some legal right which could be enforced by action at law, can not be audited or allowed. Chemung Canal Bank v. Super- visors of Chemung Co., 5 Denio, 517. There are also claims against a county, which need not be presented for audit. Such, for instance, as a claim to be re-imbursed for a tax collected from a person not legally liable to pay it. An action will lie in such a case against the Board of Supervisors without presentation of the account for audit. Newman v. Supervisors of Liv- ingston Co., £5 N. Y. 676, 689. $623. All accounts when presented must be itemized and sworn to. No accounts shall be audited by any Board of Town Auditors or Supervisors, or Superintendents of the Poor, for any services or disbursements, unless such account shall be made out in items, and accompanied with an affidavit attached to, and to be filed with such account, made by the person presenting or claiming the same, that the items of such account are correct, and that the disbursements and services charged therein have been in fact made or rendered, or necessary to be made or ren- dered at that session of the Board, and stating that no part thereof has been paid or satisfied. And the Chair- man of such Board, or either of said Superintendents, is hereby authorized to administer any oath: required under this section. Laws 1845, chap. 180, § 24, as amended by Laws 1847, chap. 490, §2;1R. S. (8th ed.) 917; §624. May reject claims or require proof. Nothing in the preceding section shall be construed to prevent any such Board from disallowing any account, PRESENTATION OF ACCOUNTS FoR AUDIT. 499 in whole or in part, when so rendered and verified, nor from requiring any other or further evidence of the truth and propriety thereof, as such Board may think proper. Laws 1845, chap. 180, § 25. § 625. Accounts, how to be presented. Before the Board of Supervisors are authorized to allow any account and to direct the raising of money to pay it, it must be presented properly made out and veri- fied. The account must be presented in items, not in gross, and must be accompanied by an affidavit made by the person presenting or claiming the same, stating that the items are correct and that the disbursements and services charged therein have been in fact made or rendered, and that no part thereof has been paid or sat- isfied. Unless accounts are so presented and verified, the Board are prohibited from allowing them as county charges. People v. Supervisors of Monroe Co., 18 Barb. 571. The statute has made it the duty of Supervisors, before allowing any accounts, to see the items, the particular service rendered or goods furnished, and the prices charged therefor, to enable them to judge of the honesty and legality of the transaction and the justness of the amount of compensation claimed. Thisis important information for them, as guardians of the public interest, to possess, because without it a just and intelligent and impartial discharge.of their duties would be impossible. People v. Supervisors of Monroe Co., 18 Barb. 572. When an account has not been presented duly verified the court, on mandamus, will not review the action of the accounting officers rejecting the claim. People v. Super- visors of Delaware Co., 9 Abb. Pr. N. 8. 416. An action will not lis against an officer for not auditing an account that has not been presented, itemized and verified as required by the above statute. Hawley v. McIntyre, 24 Hun, 459. When an account is not properly verified, it should be returned to the claimant and his attention called to the defect, that he may properly verify it. People v. Super- visors of St. Lawrence Co., 30 How. Pr. 173. 500 THe Law OF SUPERVISORS. But where a Board of Supervisors accept and act upon an account containing various items presented to them for audit and allowance, they are estopped from object- ing, subsequently, that the account only was verified and not the items of the account, as required by the statute. People v. Supervisors of St. Lawrence Co., 30 How. Pr. 173. § 626. Amending accounts after presentment. While an account, after presentment to the Board for audit cannot be withdrawn, the claimant has a right to amend it or to file an amended bill; and where the Board refuse to allow an amendment he can apply for a manda- mus and have hisa mendment allowed. People v. Super- visors of Wayne Co., 45 Hun, 62. § 627. Duty in auditing accounts. The duty of a Board of Supervisors in auditing and al- lowing accounts, is, First, To examine and determine whether an account is properly itemized and verified ; Second, To see if it is properly chargeable against the county ; Third, To settle or fix the amount ; Fourth, To allow it as thus settled ; and Fifth, To provide means for its payment. People v. Supervisors of St. Lawrence Co., 30 How. Pr. 173. In auditing accounts by the Town Board the fifth clause is inapplicable. § 628. Accounts for services, how presented. All town and county officers, and all other persons who may present to the Board of Supervisors accounts for their services, to be audited and allowed, shall, before any such account or claim shall be passed upon or al- lowed, exhibit a just and true statement in writing of the nature of the service performed by them. 1 R. 8. 385, $1, (2 R. S. [8th ed.] 1078). Form of amount for services. To the Board of Town Auditors : The undersigned presents the following just and true PRESENTATION OF ACCOUNTS FOR AUDIT. 5OL statement of the nature of the services performed by him, and of the time actually and necessarily devoted to to the performance of such services on which said amount is predicated : THE Town OF WALES. To Henry HonEycome, 1888. Dr. To [here give itemized account]. H. H. Dated March 1, 1888. State oF New York, County of Erie. ie Henry Honeycomb, being duly sworn, says he is the person mentioned as claimant in foregoing account, and that the foregoing is a just and true account of the mat- ters therein set forth. H. H. Sworn to before me this 1st day of March, 1888. L. D., Justice of the Peace. § 629. Where compensation is not fixed. In all cases in which a specific compensation for any service is not provided by law, the officer or person pre- senting an account therefor, shall also exhibit in writing a just and true statement of the time actually and neces- sarily devoted to the performance of such services. 9 R 8 [8th ed.] 1078, § 2. § 630. Vouchersto be produced. On the hearing of claims, either by the Town Auditors or by the Board of Supervisors, the claimant should pro- duce his vouchers, and books of account if they will throw any light upon the subject, as the clearer he establishes his claim the more readily it will be audited and allowed § 631. Time of presenting accounts. Except as to certain counties,—and that will appear in treating of auditing accounts by Boards of Supervisors, — no definite time is fixed when accounts or claims against towns or counties must be presented. The law fixes the time when the Boards of Town Auditors, and when the Board of Supervisors, shall meet to transact the business 502 THE LAw OF SUPERVISORS. of the towns and counties and it is in time to present claims and accounts within the period in which an action would lie. Within that limit claims may be filed in cases against towns, with the Town Clerk, and in cases against counties, with the Clerk of the Board of Supervisors, at any time after they accrue, and they will be acted upon at the next meeting of the Board. § 632. Form of accounts with verification. In preparing claims or accounts to present to a Town Board for audit, if by a person or firm transacting a regular business, use the ordinary bill heads and fill up. the account precisely as you would fill it up in presenting it toa customer to whom you had sold a bill of goods. Whether written on one side or on both sides of the paper is not half so material or important as that it should be written plainly and distinctly and the col- umuns of figures added up correctly. Erasures and inter- lineations excite suspicion, and, although they may be satisfactorily explained, should be avoided as much as possible. Tonawanda, Jan’y 4, 1888. THE Town or TONAWANDA, To CHRISTOPH SCHWINGER, Dr. 1887. Nov. To 100 lbs. beef at 10 cents per pound . $10 00 Dec. To 50 bushels potatoes at 75 cents per bushel s. g-ve we 6 Rw 37 50 1888, . Jan’y 3. To 20 bushels beans at $3 a bushel . . 60 00 $107 50 County or ERIE, Town of Tonawanda. } a Christoph Schwinger, of Tonawanda, N. Y., being duly sworn, says he is the claimant in the above account, and that the items of said account are cor- rect, and that the disbursements and services charged therein have been in fact made or rendered and goods BoarpD oF TOWN AUDITORS. 503 supplied, and that no part thereof has been paid or sat- isfied. C. SCHWINGER. Sworn to before me this 4th day of Jan’v, 1888. J. K. Parton, Justice of the Peace. This form may be varied to correspond with the items of the claims of different persons or firms. There are, however, several cases where special forms are to be used, but those will be pointed out when those subjects are treated of. 'g 633. Boards of Audit for auditing accounts. The statutes provide two distinct Boards for auditing and allowing accounts. They are, First, The Board of Town Auditors. Second, The Board of Supervisors. § 634. Boards of Town Auditors, of whom composed—meet- ings of. The Board of Town Auditors for auditing the accounts of Supervisors, consists of the Justices of the Peace (or a majority of them) of the town and the Town Clerk. 1B. 8. 355, $49; 1 B.S. (8th ed.) 907. This Board convenes to audit the Supervisor’s accounts on Tuesday preceding the annual town meeting. The Board of Town Auditors to audit the accounts of Justices of. the Peace and Constables for services in criminal cases, (Laws 1860, chap. 58, as amended by Laws 1866, chap. 832; Laws 1871, chap. 274,) of Commissioners of Highways, Overseers of the Poor and other town officers, (Laws 1863, chap. 172,) con- sists of the Supervisor, the Justices of the Peace (or a majority of them) and the Town Clerk of the town. Laws 1840, chap. 305. 1.8. (8th ed.) 835. For the purpose of auditing accounts this Board of Town Auditors meet on the Tuesday preceding the annual town meeting. This same Board of Town Auditors also meet on Thurs- day preceding the annual meeting of the Board of Super- 504 THe LAW OF SUPERVISORS. visors, at which meeting all accounts against the town other than accounts of town officers, are to be presented for audit and allowance. Laws 1840, chap. 305, as amended by Laws 1844, chap. 288. § 535. Board of Town Auditors under Laws 1875, chap. 180. The Law of 1875 provided for the election of a Board of Town Auditors in the several towns in this state at the annual town meeting and provided for the discharge of the duties devolved upon them. Thelaw proved unsatis- factory ; and the whole state has been exempted from the provisions of that act by various laws subsequently enacted, except the Towns of Ausable, Champlain, Peru and Plattsburgh, in Clinton County, Lenox in Madison ° County, Queensbury, Chester and Caldwell, in Warren County and the County of Essex. As so small a portion of the state is subject to that law it is not deemed advisable to include it here. It ap- pears at the end of this chapter. § 636. Board of Town Auditors under Laws 1886, chap. 585. In 1886 another experiment in creation of Town Boards of Audit wasenacted. Itis wholly permissive and as yet I am not aware that it has been adopted by any town in the state. It appears at the end of this chapter. § 637. Local Boards of Auditors. In cities local Boards of Auditors have been created, consisting of one or more persons ; and in several counties special laws have been enacted as to the manner of au- diting accounts. The rules governing auditing officers are substantially the same under each of these various Boards. Each of these various Boards are creatures of the stat- ute, and their jurisdiction is defined and regulated by those statutes. I have already given the general principles governing auditing officers, as defined by the courts. ACCOUNTS OF TOWN OFFICERS. § 638. Auditors of Supervisor’s accounts. The Justices of the town, or a majority of them, and AUDITING SUPERVISOR’S ACCOUNTS. 505: the Town Clerk, shall, on the Tuesday preceding the an- nual town meeting, in each year, examine and audit the accounts of the Supervisor, for moneys received and dis- bursed by him. The accounts so audited shall be filed in the office of the Town Clerk, as above provided. 1 R. S. 355, § 49; 1 R. 8. (8th ed.) 907. § 639. Supervisor to account. : On the Tuesday preceding the annual town meeting, he shall account with the Justices of the Peace and Town Clerk of the town, for the disbursement of all moneys re- ceived by him. 1R. 8. 349, §4; 1 R. S. (8th ed.) 899. § 640. Certificate of the state of his sccount to be entered. At every such accounting, the Justices and Town Clerk shall enter a certificate in the Supervisor’s book of accounts, showing the state of his accounts at the date of the certificate. If any Supervisor shall neglect to ac- count, or shall render a false account, or shall convert to his own use any moneys or securities which may come to his hands by virtue of his office, proceedings may be com- menced against him in the name of the town of which he is Supervisor, in the Supreme Court, by action or other- wise, by the Justices of the Peace and Town Clerk of said town, to compel him to render such account, or to re- cover any money or property of the town which he has not duly accounted for. Ibid., § 5, as amended by Laws 1866, chap. 534. For the manner of keeping the Supervisor’s accounts in his book and the certificate to be entered therein on such accounting, see ante, §§ 78-80. § 641. Overseers of the Poor and Commissioners of Highways The Town Auditors in the several towns of this state, shall examine the accounts of the Overseers of the Poor and the Commissioners of Highways of such town, for all moneys received and disbursed by them, and shall meet for the purpose of examining the same, annually, in each town of this state, on the Tuesday preceding the annual town meeting to be held in each town. Laws 1863, chap. 172, §1;1 R. 8. (8th ed.) 903. 506 Tue Law OF SUPERVISORS. § 642. Town officers to account. The Commissioners of Highways in each town in this state, and all town officers who receive or disburse any moneys belonging to their respective towns, shall, on the last Tuesday preceding the annual town meeting of their town, account with the board of town officers of such town, for all moneys received and disbursed by them by virtue of their officers. Laws 1863, chap. 172, § 2. § 643. Auditors to state accounts. The said Board of Town Auditors shall make a state- ment of such accounts and append thereto a certificate to be signed by a majority of the Board, showing the state of the accounts of the said Highway Commissioners and other officers atthe date of the certificate ; which statement and certificate shall be filed with the Town Clerk of the town, and be by him produced at the next annual town meeting, and publicly read. Jbzd., § 3. § 644. Accounts of Overseers of the Poor. In those counties where there are no county poor-houses established, the Overseers of the Poor of the respective towns shall enter, in books to be provided at the expense of their towns, an account of all matters transacted by them, relating to their official duties, of all moneys-re- ceived by them, specifying from whom, and on what account ; of all moneys laid out and disbursed by them, to whom, and by what authority, specifying in each case, whether to county poor or to town poor; the names of all persons applying for relief, and ordered to be relieved as aforesaid ; the day and year when they were admitted to have relief ; the weekly or other sums of money allowed for that purpose, and the cause of giv- ing such relief. 2 R. S. 627, § 51, (3 R. S. [8th ed.] 2116). In counties where there are no county poor-houses, and the towns are severally liable for the support of their own poor, moneys raised for the support of the poor are placed in the hands of the Overseer of the Poor, he has absolute control of it, and he may make contracts for the support of such poor. Robbins v. Woolcott, 66 Barb. 63. AUDITING ACCOUNTS OF OVERSEERS OF THE Poor. 507 § 645. How audited and settled. On the Tuesday next preceding the annual town meet- ing of every town, the Overseers of the Poor shall lay the said original books before the Board of Town Auditors, together with a just and true account of all moneys by them received and expended for the use of the poor, and in what manner, together with an account of the earn- ings of the poor persons employed, which account shall be verified by the oaths of the Overseers, and shall be filed with the Town Clerk. The Board of Town Auditors shall compare the said account with the entries in the poor books aforesaid, shall examine the vouchers in sup- port thereof, and shall audit and settle the same, and state the balance due from such Overseers, or to them, as the case may be. No credit shall be allowed to any Over- seer for moneys paid, unless it shall appear that such payment was made pursuant to a legal order. 2 R. 5. 627, $522 (3B. 8. [8th ed.] 2116). § 646. Penalty for neglect of Overseer. Every person who, having been an Overseer of the Poor, shall refuse or neglect to present such original books or to exhibit such accounts to the Board of Town Auditors, as required in the last section, shall forfeit the sum of two hundred and fifty dollars, to be recovered by and in the name of the Overseers of the Poor of such town. Ibid., § 53. &% 647. Relief of the poor in Livingston County. Laws 1845, chap. 334. An act in relation to the tem- porary relief of the poor in the County of Livingston, and such other counties as may adopt the provisions of this act. Towns in which persons relieved reside, to pay expenses. 8 1. The expenses which shall be incurred in the relief or support of indigent persons entitled thereto by law, in the County of Livingston, before removing such persons to the county poor-house of such county, pursuant to the provisions of the Revised Statutes for the relief and sup- port of indigent persons, including the charges of Over- 508 Tue LAW OF SUPERVISORS. seers of the Poor for services rendered in providing for such relief and support, (but not the expense of such removal,) shall be a charge upon the towns in which the persons so relieved or supported shall respectively be. Overseers of the Poor to provide for temporary reliey- § 2. The Overseers of the Poor of said county shall pro. vide for such relief or support, pursuant to the order of a Justice of the Peace, to be obtained in the manner pro- vided by the forty-sixth section of the Revised Statutes above mentioned, except for medical services, to an amount not exceeding five dollars, for which no order shall be required until such persons shall be removed to the county poor-house of such county, or until the necessity for any expenditure shall cease ; and it shall not be necessary to obtain the sanction of a Superintend- ent of the Poor to authorize the expenditure of a greater sum than ten dollars for the relief of any one poor person or family. Provided that such order granted pursuant to this section shall be granted without fee or reward. Entries to be made in books. § 8. The Overseers of the Poor shall keep a book, to be procured at the expense of the town, in which they shall enter the name, age, sex and native country of every poor person who shall be relieved or supported by them, together with a statement of the causes, either direct or indirect, which shall have operated to render such person a pauper so far as the same can be ascertained. They shall also enter in such book a statement of all moneys received by them, when, and from whom, and on what account, received, and of all moneys paid out by them, when and to whom paid, and on what authority. Such book to be laid before Town Auditors. §4. On the Tuesday next preceding the annual town meet- ing in every year, and also on the Thursday next pre- ceding the annual meeting of the Board of Supervisors of such county, in every year, the Overseers of the Poor shall lay the said book before the Board of Town Auditors, together with a just and true account of all moneys UnveEr Livinaston County Poor Law. 509 received and expended by them for the use of the poor, since the last preceding meeting of the said Board of Town Auditors. The said Board of Town Auditors shall compare said account with the entries in the poor book aforesaid, and shall examine the vouchers in support thereof and audit and settle the same, and state the bal- ance due from the Overseers, or to them, as the case may be. The said account shall be filed with the Town Clerk ; and at every annual town meeting the Town Clerk shall produce such poor accounts for the then preceding year, and read the same if required by the meeting. Accounts, how audited. § 5. The accounts of Over- seers of the Poor for their services in affording the relief or support mentioned in this act, shall be audited, certified, Jevied, collected and paid in the manner now provided by law in respect to other town accounts. Town Auditors to report. §6. Atthe annual meeting of the Board of Town Auditors on the Thursday preced- ing the annual meeting of the Board of Supervisors, the said Board of Town Auditors shall make a certificate to be signed by a majority of the Board, specifying the name, age, sex and native country of every person who shall have been relieved or supported by the Overseers of the Poor, during the then preceding year, and stating the causes, either direct or indirect, which shall have operated to render such person a pauper, and the amount of money expended for the use of each and every person so relieved or supported, as allowed by the Board of Auditors, together with the amount allowed to each Overseer for services rendered in relation to the temporary relief of the poor.as aforesaid ; which certificate the Board of Town Auditors shall cause to be delivered to the Superintendent of the Poor of such county, or one of them, onor before the first day of December then next. Estimate to be made for next year. § 7. The Board of Town Auditors shall, also, at their annual meeting men- tioned in the last preceding section, make an estimate, 510 THe LAW OF SUPERVISORS. to be signed by a majority of the Board, of the sum which they shall deem necessary for the temporary relief and support of the poor the ensuing year, and to supply any deficiency in the preceding year, and shall cause the said estimate to be laid before the Board of Supervisors of such county, on the first day of their then next annu- al meeting. The Board of Supervisors shall cause the said sum to be levied and collected in the town where the same was estimated to be necessary, as aforesaid, in the manner now provided by iaw in respect to other town charges, and to be paid tothe Assessors of the Poor of such town. Duty of Supervisors. § 8. It shall be the duty of the Board of Supervisors of such county to examine the ac- counts of the Superintendents of the Poor, and audit the same. EHatending above act to other counties. Whenever the Board of Supervisors of any county in this state, shall by resolution declare their intentions to adopt the pro- visions of the act entitled ‘‘ An act in relation to the tem- porary relief of the poor in the County of Livingston, and such other counties as may adopt the provisions of this act,” passed May 14, 1845, all the provisions of said ac- shall extend and apply to saidcounty. Laws 1846, chap. 245, § 1. New York and Kings excepted. The provisions of the first section of this act shall not apply to the City and County of New York nor to the County of Kings. Jbid., S28: By Laws 1882, chap. 28, the Town of Oswegatchie, St. Lawrence Co., was placed under regulations in regard to caring for its poor ; and still it was competent for the Board of Supervisors in 1883, to adopt the Livingston County act, the effect of which was to extend the pro- visions of that act as to temporary relief, to all the towns of that county, including the Town of Oswegatchie. People v. Supervisors of St. Lawrence Co., 103 N. Y. 541. Unper Livineston County Poor Law. 511 Where the support of the poor is a county charge, an Overseer of the Poor cannot expend a greater sum than $10, in a single case for temporary relief. Gere v. Su- pervisors of Cayuga, 7 How. Pr. 255. Form of account under Livingston Co. act. Account of the Overseer of the Poor of the Town of in the County of of moneys received and ex- pended for temporary relief, together with the name, age, sex, hative country and cause of pauperism as near as the same could be ascertained, of each person relieved or sup- ported by him. Names of poor Native [Cause of being) Date.of order |Am’t expended Perea, Age! Sex. | country. pauper. for relief. _|for each person Julia Green. 40| Female} Ireland Imbecile Jan. 10, 1888 $15.00 Hans Graf_. 53] Male Austria | Intemperance | Feb. 4, 1888 12.00 Leo Julio...... 4 9 Italy |Wagner’smusic| March 3, 1888 26.00 Lili Scalbo....| 23] Female] Spain ‘ Disease April 1, 1888 10.00 Ira Guelph....| 391 Male Canada Heredity May 10, 1888 5.00 Form of Overseer’s Account. : 3 os 2 $ z | 7 3 ‘3 g Se sd] 8 g 8 ae d 8 EE eo | & a 3 os 2 a co Be = S BO S E Sa 93] § 8 & E os ss go) s 3 a q a a8 1888 lief. |$10.00|Jan. 6, 1888/John O’Toole Order M. H, $10.00|Jan. 5| Co. Treas. | Temporary re $ orden Me He the Peace. And slo on {with each jitem, § 648. Highway Commissioner's account. The Commissioners of Highways of each town shall render to the Board of Town Auditors at their annual meeting for auditing the accounts of town officers, an ac- count in writing, stating, 1. The labor assessed and performed in such town ; 2. The sums received by such Commissioners for fines and commutations, and all other moneys received under 512 Ture LAW OF SUPERVISORS. this chapter or from any source, also itemized accounts of all moneys paid out during the year, receipted in full by the respective parties to whom such money was paid ; 3. The improvements which have been made on the roads and bridges in their town during the year imme- diately preceding such report, and an account of the state of such roads and bridges ; and 4. A statement of the improvements necessary to be made on such roads and bridges, and an estimate of the probable expense of making such improvements, beyond what the labor to be assessed in that year will accomplish. 1 R. 8.502, § 3as amended by Laws 1884, chap. 396 ; 2 R. S. (8th ed.) 1318. HIGHWAY COMMISSIONERS’ ANNUAL ACCOUNT. The undersigned, Commissioners of the Town of Wheatfield, in the County of Niagara, hereby render to the Board of Town Auditors of said town their annual account for the year ending March 1, 1888. The highway labor assessed in said town for the year ending on the ist day of March, 1888, was five hundred thirty days’, and four hundred days’ labor were performed in said town during said year, as is shown by the accounts rendered to us by the several Overseers of High- ways in said town. Said Commissioners have received during said year the following sums of money for fines and commutations under the statute relative to highways, viz.: Date. From whom received. On what account. Amount. 1887. * June 1 Lewis Sweedlepipes Fine $2.00 we James Stuckelback Commutation 5.00 And _ continue|with other items. HigHway COMMISSIONERS’ ACCOUNTS. 5138 They have also received from other sources under said statute, the following sums : Date. From whom received. On what account. Amount, The following in an itemized account of all the moneys . paid out during the year, receipted in full by the respective parties to whom such moneys were paid, as shown by the accompanying vouchers : Date. To whom paid. On what acc’t./No. of voucher. Amount. ‘Set forth items jaccording to facts. The improvements which have heen made in the roads and bridges in said town, during said year, are as follows : (Here specify improvements made.) And the roads and bridges in said town are in good repair, (or according to the facts.) The following is a statement of the improvements necessary to be made on such roads and bridges in said town, viz.: (Give statement of what is needed.) The probable expense of making such improvements beyond what the labor to be assessed in this year will accomplish is by us estimated at $800, 00. Dated March 3, 1888. Names of Commissioners of Highways. $649. Auditors to state accounts of town officers. It is provided by section three, chap. 172, of Laws of 1863, that the Board of Town Auditors shall make a statement of such accounts, and append thereto a cer- tificate, to be signed by a majority of the Board, stating the state of the accounts of the said Highway Commis- gioners and other officers, at the date of the certificate, which statement and certificate shall be filed with the . 514 THe Law OF SUPERVISORS. Town Clerk of the town and be by him produced at the next annual town meeting and publicly read. A similar provision is contained in the Revised Statutes as to Supervisor’s accounts on his accounting with the Justices of the Peace and Town Clerk, but in his case the certificate is entered in the Supervisor’s book. 1 R. S. 349, § 5, as amended by Laws 1866, chap. 534, 1 R. 8. (8th ed.) 908. The following is a form for settlement of Supervisor’s account : Auditor’s Certificate. County oF ERIE, | .. Town of Lancaster. } “"" The undersigned, constituting the Board of Town Auditors of said town, for the audit of the Supervisor’s accounts, do hereby certify that we have this day fully examined the above (or within) account of Nathan B. Gatchell, Supervisor of said town, and the vouchers ac- companying the same, and have found the same to be true and correct in all respects, and that the following is a correct statement of his account with the said town at the present time, viz: On hand. From what source. Receipts. Disbursem’ts. Poor Fund) voc -(cesccsset cece sscnuasese $1,000.00 $400.00 $600.00 School moneys...----.------.----.---- 2,500. 2,500.00 Local School Fund eos 300. 50.00) 250.00 Dog Fund........---.0-2---0--eeee noe 150.00 75.00 75.00 $3,950.00) $3,025.00) $925.00 Showing a balance on hand belonging to said town of $925.00. Dated March 6, 1888. L. D., és a Justices of the Peace. J. M., Town Clerk. The accounts of the Supervisor are audited by the Justices of the Peace, or a majority of them, of the town, together with the Town Clerk. The Supervisor cannot sit in auditing his own accounts. Hence the certificate of audit is signed by the auditing officers only. JUSTICES’ AND CONSTABLES’ ACCOUNTS. 515 Form of audit of Highway Commissioner’s account. County oF NIaGARa, \ Town of Royalton. a We, the undersigned, composing the Board of Town Auditors of said town, do hereby certify, that we have this day audited and allowed to William G. Richardson, Commissioner of Highways of said town, by whom the foregoing account has been presented to us, the sum of $60, as and for his services as such Commissioner, and the disbursements necessarily paid out by him in the per- formance of his duty up to and including March 6, 1888, and that we find a balance of $25 to be due from said William G. Richardson as such Commissioner to the Town of Royalton. Dated March 6, 1888. A. B. Supervisor. } Justices of the Peace. _ Town Clerk. In a similar manner with other town officers. OF JUSTICES’ AND CONSTABLES’ ACCOUNTS IN CRIMINAL CASES. §650. Justices’ of the Peace and Constables’ accounts. The Board of Town Auditors of the several towns, in addition to the authority now vested in such Boards, shall have the power and it shall be their duty at their annual meeting to audit the accounts of the Justices of the Peace and Constables for fees in criminal cases, which are by law chargeable to any such town, and the amount thereof shall be included in their certificate and assessed by the Board of Supervisors of the county upon such town, in the same manner as other town charges are now assessed. and collected. Laws 1860, chap. 58, § 1, as amended by Laws 1866, chap. 832, §1; 1 R. 8. (8th ed.) 907. All acts and parts of acts inconsistent with this act are hereby repealed. Ibid., § 2. § 651. Appeal lies from audit of Constables’ accounts. In every case where any account of.a Justice of the Peace or Town Constable, for fees in criminal cases, is audited by a Board of Town Auditors of any town, any 516 THE LAW OF SUPERVISORS. tax payer of said town may appeal from such auditing and allowance to the Board of Supervisors of the county, and such Board of Supervisors shall thereupon have power to audit and allow such bill; and in case any such account shall be disallowed or the amount thereof reduced, the party presenting the same shall have the same right of appeal as above provided. Laws 1866, chap. 832, § 2; 1R. 8. (8th ed.) 908. In so far as accounts of Justices of the Peace are con- cerned, see §§ 655, 660, post. § 652. Such appeals when to be taken. Such appeals shall be taken within five days after the - allowance or disallowance of a bill by such Town Audit- ors, in whole or in part, by the service of a notice of appeal in writing, on the Town Clerk, and said Town Clerk shall forthwith thereafter transmit said bill to the Board of Supervisors of said county to be audited and allowed by them, and said Board of Town Auditors shall have no further jurisdiction over any such bill after the service of said notice of appeal. Jbid., § 3. § 653. Action pending appeal. If after service of any notice of appeal, the bill is not transmitted to the Board of Supervisors as herein pro- vided, no part thereof shall be levied or collected. Ibid., 84. § 654. When to be levied and collected. Such part of the town bills audited by the Board of Supervisors after such appeals, as shall be allowed, shall be assessed, levied and collected by the said Board in the same manner as other town charges. JIbid., § 5. § 655. Bills of Justices of the Peace, what to contain. The bills rendered by Justices of the Peace for services in criminal proceedings shall, in all cases, contain the name and residence of the complainant, the offense charged, the action of the Justice on such complaint, the Constable or officer to whom any warrant on such com- plaint was delivered, and whether the person charged was, or was not, arrested, and whether an examination was JUSTICES’ ACCOUNTS IN CRIMINAL CasEs. 517 waived or had, and witnesses sworn thereon; and the account shall also show the final action of the Justice in the premises. Appeals from audit, when and how taken. Atany time within fifteen days after the Board of Town Auditors of any town shall have filed with the Town Clerk thereof the certificate of accounts audited, as required by law, any tax payer of said town may appeal from the action of said Board of Town Auditors, in auditing the account of any Justice of the Peace, to the Board of Supervisors of the county. Said appeal shall be made by serving notice thereof, in writing, on the Town Clerk of the town, and on the Clerk of the Board of Supervisors with- in the time above limited. Supervisors may audit the claim. The said Super- visors shall, thereupon, audit the accounts of such Justices of the Peace, and their decision in the auditing and allowing of said account shall be final. Laws 1869, chap. 855, § 6, as amended by Laws 1871, chap. 274; 3 R, S. (8th ed.) 1032. § 656. By whom are Justice’s accounts to be audited. Under the Revised Statutes, (1 R. S. 366,§ 4; 2R.S. [8th ed.] 1020), jurisdiction was conferred upon Boards of Supervisors to audit the accounts of town officers. Jus- tices of the Peace and Constables are town officers. Hence, Boards of Supervisors had jurisdiction to audit the accounts of Justices of the Peace and Constables in criminal cases. Subsequently by the Act of 1860 (chap. 58) and Laws 1866 (chap. 832) and the amendments thereof above quoted, Boards of Town Auditors were vested with jurisdiction to audit and allow the accounts of Justices of the Peace and Constables for services rendered in criminal cases, and the Boards of Supervisors were vested with an appellate jurisidiction to review on appeal the the action of the Boards of Town Auditors. While it seems quite anomalous that the Boards of Supervisors should possess both original jurisdiction to hear and audit such claim, and that they should also 518 Toe LAW OF SUPERVISORS. be vested with jurisdiction to review on appeal, the action of the Town Auditors, it by no’ means follows from the fact that jurisdiction was conferred upon the Boards of Town Auditors to audit such accounts that thereby the Boards of Supervisors were ousted or deprived of their jurisdiction conferred by the Revised Statutes. On the contrary there is no real inconsistency between the statutes. The later statute merely confers upon another body of officers jurisdiction to do what may also be done by the Boards of Supervisors. In case such accounts are presented to the Board of Town Auditors, an appeal lies to the Board of Supervisors. So that accounts of such officers may be presented for audit to either of these Boards. There is no doubt but what they ought to be presented to the Board of Town Auditors in the first instance ; and such is the current practice in many counties. § 657. Fees of Justices of the Peacein criminal cases. Justices of the Peace in the state shall hereinafter be allowed and entitled to receive the fees hereinafter stated for the following named services in criminal cases: For administering an oath, ten cents; drawing on information, twenty-five cents ; taking a deposition of witness on in- formation, twenty-five cents ; issuing a warrant of arrest, twenty-five cents ; indorsing warrant from another coun- ty, twenty-fivecents; for each day’s necessary attendance upon the hearing or examination of accused, one dollar ; every necessary adjournment of the hearing or exami- nation, twenty-five cents ; warrant of commitment, twen- ty-five cents ; a subpoena, including all the names insert- ed therein, twenty-five cents, and each copy subpcena for service, ten cents ; for filing each paper required by law, five cents ; for furnishing copies of papers in any proceeding, at the rate of five cents per folio of one hun- dred words ; for each order in writing or certificate re- quired by law, twenty-five cents ; drawing an undertak- ing of bail, twenty-five cents; taking an acknowledg- ment, twenty-five cents. Laws 1866, chap. 692, § 3, as amended by Laws 1884, chap. 188. JUSTICES’ ACCOUNTS IN CRIMINAL CASES. 519 §658. Fees of Justices while holding special sessions. For a venire, twenty-five cents ; swearing each wit- ness on the trial, ten cents; swearing a jury, twenty- five cents ; swearing a Constable to attend a jury, ten cents; a subpoena including all the names inserted therein, twenty-five cents ; for a trial fee, one dollar per day during the necessary and actual continuance of the trial; receiving and entering verdict of jury, twenty- five cents ; entering the sentence of the court, twenty-five cents; warrant of commitment on sentence, twenty-five cents; for record of conviction and filing the same, sev- enty-five cents ; but all such charges in any one case shall not exceed five dollars, unless such court continue more than one day ; in such case the costs of such additional day may be added thereto ; for return to any writ of certiorari to be paid by the county, two dollars ; for services when associated with another Justice of the Peace in cases of bastardy, for each day actually and necessarily spent, two dollars. Laws 1866, chap. 692, g 4. § 659. In assault and battery cases. But no Board of Supervisors shall allow any account in favor of any Justice of the Peace, for any warrant on any complaint for an assault and battery. 2 R. S. 749, § 1, as modified by Laws 1866, chap. 692, and Laws 1884, chap. 188. The Law of 1866 (chap. 692, § 3) provided that no Justice of the Peace should be required to issue a warrant for an assault and battery until his fee was paid. The amendment of that section by Laws 1884, chap. 188, omitted that clause. Still, when that clause was in force it did not affect the above provision of the Revised Statutes, which has remained not repealed. § 660. Formfor Justi ce’s accounts. It will have been observed that the statute above quoted points out quite specifically what shall be con- tained in the accounts of Justices of the Peace; in this respect the statute is more definite than in respect to 520 Tue LAW OF SUPERVISORS. other accounts. The following form will be a sufficient. compliance with the statute : THE Town oF AMHERST, To Martin HocHaDEL, Justice of the Peace, residing at Millersport in said town, Dr. 1888, Jany. 12. The People vs. Milten W. Fetterman. Name of complainant, Anna E. Fetterman, who resides at Millers- port, Town of Amherst. Offense charged, was breach of the peace and threatening to com- mit a crime. Upon the information taken and filed I issued a warrant for arrest of defendant. Warrant delivered to Peter Grove, Constable of said town. Jany. 18. Defendant was arrested and brought before me. On being arraigned and the charge read to him he pleaded guilty, whereupon I held him to bail in the penal sum of $500, to keep the peace and abide the order of the next Court of Sessions, etc. Or (When prisoner was brought before Justice, proceed according to. the fact.) Defendant demanded examination, which was had. The follow- ing witnesses were sworn on such examination, viz.: A. B., C. D., E. F. Defendant was discharged (or was fined $10). To administering oath to complainant .......~. = 10 Drawing information . 2. 1. 1. 1 1 ee ee ee eS Filing information . . 2... 1 1 1 ee ew ee BO Taking depositions of witnesses on application for warrant, at .250 2. 6 6 1 1 ew we ee ee For warrant of arrestissued . . . . 120° (But no fee for issuing a warrant for anal id battery shall be allowed. 225 Indorsing warrant from County of Genessee . . . . . «28 Warrant of commitment . . . 1. 6 6. ee ee ee Subpoena... Orhan: G0) 5 copies subpoena tor vi services, ait ten oak aaah cnc: Shy cat cha BS. 32 50 1,685 bush. potatoes, 30c. 490 50 Summer squash. . . . 5 00 160 bush. onions, 7c. . 120 00 | 610 summer Hubbard 85 bush. cucumbers, $1.20 42 00 squash,8c.... . 18 30 95 bush. tomatoes, 35c . 33 25 | 85 loads pumpkins, $1 . 35 00 75 bush. apples, 75c . . 56 25 | Pieplant . ..... 6 00 1,050 bush. carrots, 35c . 367 00 8,925 lbs. beef, 2c . . . 178 50 1,645 bush. beets, 50c. . 822 50 | 16,996 Ibs. pork,6c .°. 971 76 1,585 bush. sweet turnips, 1,645 Ibs. veal,6c . . 98 70 40c .... . . . 635 20] Turkeys, chickens and 720 bush. flat turnips, 25c 180 00 eggs. . . . . + + 20000 75 bush. peas, 50c - . . 37 50 | 29,000 quarts milk, 2c. . 580 00 4,128 bush. oats, 35c . . 394 80 92,000 qts. skim milk, 4c. 460 00 35 bush. beans, $1.50. . 52 50 aS 610 bush. corn, 80c. . . 488 00 eee Live Stock on Hanp.—Cows, 70; steers, 4; oxen, 1 yoke; bulls, 3: horses, 9; calves, 4; hogs, 58 ; pigs, 66 ; sheep and lambs, 14. COMPENSATED SERVICES.—Physician, $800 ; bookkeeper, $480; engi- neer, $480; baker, $300; attendants and teamsters, $7,020.19 ; total, 19. : ae All of which is respectfully submitted, THEO. 8S. COMSTOCK, Superintendent of the Poor. x. 576 THe Law OF SUPERVISORS. The books and vouchers should accompany the report for the inspection of the Board. § 713. Supervisors’ accounts—how made out. The accounts of the members of Boards of Supervisors shall be made out in items and verified as hereinafter provided. Laws1 845, chap. 180, § 22; 1 R. S. (8th ed.) 917. For the ‘‘ hereinafter provided” see § 639. Of course a Supervisor cannot act on a committee in considering, nor vote to audit, his own claim. CouNTY OF ERIE, To Joun H. StonEway, Supervisor of the Town of Grand Island, Dr. 1887. Dec. To amount salary as Supervisor .......-. - § To making one copy assessment roll written lines . . To mileage to and from sessions miles, at Scents . . StTaTE oF NEw YoRK, 6 County of Erie. = John H. Stoneway, being duly sworn, says that the several items charged in the foregoing account are cor- rect, and that the disbursements and services charged therein have been in fact made or rendered, or are neces- sary to be made and rendered at the present session of the Board, and that no part thereof has been paid or satisfied. JOHN H. STONEWAY. Sworn to before me this day of Dec., 1887. Justice of the Peace. The above form is applicable to those counties where the compensation is a fixed salary. In other counties it should be varied to show a per diem of three dollars for each day’s actual attendance. Laws 1886, chap. 63. § 714. Taxation. The expense of publishing the Comptroller’s notices for redemption of lands sold for unpaid taxes is a county charge to be audited and paid by the Board of Supervis- Accounts AGAINST COUNTIES. 577 ors. Laws 1855, chap. 427, §61; 2 R. S. (8th ed.) 1139. When the Comptroller shall require maps to be made to test the accuracy of the description of lands on which taxes remain unpaid preparatory to a sale, they shall be furnished by the Board of Supervisors and the expense thereof is a county charge. Laws 1855, chap. 427, § 48 ; 2R. S. (8th ed.) 1136. The expense of distributing copies of tax-laws, sent by the Comptroller to County Treasurers, is a county charge. 1R. S. 420, §14, (2 R. S. [8th ed.] 1161.) § 715. Form of account against a county. BuFFAaLo, October, 1888. THE County of ERIE, To Baker, CrovucH & Co., Dr. 1888, June 27. To 1000 lbs. corn meal, at 2 cts. $20.00 July 1. *¢ 50 bushels beans, at $2.50. 125.00 July 3. ‘* 8 baskets cherries, at 65 cts, 5.20 “* 64 quarts black raspberries, at 14 cts, 8.96 “1 sack peas 1.75 $160.91 (Verification to be added.) $716. Justices of the Peace, accounts of. The bills rendered by Justices of the Peace for services in criminal proceedings, shall, in all cases, contain the name and residence of the complainant, the offense charged, the action of the Justice on such complaint, the Constable or officer to whom any warrant on such com- plaint was delivered, and whether the person charged was or was not arrested, and whether an examination ‘was waived or had, and witness sworn thereon; and the account shall also show the final action of the Jus. tice in the premises. At any time within fifteen days after the Board of Town Auditors of any town shall have filed with the Town Clerk thereof the certificate of ac counts audited, as required by law, any tax-payer of- said town may appeal from the action of said Board of Town Auditors, in auditing the account of any Justice of the Peace, to the Board of Supervisors of the county. Said appeal shall be made by serving notice thereof, in 37 578 THE LAW OF SUPERVISORS. writing, on the Town Clerk of the town, and on the Clerk of the Board of Supervisors within the time above limited. The said Supervisors shall, thereupon, audit the accounts of such Justices of the Peace, and their decision in the auditing and allowing of said account shall be final. Laws 1869, chap. 855, § 6, as amended by Laws 1871, chap. 274; 2 R. S. (8th ed.) 1032. § 717. Fees in criminal cases, when town and when county charges. All fees and accounts of magistrates and other officers for criminal proceedings, including cases of vagrancy, shall be paid by the several towas or cities wherein the offence shall have been committed, and all accounts ren- dered for such proceedings shall state where such offence was committed, and the Board of Supervisors shall assess such fees and accounts upon the several towns or cities designated by such accounts ; but when any person shall be bound over to the Oyer and Terminer, or Court of Sessions, or committed to jail to await a trial in either of said courts, the costs of the proceedings had before the single magistrate, shall be chargeable upon the towns or cities as aforesaid, and the costs of the proceedings had after the person shall have been so bound over or com- mitted, shall be chargeable to the county ; but nothing herein contained shall apply to cases of felonies, nor where the proceedings or trial for the offence shall be had before any court of Oyer and Terminer or Court of Sessions of the county, and the fines imposed and collect- ed in any such cases shall be credited to said towns or cities respectively. Laws 1845, chap. 180, § 26, as amended by Laws 1847, chap. 455; (1 R. S. (8th ed.) 918. § 718. Justice of the Peace to make report. In connection with the accounts of Justices of the Peace they should be required to present and file with the Clerk of the Board of Supervisors a report as required by Laws 1863, chap. 404, § 1, as amended by Laws 1864, chapter 341. The Board has the undoubted right to refuse to audit his accounts until such report is filed. REPORTS BY JUSTICES OF THE PEACE. 579 Form of report. To the Board of Supervisors of Erie County : November 1, 1888. I, Martin Hochadel, a Justice of the Peace of the Town of Amherst, in the County of Erie, respectfully report to your honorable body that I have not received any money on account of any fine or penalty or other matter in which the County or Erie or said town or city therein has any interest, since the date of my last report, filed on Novem- ber 4, 1887, (or since I became a Justice of the Peace) except as shown below : When received. = Of whom. On what account. Amount. I further report that there is due from me and remain- ing unpaid on account of moneys which I am authorized by law to receive and in which said town or county is interested, the following sums of money and_ none other. From whom due. On what account. Amount. MARTIN HOCHADEL, Justice of the Peace. County oF ERIE, t ae Town of Amherst. . Martin Hochadel, being duly sworn, says that he is the same person mentioned in and who signed the foregoing report : that the statements contained therein are true. MARTIN HOCHADEL. Sworn to before me this 1st day t of November, 1888. Justice of the Peace. , §'719. Justice’s account against county. The following form will be a sufficient compliance with the statute: 580 THE LAW OF SUPERVISORS. Tuer CouNnTY oF ERIE, To Martin HocHapEL, Justice of the Peace, residing at Millersport, in Town of Amherst, in said county, Dr. 1888. Jan’y 12. The People vs. Milton W. Fetterman. Name of complainant, Anna E. Fetterman, who resides at Millers- port in said town. Offence charged, was breach of the peace and threatening to com- mit a crime. Upon the information taken and filed, I issued a warrant for the arrest of defendant. Warrant delivered to Peter Grove, Constable of said town. Jan’y 18. Defendant was arrested and brought before me. On being arraigned and the charge read tv him, he pleaded guilty, whereupon I held him to bail in the penal sum of $500, to keep the peace and abide the order of the next Court of Sessions, etc. Or (When prisoner was brought before the Justice proceed according to the facts), thus : Defendant demanded examination, which washad. The following witnesses were sworn on such examination, viz.: A. B., C. D., E. F. Defendant was discharged (or was fined $ 10.) To administering oath tocomplainant . ... .... ~~ .10 Drawing information . 2 2 16 1 ww ew ww www wo Filing information . 2... 0. 1. ee ew ee ew ww OE Taking deposition of witnesses on application for warrant For warrant of arrestissued . . . . 25 (But no fee for issuing a warrant for aacault and battery shin be allowed. 3 R. S. [?th ed.] 2578, § 1; 3 R.S. [7th ed.] 2584, § 3.) Endorsing warrant from County of Genessee . . . . . . 25 Warrant of commitment . . . . . 1 1 1 ew ew ee oO Subpoena ... ver ee ten et. RO. 5 copies subpoena for si service, at ten gene eich Bele wesc: eel Certificate ‘ ORS oR am eA ee Drawing undertaking ‘oe bail Be See) Ey aki ee ae ee Gama Ree. Taking two acknowledgments thereto .. ..... . ~~ «50 Two days’ attendance on hearing or examination . . . . $2.00 One necessary adjournment -. . . .. 1. 0. ee ee 8 Venireforjury .... Sacien Yisy inn aioites Thea. Coico Swearing 5 witnesses, at ten sent paeh e © ew we ee 2 DO Swearing jury . . 6. 6 1 we ew ee ee we we ee Return toappeal . . . . bie © (In like manner give each item of ‘latin’ ) Totalorclaim «6 «6 a Wee Gwe Swe ew 2b ad ACCOUNTS OF CONSTABLES. 581 STATE oF NEw York, County of Erie. Martin Hochadel, being duly sworn, says he is the claimant named in the foregoing claim; that the items of such account as above set forth are correct and that the services charged therein have been in fact made or rendered, or necessary to be made or rendered, and that no part thereof has been presented to any preceding Board of Supervisors for audit and allowance, and that no part thereof has been paid or satisfied. MARTIN HOCHADEL, Sworn to before me this day of October, 1888. } Justice of the Peace. A Justice of the Peace has the right to amend his ac- count to make it conform to the facts and requirements of the statute even after appeal has been taken from the audit thereof to the Board of Supervisors, and a manda- mus will issue to compel the Board to allow such amendment if application to amend is refused. People yv. Supervisors of Wayne Co., 45 Hun, 62. § 720. Constable’s account. The following form has been held sufficient for Con- stable’s accounts, viz.: THE County or ERIE, To Constable, of the Town of Hamburgh, residing at White’s Corners, in said town, Dr. 1888. Jan’y 10. The People vs. Peter Hackett. To arresting defendant at Collins Centre under warrant issued by Perry Thorn, Justice of the Peace of said Town of Hamburg, for offense of grand larceny committed at White’s Corners, in Town of Hamburg. . . 15 Distance actually and necessarily eavelled to ie said Hack: ett, going from White’s Corners to Collins Centre and return- ing niles, at ten cents a mile g For service of (give name of mandate) on aad: deteidant, a Taking defendant into custody on commitment . . . + 2d To miles travelled in going from White’s Corners to Buf- falo to deliver defendant according to commitment, at ten cents a mile ee ee Taking charge of jury - 6 6 6 6 8 ee ee ees 50 582 Tue Law oF SUPERVISORS. Keeping prisoner in custody three days, at one dollar a day . $3.00 Notifying Samuel M. Jones, complainant, who resides at 25 miles travelled in notifying ere at five cents a mile ‘ Said defendant was disdharoudl fee pointed, or gave bail, as the case may be). Services herein were rendered by direction of the magistrate. (And so on with each different case.) For service of subpaenas. — For service of subpoena issued by Perry Thorn, Justice of the Peace, in the People agst. Peter Highland, charged with grand larceny, com- mitted in town of Hamburg. There were six names in the subpoena; five of the persons named were served as follows : John Smith, at Big Tree Corners, Erie County. ‘William Green, at Colden, Erie County. Harry Blood, at Springville, Erie County. Reuben Gray, at Eden Valley, Erie County. Samuel Lockwood, at Boston Corners, Erie County. 32 miles actually travelled in serving such subpoena on re Blood, going and coming, at five cents a mile As no two of such witnesses resided in the same direction, I was com- pelled to take separate journeys from the Justice’s office to serve such subpoena on each of them. The number of miles actually travelled, go- ing and coming, in serving subpoena on John Smith was 16, on William Green 14, on Reuben Gray 12, on Samuel Lockwood 10. (Note.—This is proper in such a case as the Auditing Board are author- ized to make suitable allowance if deemed a proper case by them, See ante § 666.) Notifying complainant, Samuel M. Scott, who resides at Pot- ter’s Corners . . . 25 miles travel in aodEpe ‘complainant, “at ‘five Contes a mile, going andcoming . . Se eG Gel ie Se (And so on with each different case. ) STATE oF NEW YORK, County of Erie. } Bey 8 being duly sworn, says that the items of the foregoing account are correct and the said account nor any part thereof has been presented to any pre- ceding Board of Supervisors for audit and allowance ; the disbursements and services charged therein have been in fact maJe or rendered, and that no part thereof has been paid or satisfied. That the items charged therein for travel in serving process was necessary and the travelling was actually ACCOUNTS OF CONSTABLES. 583 done in the execution of such process only, and that the number of miles travelled in each instance is correctly given and that I travelled by the usual travelled routes in each instance. That in every case, except where other- wise distinctly stated, the charge for travelling was made only upon one process, which process is described in said account. (In cases where the officer was compelled to travel in opposite or different directions to serve sub- peena, then add ‘‘ That in each instance where a charge is made for more than one travel in serving subpcenas, I was compelled to and did travel the number of miles charged and that the places of residence of the several witnesses served were in opposite directions from the office of the Justice of the Peace issuing the subpcena, so that it was impossible to serve the whole of the persons named in the subpeena in going in the same or nearly the same direction.” In such cases the Board of Supervisors have jurdisdiction to make proper allowance for such travel.) [Signature. ] Sworn to before me this } day of 1888. Justice of the Peace. As the above claims relate to the administration of the criminal laws, the Code Civil Procedure is inapplicable. § 721. Names of claimants to be published. It shall be the duty of the Board of Supervisors in each county in this state, annually to publish in one or more public newspapers in such county, the name of every individual who shall have had any account audited and allowed by said Board, and the amount of said claim as allowed, together with the amount claimed, and also their proceedings upon the equalization of the assessment roll. ‘Laws 1839, chap. 369, § 1; 2 R. S. (8th ed.) 1028. AUDITING ACCOUNTS IN PARTICULAR COUNTIES. $722. In Albany County. _ All claims and demands against the County of Albany, -which are to be passed upon the Board of Supervisors of 584 THe LAW OF SUPERVISORS. such county, must be presented to the Board in the man- ner now required by law, in the form of accounts, itemized and verified as hereinafter provided for. Such accounts, after being presented, shall be delivered to the clerk of the Board, and shall (excepting the verification thereof) be printed under the direction of said clerk, at an expense not exceeding the ordinary price paid for such work, and shall be distributed under his direction to each member of the Board within eight days after such accounts have been presented ; and no claim or demand against such county of the character above described shall be in any manner acted upon by the Board (except to refer the same: to an appropriate committee for examination and report), until three.days after such account has been printed and distributed as herein required. A willful neglect to have such accounts as are above described, printed or distrib- uted as is by this act required, and within the time herein specified, and the presentation of an account known to the person presenting it to be fictitious and without any foundation, shall be a misdemeanor. Laws 1881, chap. 283, § 1. What account must state. Each account must state when and where the work was performed or materials furnished, and by what contract or under what authority it was performed or the materials furnished, and must state, with reasonable detail, the character and amount of the work done and materials furnished. The account. must contain the names of each person interested in the same, or who makes any claim to any share or portion of the sum to be paid. Jbid., 2. How verified. Such account must be verified by one at least of the parties in whose name the same is pre- sented, and must be to the effect that the same is presented in the name or names of the real party or parties in interest, and that the contract was not made or the work performed or materials furnished in the name of one person for the benefit of another ; and that no county officer or member of any Board, or Commissioner of the ACCOUNTS AGAINST ALBANY Counry. 585. county, orsalaried employe thereof, is or has been directly or indirectly interested therein, either in the doing of the work or the furnishing of the materials, or has been paid or promised any thing for the letting of the contract. That the work charged for was actually done, and the materials specified actually furnished and used at the times and places mentioned, and are of the value charged, or are at the prices specified in the contract. That no bill has been presented or claim made theretofore for the payment for such work or materials, or for any part or item of such work or materials, except as therein stated, and if such bill has been theretofore presented, or such claim has been theretofore made, for the whole or any part thereof, it shall be stated to whom or what Board, Body or Com- mission it was presented or made, the time or times thereof, and the action of such person, Board, Body or Commission thereon, and when such action was taken. Laws 1881, chap. 283, § 3. Blank form of verification to be furnished by clerk. The clerk of the Board shall prepare a blank form of verification, under the last section, to be approved by the District Attorney, and it shall be printed and fur- nished by said clerk gratuitously to all persons demand- ing the same, and who have a claim or demand of the aforesaid character to present to the Board, and no account shall be presented to the Board, or received or paid, or ordered paid, or acted upon by it, unless the verification is in the form prepared by said clerk, and in no case shall the account be paid until five days after the proceedings of the Board allowing or auditing the account have been printed and distributed, as herein provided for, of which the certificate of the clerk of the Board to that effect shall be evidence ; and such account shall not be paid by the County Treasurer at all unless the verification and the bill presented complies with the provisions of this act. "When paid the original account or bill having the verification attached shall be receipted by the party receiving the money. or by his duly authorized agent, and filed with the County Treasurer, and is hereby 586 Tur Law OF SUPERVISORS. declared to be a public record in this office. All claims and demands presented, including verification, which shall not be allowed or paid, shall be retained and filed, with the proper indorsement of the name, date and amount, by the clerk of the Board, in his office, and shall be public records. Laws 1881, chap. 283, § 4. Proceedings of Board to be printed. The proceedings of the Board of Supervisors shall also be printed and dis- tributed, under the direction of its clerk, within the time above mentioned for the printing and distribution of the aforesaid accounts. In addition to the number of copies that may be required by the clerk of the Board, for dis- tribution above provided for, there shall be printed three hundred copies, which shall be kept by said printer in some safe place, and immediately after the first day of January in each year such copies for the preceding year shall be bound in good law sheep at the prices ordi- narily paid for such work, under the direction of the clerk of the Board, with an index list of county officers, com- mittees, etcetera, to be prepared by him, and the same shall be distributed under the direction of the Board. Ibid., § 5. Tax payers may purchase copies thereof. Upon pay- ment of ten dollars to the County Treasurer of the county any tax payer may have for one year a printed copy of the proceedings of the Board, and of the printed bills as they are from time to time distributed, and at the times above described for their delivery to the members of the Board delivered to him at some place to be designated by him, and within one-quarter of a mile from the place in which the Board holds its meetings. Jbid., § 6. Salaries not affected by this act. None of the provis- ions of this act shall be held to affect the salaries of County officers, or the mode or manner in which pay- ment thereof is made, or the wages of the city laborers ; nor shall the provisions of this act affect any contract now existing ; and noneof the provisions of this act shall apply to the employment of counsel to aid the District ACCOUNTS AGAINST SARATOGA COUNTY. 587 Attorney in any legal matters in which the county is interested when such employment is by authority of ‘law. Laws 1881, chap. 283, § 7. 723. — — In Saratoga County. The Supervisors of the County of Saratoga, by their clerk, shall provide a box with a suitable inscription thereon, and with lock and key and an opening in the top, to be kept in the office of the Clerk of said county, in which shall be deposited all bills and ac- counts against said county, and on the morning of the second day of the annual meeting of the Board of Supervisors of said county, the clerk of said Board shall take from the said box, all bills against said county, which he shall file as having been deposited with him on that day ; and it shall not be lawful for the said Board of Supervisors in any year, to audit as against said county, any other bill than such as shall be found in said box on the morning of the said second day of said annual meet- ing of that year, except bills for the services of the Su- pervisors and clerks. Laws 1855, chap. 190, § 1. Notice to be published. The clerk of the Board of Su- pervisors of said county shall annually give notice in at least four of the public newspapers published in said county, of the time of holding the annual meeting of the Board of Supervisors, to be inserted in said papers for -once in each week for four weeks previous to such meet- ing, requiring all persons having bills against said county to deposit the same in the said box on or before the first day of the next annual meeting of said Board, and in default thereof, that such bills will not be audited at said annual meeting. Jbid., § 2. § 724. —— In theCountyof Montgomery. The Supervisors of the County of Montgomery, by their clerk, shall provide a box with a suitable in- scription thereon, and with an opening in the top, to be kept in the office of the Clerk of said county, and in his charge, under lock and key, in which shall be deposited by said Clerk, all accounts and claims against said county; and it shall be the duty of 588 THE LAW OF SUPERVISORS. said Clerk to receive said accounts and claims, and to in- dorse thereon the name of the claimant, the amount of the claim, and the time of depositing the same, and his signature, and to deposit the same in said box ; and on the morning of the second day of the annual meeting of the Board of Supervisors of said county, the clerk of said. Board shall take from said box, before the transaction of any other business, all bills and accounts against said county, which he shall then file and number, according to the provision of the third section of this act, from one upwards, as having been deposited with him on that day; and it shall not be lawful for the said Board of Supervis- ors, in any one year, to audit, as against said county, any other bill or account than such as shall be found by the clerk of said Board, in said box, on the morning of said second day of said annual meeting of that year, except bills for service of the Supervisors and clerks. Laws 1859, chap. 390, § 1. Notice to be published. The Clerk of the Board of Supervisors shall annually give notice in all the news- papers published in the County of Montgomery, of the time of holding the annual meeting of said Board in each year, to be inserted in said papers at least once in each week, for four weeks previous to such meeting, and requiring all persons having bills or accounts against said county to deposit the same with the County Clerk, duly verified, on or before the first day of the next annual meeting of said Board, and in default thereof, that such bill or account will not be audited by said annual meet- ing. Ibid., § 2. Accounts, how audited. No bill or account against said county, exceeding twenty-five dollars in amount, shall be audited by said Board of Supervisors, excepting by an affirmative vote of a majority of all the Supervisors elected for said county. The question on the allowance shall be taken* ayes and noes, and the names of the members voting for or against the allowance of each *So in original. ACCOUNTS AGAINST MontcomMERY County. 589 claim, shall be recorded in the minutes of the clerk ; and all bills and accounts presented in the name or for the benefit of any one person for audit in any one year, shall be attached together and be numbered, and be deemed one bill or account for the purposes specified in this sec- tion. Laws 1859, chap. 390, § 3. Audited bills, how indorsed. Ti shall be the duty of the clerk of said Board of Supervisors to indorse on every bill or account, audited as aforesaid, the word ‘‘audited,” the number of the bill, the amount for which the same was audited, and the date of the audit, which indorsement shall be signed by the chairman and the clerk of the said Board of Supervisors. Jbid., § 4. Audited bills to be delivered to County Treasurer, etc. It shall be the duty of the clerk of the said Board of Su- pervisors hereafter to number each county check issued by him on the County Treasurer of said county, with the same number, and to be for the same amount, and to the same person, as the bill or account audited was for which said check was issued, and to deliver over to said County Treasurer, immediately upon the adjournment of said Board of Supervisors, all bills and accounts audited by said Board, and to take a receipt from the said Treasurer, for all the sald bills and accounts so delivered over to him, stating the number and amount of each bill or account, and the name of the person in whose favor such bill or account was made out and audited, and shall deliver said receipt, immediately thereafter, to the County Clerk of Montgomery County, whose duty it shall be forthwith, +0 record said receipt in a book to be provided and kept in his office for that purpose, and the said clerk of the Board of Supervisors shall not be authorized to issue any check till after the adjournment of the said Board. Ibid., § 5. Duty of County Treasurer. It shall be the duty of said County Treasurer to file and keep all bills and ac- counts delivered as aforesaid to him, by the clerk of the said Board of Supervisors; and no such bill or account, 590 THE LAW OF SUPERVISORS. after being delivered over to the County Treasurer as aforesaid, shall be withdrawn from the custody of said Treasurer for any purpose whatever, except to be used as evidence upon a judicial trial or proceeding, and in such case it shall, after being used, be forthwith returned to the custody of said Treasurer; but it shall be the duty of the County Treasurer to furnish any person or persons desiring it with a certified copy of all or any of the bills or accounts on file in his office, upon said person or per- sons paying to said Treasurer for the same, the same fees per folio as is now allowed by law to the county Clerk of Montgomery County, for a certified copy of a deed or record. Laws 1859, chap. 390, § 6. County Treasurer not to pay certain bills. The County Treasurer shall not be authorized to pay any county check issued as aforesaid, by the clerk of the said Board of Supervisors, unless the bill or account for which said check was issued be on file in his office, and correspond- ing in name, number and amount with that of the check. Jbid., § 7. Classification of claims for publication. The clerk of the Board of Supervisors of said county, shall, in pre- paring the proceedings of said Board for publication, classify the claims and accounts audited by said Board by towns, showing the town from which said claim or account was presented, and the amount and general nature of said account or claim, as presented, and also to foot up and give the amount of the claims and accounts audited from each town, and the aggregate of all the claims and accounts audited by said Board against the county. Ibid., § 8. Neglect of duty a misdemeanor. Any of the officers herein named who shall neglect any of the duties required of him by this act, shall be guilty of a misdemeanor, and on conviction thereof he shall be punished by a fine not exceeding five hundred dollars, or imprisonment in the county jail not exceeding six months, or by both such fine and imprisonment. Jbid., § 9. ACCOUNTS AGAINST RENSSELAER Counrty. 591 Repeal. So much of all acts and parts of acts as are inconsistent with the provisions of this act are hereby repealed, so far as they relate to the County of Mont- gomery. Laws 1859, chap. 390, § 10. § 725. — — In Rensselaer County. The Board of Supervisors of Rensselaer County shall meet yearly for organization, on the third Tuesday of March, and elect a chairman and a clerk. The Board shall also yearly, between the general election and the fifteenth day of December following, have a full session, for examining and auditing accounts against the county, and transacting other business. Laws 1884, chap. 163,. § 1. Notice to claimants. Theclerk of the Board shall cause to be published weekly during each October, in a news-: paper published in Troy, a notice that accounts against the county, to be audited by the Board of Supervisors of Rensselaer County, at the next fall session thereof, must be left at the office of the County Treasurer of said county, before the first day of November then next, and with each notice shall be published the third section of this act. Jbid., § 2. Accounts, how made out. Every account against the county shall be made out to the original creditor ; shall give details of dates and items; if for work or materials, shall state by whom the same were ordered, and if the or- der be written, it or a copy shall be attached ; if for sup- plies to any officer, his receipts for same shall be at- tached ; if for advertising, there shall be annexed acopy of the advertisement, with proof of its publication ; if under contract, it shall briefly refer thereto ; and if by an officer for fees, services or expenses, like items, shall be consecutive. And every such account shall be verified by such creditor, if living, or if deceased, by the owner, to the effect that each item thereof is correct and true, and that no part thereof, except as therein stated, has been paid. Ibid., § 3. Duty of Supervisor's clerk as to such accounts. The- 592 THe Law OF SUPERVISORS. clerk, on the expiration of his notice, shall take charge of the accounts presented, and number them consecu- tively, and enter in an alphabetical book prepared there- for, the number of each account, the creditor’s name, its amount and its general subject ; and at the close of the next fall session, he shall insert opposite to each account the amount thereof audited. Laws 1884, chap. 163,§ 4. Accounts to be printed. The clerk shall also cause to be printed, at fair job rates for such work, two hundred copies of such accounts in unbound form, and fifty copies on writing paper slips; and at the opening of the fall session of the Board, he shall distribute three of such books to each Supervisor, and retain twenty copies for the use of future Boards, and the remaining books and said slips shall be for use and distribution by the Board ; but any tax payer may have one remaining book by pay- ing five dollars therefor to the County Treasurer. Insuch printed copies of accounts, verifications may be omitted, and such copies shall not include accounts of Coroner’s jurors, but instead a schedule thereof, stating each ju- ror’s name, date of inquest, name of its subject and amount of account. Jbid., § 5. Accounts not so presented not to be audited. No ac- count shall be audited by the Board, or acted upon by any committee thereof, unless such account shall have been made out, verified and presented as hereinbefore re- quired ; and it shall also appear, by the journal of the Board, that a printed copy thereof (except it be a Coroner’s juror’s account) was distributed at a meeting of the Board, to such attending Supervisor, at least five days before Nor shall any audit be paid until fifteen days after the fact thereof shall have appeared in the published daily Journal of the Board. But in case of public emergency therefor, an account not so presented may be audited by tinanimous vote, taken by yeas and nays, entered in the journal, provided such vote be ordered taken at such meeting by resolution passed at least two days before. Ibid. § 6. ACCOUNTS AGAINST RENSSELAER CouNTY. 593 Amount disallowed, how wndicated. Upon any account audited by the Board, the amount disallowed of any item shall be indicated opposite thereto. Laws 1884, chap. 163, § 7. Amount allowed to be indorsed thereon. After an account shall have been audited fifteen days, the clerk shall indorse thereon its amount as presented, the amount disallowed and the amount thereof audited, and sign the same and deliver the account, with its accompanying vouchers, to the County Treasurer, who shall keep the same as a public record. § 8. Printed copy account for claimant. After such audited account shall have been delivered to the County Treasurer, the clerk shall, on request of the payee thereof, deliver, to him a printed slip copy thereof, with minutes thereon of any disallowances, and attach thereto a certificate of the amount thereof audited, and to whom; and on pay- ment thereof by the County Treasurer, such certificate | and slip shall be delivered to him with a receipt for such payment, and by him attached to the original account, §9. Orders to be in writing. All orders hereafter made, whose execution shall be a county charge, shall be in writing, and truly dated, and in default of such an order given in advance of any thing being done under it, and by a person authorized to give the same, no account for executing it shall beaudited. A false dating of any such order shall be a misdemeanor. Jbid., § 10. This act does not apply to salaries. This act shall not apply to the salary of any officer of said county ; but the Board of Supervisors may cause the salary of any such officer, payable by the county, to be paid in quarterly pay- ments by the County Treasurer. Nor shall this act affect any existing contract ; nor shall sections four, five and six of this act apply to accounts of Supervisors for their salaries or mileage, or of inspectors of election or poll clerks. Jbizd., § 11. List of audits to be furnished County Treasurer. The 38 594 Tue LAW OF SUPERVISORS. clerk, at the close of the fall session of the Board, shall furnish to the County Treasurer a list of audits to Coroner’s jurors, and he shall enter them in a book kept by him therefor, and such jurors on being paid shall receipt therefor on such book. Laws 1884, chap. 163, § 12. Repeal. All acts and:parts of acts inconsistent with, or repugnant to, this act, are hereby repealed so faras the same relate to Rensselaer County. Jbid., § 13. CLAIMS THAT ARE NOT COUNTY CHARGES. § 726. Claim by Justice of the Peace For expense in defending himself against charge of impeachment, on which charge he was acquitted, is not a proper county charge and the County Treasurer held justified in refusing to pay it after audit by Board of Sup- pervisors. People v. Lawrence, 6 Hill, 244. § 727. Extinguished county orders. Where the holder of county orders sends them to the Treasurer of the county and thereby enables him to use them as his vouchers on a settlement, and is afterwards repaid in other orders which have been paid by theTreas- urer, subsequent to the settlement, he is estopped from denying the payment of the orders lent, and cannot re- cover upon those returned to him. Chemung Canal Bank v. Supervisors of Chemung Co., 5 Denio, 517. §728. Expense of determining right to an office. A Board of Supervisors cannot lawfully engage a county in, or bind it to the payment of the expenses of a, litigation by an individual to establish his right to an office ; and the audit and payment thereof is unlawful and can be recovered back. Supervisors of Richmond Co. v. Ellis, 59 N. Y. 620. § 729. Taxes illegally assessed. Where Assessors assess property to the wrong person and the taxes are collected the Supervisors cannot be com- pelled by mandamus to audit and allow to the person thus wrongfully assessed the amount of the tax collected from him, and direct it to be levied upon the town or county. People v. Supervisors of Chenango Co., 11 N. Y. 563. CLAIMS Not County CHARGES. 595 § 730. Discount on valid claims. Where a person was entitled to a per diem compensa- tion of two dollars a day for services as janitor of an armory, but no provision had been made by the Board of Supervisors for payment and the creditor discounted his claims at a bank, paying therefor a considerable sum, it was held that the discount allowed to the bank was not a county charge. People v. Supervisors of Ulster Co., 43 Hun, 385. § 731. Advertising terms of courts. The Supreme Court has no power to order the publica- tion, in a newspaper, of the appointment of the terms to be held by that Court, or to direct payment of the expense of such publication. People v. Hill, 36 Hun, 619. Nor for publication of notice of holding Courts of Oyer and Terminer, étc. People v. Supervisors of Greene Co., 93 Hun, 299. 596 THE LAW OF SUPERVISORS. CHAPTER XIX. OF THE BOARD OF SUPERVISORS—ITS MEETINGS, ORGANIZATION AND RULES OF PROCEDURE, § 782. Board, how composed. § 733, Annual meetings to be held. § 734, Annual meetings, when to be held. § 735. Annual meetings in particular counties. § 736. Annual meetings, where to be held in Oswego County. § 787. Special meetings, adjournments. § 738. Special meetings, how called. § 739. Meetings to be public. § 740. Quorum. § 741. Organization of the Board. § 742. Chairman to be chosen. § 743. Powers of chairman. § 744. Clerk to be appointed. § 745. Other officers or assistants. § 746. Physicians to be elected in Albany and Monroe Counties. § 747. Rules of procedure. § 748. Standing rules. § 749. Standing committees. § 750. Validity of rules. § 751. Reconsideration and rescission of rules. § 752. Who may not serve on committees. § 753. Board ready to transact business. § 754, Supervisor in Erie Co. not eligible to certain offices. § 732. Board of Supervisors, of whom composed. The Board of Supervisors of a county is composed of the Supervisors elected annually in the several towns and of the Supervisors elected, as specially provided by law, in the several wards of the cities in such county. In several of the counties Supervisors are elected for two years. It is so in Erie County, Laws 1878, chap. 103, in Steuben and Livingston, Laws 1878, chap. 223, as amended by Laws 1879, chap. 5; see Laws 1878, chap. 253, as amended by Laws 1879, chap. 48; in Albany and Rensselaer, Laws 1878, chap. 253, as amended by Laws 1879, chap. 48, in Kings County, Laws 1864, chap. 119. e MEETING oF BOARD OF SUPERVISORS. 597 In Kings County a Supervisor at large is elected from the county, who holds office for two years and is ez officio chairman of the Board, but having only a casting vote in case of a tie. Laws 1871, chap. 115. In the County of New York. The Board of Supervis- ors in the County of New York has been substantially abolished and the duties theretofore discharged by the Supervisors individually and as a Board, were devolved upon the Board of Aldermen of the City and County of New York. Laws 1874, chap. 304. § 733. Annual meetings to be held. The Supervisors of the several cities and towns in each of the counties of this state, shall meet annually in their respective counties, for the dispatch of business, as a Board of Supervisors. 1 R. 8. 366, § 1, (2 R. 8S. [8th ed.] 1020). Where the Supervisors of a county have neglected to perform any duty required of them at their annual meeting, they may be compelled by mandamus to meet again and perform it. They cannot by their neglect nul- lify a statute imposing duties upon them. People v. Supervisors of Chenango Co., 8 N. Y. 318. § 734. Annual meetings, when to be held. The Revised Statutes (vol. 1, p. 366, §§ 2 and 8) fixed the times of holding the annual meetings of the Boards of Supervisors throughout the state. Those sections were superseded and in effect repealed by Laws 1849, chap. 194, §$ 4 and 11, and by the fourth section of that act it was provided that the Boards of Supervisors were vested with power to fix the time and place of holding their annual meetings. 2R. 8. (8th ed.) 1024. Since the enactment of this statute the annual meet- ings are not uniform throughout the state. In some counties they are held in October, and in other counties subsequent to their meeting asa Board of County Canvass- ers. § 735. — —In particular counties. Since the enactment of the Revised Statutes in 1827, 598 THe LAW OF SUPERVISORS. local acts have been enacted, fixing the time of holding the annual meetings in particular counties. These stat- utes were not affected by the act of 1849, that being a general law, and the repealing clause merely repealed all acts and parts of acts inconsistent with its provisions. The acts thus repealed were general laws and not local and special ones. In Albany County on second Tuesday in May for or- ganization and business, and again on Tuesday next af- ter general election in November. Laws 1843, chap. it. In Clinton County on second Monday of November. Laws 1848, chap. 162. In Chenango County on Monday next after the general election. Jaws 1833, chap. 136. In Chautauqua County on the Tuesday next after the general election. Laws 1829, chap. 192. In ‘Columbia County on Tuesday next after general election. Laws 1833, chap. 152. In Dutchess County on the first Monday in October. Laws 1829, chap. 8. In Greene County on the first Tuesday after the annual election in each andevery year. Laws 1828, chap. 132. In Jefferson County on Monday next after the general election in each year. Laws 1834, chap. 90. In Livingston County the annual meeting is to be held on the second Monday in November in each and every year. Laws 1828, chap. 72. In Orleans County on Monday next succeeding the an- nual elections in each and every year. Laws 1828, chap. 91. In Rensselaer County on the third Tuesday of March, for purpose of electing chairman and clerk, and a fall meet- ing between the general election and the fifteenth day of December following. Laws 1884, chap. 163. In Warren County on the Monday next after the gen- eral election in each year. Laws 1832, chap. 134, su- perseding Laws 1831, chap. 150. In Westchester County on the first Monday after the an- MEETINGS OF BOARD OF SUPERVISORS. 599 annual election in each and every year. Laws 1830, chap. 9. ‘§ 736. Meetings, where to be held in Oswego 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 1869, chap. 110, §1, as amended by Laws 1871, chap. 216, § 1. Adjourned sessions. Itshall belawful forthe 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. dIbid., § 3, as amended by Laws 1871, chap. 216, § 2. § 737. Special meetings—adjournments. They may also hold special meetings at such times and places as they may find convenient; and shall have power to adjourn from time to time, as they may deem necessary. 1R. 8. 366, § 1, QR. S. [8th ed.] 1020). § 738. Special meetings, how called. Special meetings of the Boards of Supervisors of any county may be called by the clerk of the Board, at any time, on the written request of a majority of the Su- pervisors of the county. Laws 1838, chap. 314, § 5; 2 R. 8. (8th ed.) 1023. § 739. All meetings shall be public. The Boards of Supervisors shall sit with open doors and all persons may attend their meetings. 1 R. S. 367, § 6, (2 R. S. [8th ed.] 1020). $740. A majority constitutes a quorum. A majority of the Supervisors of any county shall con- stitute a quorum for the transaction of business ; and all questions which shall arise at their meetings, shall be determined by the votes of the Supervisors present. 1 R. S. 367, § 5, (2 BR. 8. [8th ed.] 1020. 600 Tue LAW oF SUPERVISORS. Where a majority voted in favor of a resolution and the chairmain declared the resolution lost for want of a two-thirds vote, a mandamus issued requiring the chair- man to declare the resolution adopted and the clerk to so record it. People v. Brinkerhoff, 68 N. Y. 259. A provision of a statute can not be altered by a rule of the Board. Ibid. § 741. Organization of the Board. When the Supervisors of any county shall have assem- bled at the time and place designated for holding the an- nual session of the Board, the first thing in order is to. call the roll of members to ascertain whether the whole number are present and to ascertain who are absent, and whether or not there are any contested seats. The roll is called by the clerk of the previous Board, as he holds over and discharges the duties of his office until his successor is elected and qualifies. 1 R. 8. 11%, §9 (1 R. S. [8th ed. | 397). As a majority of the Board constitutes a quorum for the transaction of business if a majority respond to the call, the Board may proceed to complete its organization, al- though it is not usual to do so on the day of meet- ing if there be absentees. If a quorum should not be present at the roll call the Board can not organize nor transact any business. It can adjourn to any convenient time, and continue ad- journing until a quorum is present. If the roll call discloses any contest for membership, the clerk will call and recognize the person holding the certificate of election, if in proper form ; as that establishes. his right, prima facie, to the office, and entitles him to hold the office until his right to hold it has been deter- mined either by the courts or by the Board of Supervisors. The power to investigate and determine cases of con- tested elections is expressly conferred upon the Board by statute, which reads: County Boards of Supervisors shall also have authority, by resolution, to be duly en- tered in their minutes of proceedings, and to be published therewith: 1. To determine, unless the same shall have been determined by a court having jurisdiction thereof,. OGANIZATION OF BOARD. 601 upon the returns of the proper certifying officers, and upon such other testimony furnished to them as would be competent in a court of law, all cases of contested mem- bership in their respective Boards, and when so deter- mined in any case, the decision shall be conclusive as to the right of the parties to the contest. Laws 1875, chap. 482, § 7. When, on the roll call, a member produces a certified copy of a judgment of a court of competent jurisdiction, determining his right to the office, it is no longer a case of contested membership ; and he must be recognized as a member of the Board. It is competent for the Board to organize temporarily or permanently, as a majority may determine. It is usual for the members of different political organ- izations to determine in advance, in caucus, whom they will support for the different officers to be elected by the Board, and to agree upon the names of the members who shall present the names of the persons thus agreed upon. After this has been done and the Board assembles and a motion is made to proceed to elect a chairman, the clerk of the former Board presides and puts the motion. The election may be by ballot or by a viva voce vote. ‘When the latter course is pursued, as the roll is called each member announces the name of the candidate for whom he votes; or the election may be by resolution adopted by a viva voce vote, as the Board may determine. Upon the election of a chairman, he thenceforth pre- sides and the clerk continues to act as such until his suc- cessor is elected and qualifies. To complete a permanent organization the following officers are chosen : § 742. Chairman to be chosen. They 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. 1R. 8. 367, §7, (QR. S. [8th ed.] 1020). . 602 THe LAW OF SUPERVISORS. In Kings County a Supervisor at large is elected who is ex officio chairman of the Board, possessing merely a casting vote in case of a tie. Laws 1871, chap. 115. In Erie County. Thechairman of the Board of Super- visors of Erie County, chosen at the annual meeting thereof, in the year 1885, and at each annual session thereafter, shall hold his office as such chairman until the day preceding the first Tuesday in October in each and every year, for the purpose of filling any vacancies in office which he is now or may hereafter be authorized to fill; and upon him as such chairman all legal notices, and processes in any action or proceeding against said county, or in which said county is interested, shall be served ; and as such chairman he is hereby authorized to execute in the name of said Board all conveyances of real estate belonging to said county, in pursuance of any resolution of said Board directing the same ; and as such to accept in behalf of said Board all conveyances of real estate to said County of Erie, when authorized by said Board so to do ; and as such chairman he shall preside at all special meetings of said Board in case he shall be at that time a member of said Board of Supervisors of said county, and keting as such. Laws 1886, chap. 362, § 1. § 743. Powers of chairman. In addition to his power as presiding officer of the Board, the chairman is authorized to administer an oath to any person, concerning any matter submitted to the Board, or connected with their powers or duties. 1 R. S. 366, § 8, (2 R. S. [Sth ed.] 1020). To administer oaths to witnesses to be examined before the Board, Laws 1858, chap. 190, § 9; 2 R. S. (8th ed.) 1030, to claimants to their claims against the county. Laws 1845, chap. 180, § 24. He may issue subpoenas. Laws 1858, chap. 190, §§ 3 and 4. 2R.8. (8th ed.) 1029. In connection with the County Judge to approve of bonds given by depositaries of county funds. Laws 1877, chap. 436, § 2; 2 R. &. (8th ed.) 1053. And in counties where the annual meeting of the CHAIRMAN AND CLERK OF BOARD. 608 Board is held before the annual election, in connection with the County Clerk to approve the County Treasurer’s bond. Laws 1850, chap. 346, §§ 2 and 3; 2 R. S. (8th ed.) 1051. To sign commissions of officers appointed by the Board. 1B. S. 118, $19, (1 R. S. [8th ed.] 399). To sign (with the clerk of the Board) notice for an election in cases where there is a failure to elect in con- sequence of a tie vote. Laws 1842, title IIL, ¢ 7; 1 R. S. (8th ed.) 413. Where the chairman, notwithstanding a majority votes for a pending resolution, declares the motion lost for want of a two-thirds vote, mandamus will issue to compel him to declare the resolution carried and the clerk to so record it inthe minutes. People v. Brinker- hoff, 68 N. Y. 259. § 744. Clerk to be appointed. Each Board of Supervisors shall, as often as may be necessary, appoint some proper person to be their clerk, who shall hold his office during their pleasure. 1R. S. 367, $9, (2 R. S. [Sth ed.} 1021). After the clerk is appointed. unless removed by the Board, he will hold office until his successor is appointed and qualifies. 1R.S. 117, § 9, 1 B.S. [8th ed. ] 397). The duties of the clerk being varied and extensive, will be treated of in chapter 24. In Kings County the clerk of the Board is elected for two yearsand until his successor is elected. Laws 1878, chap. 353. In Erie County the clerk shall hold until the commence- ment of the next annual session and until his successor shail have been appointed ; and before entering upon the duties of his office he is required to give bond in penalty of $10,000, to be approved by the chairman of the Board. Laws 1876, chap. 231, as amended by Laws 1876, chap. 195. § 745. Other officers or assistants. The Board may appoint stich other necessary assist- 604. Tue Law OF SUPERVISORS. ants as may be required. In counties where the public buildings are not in charge of a janitor they have the un- doubted right to employ a person to keep their rooms in order. It is quite customary to appoint a Sergeant-at-arms and assistants to preserve order and to execute the orders of the chairman and Board during sessions of the Board. § 746. Physicians. In Albany County the Board is required to choose, at their annual session in each year, four physicians of good standing and properly qualified to attend any and all post-mortem examinations held by the Coroners of said county, to be paid a compensation to be fixed by the Board. Laws 1878, chap. 37, §§ 5 and 6, In Monroe County the Board of Supervisors shall at their annual session each year, elect four physicians, two to reside in the City of Rochester, and one each in the first and third assembly districts respectively, including the 15th and 16th wards, in the same manner as other county officers are elected by said Board ; said physicians to be of good standing and properly qualified, whose duty it shall be to attend any and all post-mortem and all other examinations held by any of the Coroners, when- ever required by the Conorers holding such examination. The physicians in the first and third assembly districts shall receive an annual salary of $100, each; those of the second assembly district an annual salary of $400, each, and not to be increased. Laws 1878, chap. 156, § 3. In Rensselaer County, messenger, etc. The said Board of Supervisors may appoint not to exceed two messengers, and the compensation of each messenger shall be two dollars a day for each day’s attendance on said Board when in session. Doorkeepers, compensation of. The doorkeeper of said Board shall receive for his compensation as such door- keeper, three dollars a day for such day’s attendance when said Board shall be in session. OFFICERS AND ASSISTANTS OF BOARD. 605 And it shall not be lawful for said Board to audit and ° allow, or the County Treasurer to pay, any Supervisor of said county, or the Clerk, messengers or doorkeeper of said Board of Supervisors, any greater salary or compen- sation than that provided by this act. Laws 1875, chap. 560, § 3. In Erie County. The Board of Supervisors may appoint a Sergeant-at-Arms and one messenger, who shall hold their office during the pleasure of the Board. Laws 1876, chap. 231, § 2, as amended by Laws 1879, chap. 195, § 1. The compensation of the Sergeant-at-Arms shall be two dollars per day for each day’s actual attendance at any session of the Board of Supervisors. The compensation of the messenger shall be one dol- lar per day for each day’s actual attendance at any ses- sion of said Board. The compensation of the Sergeant-at-Arms and mes- senger shall be paid at the close of each session by res- olution of the Board, on the certificate of the chairman, filed with the clerk. Laws 1876, chap. 231, § 3, as amended by Laws 1879, chap. 195, § 2. It shall not be lawful for said Board to audit or allow, or for the County Treasurer to pay, any Supervisor, clerk, assistant clerk, Sergeant-at-Arms or messenger, any greater sums than is allowed by this act. Every offense against the provisions of this act shall be a mis- ‘demeanor, punishable by a fine not less than fifty dollars, or imprisonment in the county jail not more than six months, or both such fine or imprisonment. Laws 1876, chap. 231, § 4. -‘§ 747. Rules of procedure. County Boards of Supervisors shall also have author- ity, by resolution, to be duly entered in their minutes -of proceedings, and to be published therewith, To make rules for the conduct of their proceedings, to compel the attendance of absent members at meetings of their respective Boards, and for the maintenance of 606 Toe LAw OF SUPERVISORS, order and decorum at such meetings, and to enforce pecuniary penalties, not exceeding fifty dollars for each offense, for the violation of such rules. Laws 18%, chap. 482, § 7. § 748. Standing rules. The following are the standing rules used by the Board of Supervisors in the County of Erie, and are a useful set of rules. Of course each Board adopts such rules as it deems best for its use. I, Roll call, At any and every meeting of the Board, upon the mem- bers being called to order by the chairman, the roll of members shall be called by the clerk, the names of those present and absent shall be in- serted in the minutes, and the members present shall be announced by said clerk. The minutes of the preceding day shall be then read, to the end that any mistakes therein may be corrected by the Board. Il. Order of business. After reading and approving of the minutes, the order of business, which shall not in any case be departed from, ex- cept by the unanimous consent of the Board, shall be as follows : 1—Calling of the roll. 2—Reading and approving minutes. 3—Presentation of petitions and remonstrances, 4—Communications presented by members of the Board, 5—Presentation and reference of accounts. 6—Reports of standing committees. 7—Reports of select committees. 8—Motions, resolutions and notices. 9—Unfinished business. 10—Announcements from the chair. 11—Special orders of the day. III. Questions of priority. All questions relating to the priority of business shall be decided without debate. IV. Preservation of order. The chairman shall preserve order and decorum, and shall decide all questions of order, subject to an appeal to the Board. He shall have the right to name any member to perform theduties of the chair, but such substitution shall not extend beyond the next adjournment. V. Vote of chairman. The chairman in all cases shall have the right to vote, and when the Board shall be equally divided, including his vote, the question shall be lost. VI. Speaker to address the chair. Every member, previous to his speaking, shall rise from his seat and address himself to the chair. VII. Chairman to recognize speaker. When two or more members rise at once, the chairman shall name the member who is first to speak. VIII. Members entitled to speak. No member shall speak more than once on any question, nor, in any case, until every member choosing to speak shall have spoken, nor more than twice in any case without leave of the Board. STANDING RULES OF THE BOARD. 607 IX. Caillsto order. A member called to order shall immediately sit down unless permitted to explain. If there be no appeal, the decision of the chair shall be conclusive ; but if any member appeal tothe Board, from the decision of the chair, the Board shall decide on the case with- out debate, if the question on which the appeal was taken was not de- batable, and the question shall be stated by the chair to be—Shall the decision of the chair stand as the judgment of this Board ? X, Members must vote unless ‘excused. Every member who shail be present when the question is stated from the chair shall vote thereon, unless excused by the Board, or unless he be directly interested in the question, in which case he shall, if he choose, be excused from voting. No member shall be permitted to vote upon any question unless present when, upon division, his name is called in its regular order, or unless he appears in the Board before the decision shall have been declared by the chair. XI. Presentation of petitions. Petitions, memorials, and other pa- pers addressed to the Board shall be presented by the chair, or by a mem- ber in his place. XI. Petitions to be indorsed. Every member, previous to present- ing a petition or memorial, shall indorse on the same the substance thereof, and add his name; the clerk shall read the endorsement, after which the chairman shall put the question on the reference of said peti- tion or memorial. XIII. Motion may be withdrawn. After a motion is stated by the chairman, it shall be in the possession of the Board, but may be with- drawn at any time before a decision or amendment. XIV. Division of question. If the question in debate contains sever- al distinct propositions, any member may have the same divided. XV. Filling blanks. When a blank is to be filled, and different sums or times are proposed, the question shall be first put upon the largest sum and longest time. XVI. Motions during debate. When a question is under debate, no motion shall be received, unless for the previous question, to postpone it indefinitely, to adjourn to a day certain, to lay it on the table, to com- mit it, to amend it, or to adjourn the Board. XVII. Motion for previous question precludes debate. A motion for the previous question, to lay the question on the table, or to commit it until it is decided, shall preclude all amendment and debate of the main question ; and a motion to postpone a question indefinitely, to adjourn it to a day certain, shall, until it is decided, preclude all amendment of the main question. XVIII. Previous question, how stated. The previous question shall be as follows: Shall the main question be now put? XIX. Motion to adjourn. A motion to adjourn the Board will always be in order, and shall be decided without debate. XX. Name of mover to be in minutes. In all cases, when an order, a resolution or motion shall be entered on the minutes of the Board, the name of the member moving the same shall also be entered on the min- utes. 608 THe Law OF SUPERVISORS. XXI. Ayesand Noes. The ayes and noes upon any question shall be taken and entered upon the minutes, if required by any member, before the decision of the chair is announced. XXII. Reports of select committees. Select committees to whom Teferences are made, shall, in all cases, report the facts in full. XXII. Quorum not present. If, at any time, when in committee of the whole Board, there be not present a quorum to do business, the chairman shall immediately report the fact to the Board. XXIV. Motions to reconsider. No motion for reconsideration shall be in order, unless on the same day or the session day following’that on which the decision proposed to be considered took place, nor unless one of the majority shall move such reconsideration. A motion for recon- sideration, being put and lost, shall not be renewed ; nor shall any sub- ject be a second time reconsidered without unanimous consent. XXV. Amending or suspending rules. No standing rule or order of the Board shall be rescinded, suspended, or changed, nor any additional rule or order added thereto, unless it be by unanimous consent, without one day’s notice being given of the motion therefor, and no motion to such effect shall be in order without such notice. XXXVI. Manner of presenting petitions. Every member, previous to presenting a paper of any kind, shall properly fold and indorse the same with the substance thereof, date of presentation, and his name thereon ; and upon accounts the amount claimed shall be indorsed; and the clerk or chairman shall read the indorsement, after which it shall be referred to its appropriate committee, or otherwise disposed of, as the Board may direct. XXVII. Accounts, when not to be audited. No accountsshall be audit- ed for services rendered, or liabilities which shall have accrued, sub- sequent to the commencement of the present meeting of the Board, except for services of the members and officers, and such other accounts as may be ordered by the Board at its present meeting. XXVIII. Duties of clerk, It shall be the duty of the clerk cf the Board to carefully preserve the rough minutes of each day’s proceedings, and immediately after the final adjournment of the Board engross the same in a book prepared for that purpose. Also to carefully arrange and file all accounts, reports and other papers belonging to the Board, as re- quired by statute. It shall also be his duty to present a full report to the succeeding annual session of the Board, of all orders drawn on the County Treasurer, specifying in full for what purpose and by what au- thority the same were drawn. The clerk-elect shall, before entering upon his duties as such clerk, execute to the county a bond, with two sureties, who shall be freeholders, in the penal sum of Ten Thousand Dollars, to be approved by the chairman of the Board, together with the finance committee, for the faithful discharge of all duties imposed on him by the statutes of the Board, which bond shall, after being approved, be filed with the County Treasurer (and a copy of the same be printed with the proceedings of each year); such bond shall be discharged only by the Board and not until the chairman of the Board and the finance committee shall have certified to the Board that all of the duties of the STANDING .RULES OF THE BOARD. 609 ‘clerk have been fully performed, his accounts properly filed and his min- utes engrossed, and after his accounts and business have been fully exam- ined and reported on as correct, by a committee of the succeeding Board. XXIX. Reports of auditing committees. All committees to whom accounts are referred to be audited, shall, in reporting upon the same, state separately the amount allowed and the amounts to be charged to the county, city, towns and wards, respectively. XXX. Orders, when to be drawn. No order shall be drawn before the first Tuesday of November next, for accounts audited, except for accounts audited for matters ordered by vote of the Board. XXXII. Resolutions to be in writing. No resolution shall be enter- tained by this Board until it shall have been reduced to writing, with the indorsement of the member presenting it, and been handed to the clerk. XXXII. Money not tobe paid until. No money for any purpose shall be appropriated, or directed to be paid, or any liability incurred or created unless the subject matter has first been referred to a standing or select ‘committee, and a report made thereon, except appropriations for road and bridge purposes, when the amount appropriated does not exceed the amount allowed by statute, viz.: $250.00. XXXII. Reports to lie over one day. All reports of standing com- mittees, except that of the committee on apportionment of grand jurors, shall lie upon the table one day, and be printed before action thereon, or adoption by the Board. XXXIV. Rulesof assembly to apply. Onall points of order not cov- ered by the foregoing rules, the rules of order of the assembly of the State of New York shall be accepted as authority for the guidance of the Board. ; XXXV. Smoking prohibited. No smoking shall be allowed in the session room during the hours of session of the Board. XXXVI. Motions to rescind. A motion to rescind can only be ex- tertained when moved by a member who voted with the majority in the action which it is proposed to rescind, and requires the affirmative vote of two-thirds of all the members elected or appointed. The Board shall take no subsequent action upon the matter so rescinded until after it shall have been referred to a regular standing committee. XXXVII. Motions and their precedence. When a question shall be under consideration no motion shall be received, except as herein speci- fied, which motion shall have precedence in the order stated, viz. : 1—For an adjournment of the house. 2—For a call of the house. 3—For the previous question. 4—To lay on the table. 5—To postpone indefinitely. 6—To postpone to a certain day. 4—To go into committee of the whole on the pending subject im- mediately. 8—To commit to a committee of the whole. 9—To commit to a standing committee. 10—To amend. 39 610 THe LAW OF SUPERVISORS. § 749. Standing committees. Unless otherwise provided in the rules or by a vote of the Board the standing committees are selected and announced by the chairman ; and when thus announced no action is necessary on the part of the Board for their appointment. The following are the standing commit- tees in Erie County. 1. Finance. 16. Miscellaneous accounts. 2. Poorhouse and insane. 17, Military. 3. Superintendent of Poor. 18. Public buildings. 4, Erroneous taxation. 19. Assessments. 5. Coroners’ accounts. 20. School Commissioners and. 6. Printing accounts. districts. 7. Judges’ and Justices’accounts. 21. City committee. 8. Constables’ accounts. 22. Grand juries. 9. Sheriff’s accounts. 23. Board and clerk. 10. Clerks and criers. 24. Business of clerk. 11. District Attorney’s accounts. 25. Surrogate. 12. Accounts against towns. 26. Salaries. 18. United States deposit fund. 27. Accounts of charitable in- 14. Roads and bridges. stitutions. 15. Penitentiary. 28. Equalization of assessments. § 750. Validity of rules. The law was well understood that a rule adopted by a Board of Supervisors, that conflicted with a law of the state was invalid, but the Act of 1875, conferring legislative powers upon Boards of Supervisors in relation to the subjects specifically enumerated therein, seems to have conferred the power upon Boards of Supervisors to nullify a law of the state, where such law shall conflict with an enactment by the Board. It is certainly a very peculiar statute, and should be modified so as to make it intelligible if it is not to have the effect attributed to it, above. It reads as follows: Whenever, in the exercise by a Board of Supervisors of any of the powers conferred by this act, any enactment shall be made which shall be in conflict with any existing statute law of this state, such law, or so much thereof as shall so conflict, shall, for the purposes of this act, be inoperative in the case or cases provided for by such enactment. Laws 1875, chap. 482, $6; 2 R.S. (8th ed.) 1043. § 751. Reconsideration and rescission of rules. Among the rules adopted by the Board of Supervisors of COMPLETION OF ORGANIZATION OF BOARD. 611 Westchester County was one providing that a motion for reconsideration might be made by any member, but that no such motion shall be in order unless made on the same day or on the next day following the decision proposed to be re- considered, unless by unanimous consent. On January 2, 1874, a resolution was offered in the Board, appointing K. its librarian. The resolution was amended by inserting the name of B., the relator, for that of K., and, as so amended, it was adupted. On the nexi day a motion to reconsider this resolution was carried. On the succeeding day the resolution was reconsidered and lost. On January seventh a resolution appointing K. librarian was adopted, and was held by the court that the Board had power to reconsider and rescind the resolution by which B. was appointed librarian, and to there- after appoint K. to that office. People v. Mills, 32 Hun, 459. § 752. Who may not serve on committee. Itis a rule of the common law that no man shall adjudicate his own claim ; hence a Supervisor cannot act on a committee nor vote in the Board upon a claim or matter in which he is pecuniarily interested. A statute to that effect was enacted, Laws 1869, chap. 855, § 6, but in the amendment of that section, Laws 1870, chap. 432, and Laws 1871, chap. 274, the provision prohibiting a Supervisor to act on committee or in the Board, on a matter in which he was pecuniarily inter- ested, was stricken out, leaving the common law rule in force. § 753. Board ready to transact business. Having elected the officers required by law to be elected and appointed, such assistants as the Board may deem essential, and having adopted its standing rules and appointed its committees the Board is then in a situation and condition to transact business. And it must transact all its business as a Board and cannot delegate its powers to a committee. Before the action of a committee is of binding force, it must receive the sanction of the Board by the adoption of a resolution of approv- al. People v. Supervisors of St, Lawrence Co., 25 Hun, 131. § 754. Supervisor from Erie Co. not eligible to office. No Supervisor of the said County of Erie shall be eligible to any office in the gift of the Board of Supervisors during his term of office as such Supervisor. Laws 1879, chap. 231, § 5. 612 Tue Law OF SUPERVISORS. CHAPTER XX. OF THE BOARD OF SUPERVISORS—GENERAL POWERS OF. § 755. Source of power. § '756. Powers of the Board defined. HIGHWAYS AND BRIDGES. § 757. Power to raise money for purposes, defined. § 758. Repairs of roads and bridges. § 759. Additional moneys may be raised. § 760. Money to build or repair roads or bridges. § 761. Money for highway purposes, how raised. § 762. When road or bridge is in village. § 763. Further powers of local legislation, Act 1875, ch. 482. § 764. In relation to bridges. § 765. Bridges at county lines. § 766. Bridges between counties, expense how apportioned. § 767. To authorize towns to borrow moneys for bridges. § 768. Counties to pay part expense for bridges over streams. § 769. Commissioners of Highways to furnish statement of expense. § 770. Supervisors to levy tax for county’s portion. § 771. Supervisors may elect to pay more than one-sixth. § 772. Division of expense between towns and county. § 773. Not to apply to Westchester and New York. § 774. Repeal of inconsistent acts. § 775. Plank roads and turnpikes, purchase of. § 776. Road districts. § 777. Grading streets beyond city limits. § 778. Width of highways. § 779. Surveys and records of highways. § 780. Non-resident highway tax. § 781. Abandoned plank roads and turnpikes. § 782. Regulate tolls on bridges, ferries, etc. § 783. Money for roads, etc., in Queens County. § 784, Laying out highways through unimproved lands, § 785. Commissioners to expend state appropriations. § 786. May authorize change of state road. PUBLIC BUILDINGS. 787. Jails and court houses to be kept in repair. 788. Solitary cells. 789, Raise money for court house, jail, and Clerk’s office. § 790. § 791. § 792, § 798. § 794. § 795, § 796. § 797. § 798. § 799. § 800. § 801. § 802. § 803. § 804. § 805. § 806. § 807. § 808. § 809. § 810. § 811. § 812. § 813. § 814, § 815. 8 816. . § 817. § 818. $819. § 820. § 821. § 822. § 823. § 824. § 825. § 826. § 827. § 828. § 829. GENERAL Powers oF BOARD. 613 Additional powers to Board enumerated. Powers conferred by preceding section, how exercised. Resolutions to be recorded, etc. Real estate for county buildings, borrowing money, etc, CHANGING SITES OF COUNTY BUILDINGS. Petition for change of site. Proceedings on such petition. Question, how submitted to vote. Old site, how long to be used. This act does not affect special laws. New York and Kings Counties. Repeal of conflicting laws, Town and village halls. Sale or lease of county property. Lease buildings to Grand Army posts. Soldiers’ monuments. To repair, etc., monuments. TAXES, Quota of state taxes how ascertained. Board to levy state tax. Board to levy county taxes. Collection of taxes. Extension of time to collect taxes. Taxation of dogs. Tax to pay loans. Legalize irregular proceedings of towns, etc., correct errors=—- refund illegal taxes. SALARIES. To fix salaries of county officers. Salary of County Treasurer. Clerks and assistants for County Treasurer. Treasurer may retain fees for county. Counties exempted. Application of penalties in towns. Fish and game, preservation of. Employment of offenders. Jail limits. Special town meetings. Town meetings by election districts. Village fire apparatus. Fire districts. CEMETERIES. Acquisition of lands for—sale of lands. Improvement lots in—removal of remains. Sale of abandoned lots in. 614 § 830. § 831. Tue Law OF SUPERVISORS. TAX RECEIVERS. May authorize the election of Tax Receivers. Designate number of town officers, § 882. School districts—sale or exchange of real estate. § 833. § 834, § 835. § 836. § 887. § 838. School Commissioner’s districts, division of. County offices, to fix time for opening and closing. Powers conferred (by Laws 1875, chap. 482), how exercised, RESOLUTIONS AUTHORIZING ISSUE OF BONDS. Officers issuing bonds to give security. Contents of such resolutions. Statutes in conflict with resolutions, inoperative. CONTESTED ELECTION OF SUPERVISORS. § 839. Board to determine contested elections. § 840. § 841, § 842, § 843. § 844 § 845 SELECTION OF NEWSPAPERS TO PUBLISH ELECTION NOTICES. Divide, change boundaries and erect new towns. New town to be named—first meeting. Town and county poor, may abolish distinction. Destruction of wild beasts, thistles, weeds, etc. . Reports of county officers. . To determine disputed town lines. § 846. Adjust taxes paid while line disputed. § 847. Comptroller may loan money to towns and counties. § 848. Security for such loans, / § 849. Formation of new towns, apportionment of bonded debts, § 850. Railroad Commissioners to render statement. § 851. Assessors to make lists. § 852. Moneys to be paid in extinguishment of bonds. § 853. Application of this act. § 854. Seal may be adopted. § 855. Records and files, how made evidence. § 856. 8 857. Proceedings of Board, when evidence. Printed proceedings of Board, evidence. § 858. Witnesses may be subpcenaed by chairman of Board, § 859. Service of subpoena. § 860. Committee of Board, powers of, and of chairman thereof. § 861. Refusal to obey subpcena—attachment. § 862. Proceedings on return of attachment. § 863. Board or committee may adjourn—party attached to give bond. § 864. Filing and enforcement of such bonds. § 865. Orders to be entered, effect of. § 866. Oaths administered by chairman of Board and committee. § 867 § 868. $869. . Audit of Justice’s accounts in criminal cases. County records, copying same, etc., payment therefor. Audit accounts of Superintendent of Poor. § 870. Poor accounts, how to be kept. § 871. Poor fund may be paid to Overseer of Poor, GENERAL Powers BoarpD OF SUPERVISORS. 615 § 872. Out-door or temporary relief to poor. § 873. Support of prisoners under civil process. § 874. Bonded indebtedness of towns. § 875. Supervisor’s neglect of duty—liability therefor. § 876. No power to entertain guests at public expense. § 755. Source of power. A Board of Supervisors is a creature of the statutes. Its powers are conferred upon it by the statutes. Aside from the incidental powers which it may exercise, in connection with the powers granted by the statutes, and the exercise of the discretion vested in itin the discharge of the duties en- joined upon it by law, it may be said to be powerless. And in the transaction of business, unless a law can be found which authorizes the performance of an act, the safest course to pursue is to refrain from doing the act, because, when Supervisors act without warrant in law for their- action, they fail to bind the county, but render themselves personally liable. A great many statutes have been enacted conferring vari- ous powers upon Boards of Supervisors—not always consist- ent and harmonious, nor wise nor judicious—and [J shall en- deavor to arrange them as systematically as possible for the convenient use of Supervisors and those who have business to transact with the Board. §756. Powers of the Board. The Board of Supervisors of each county in this state, shall have power at their annual meetings or at any other meeting, 1. In relation to corporate property of the county. To " make such orders concerning the corporate property of the county as they may deem expedient ; 2. To audit accounts against the county. To examine, settle and allow all accounts chargeable against such county; and to direct the raising cf such sums as may be necessary to ‘defray the same ; 3. To audit town accounts. To audit the accounts of town officers and other persons against their respective towns ; and to direct the raising of such sums as may be necessary to defray the same ; and, 4, Other duties enjoined by law. To perform all other 616 Tue LAW OF SUPERVISORS. duties which may be enjoined on them by any law of this: state. 1R. S. 366, §4, (2 R.S. [8th ed.] 1020). Powers in relation to auditing accounts. Boards of Supervisors, in auditing accounts, are limited to the powers con- ferred on them by statute. People v. Lawrence, 6 Hill, 244. If the subject matter of the account be within their jurisdic- tion and they allow the account, their action is final, but if it be not within their jurisdiction, the County Treasurer may refuse to pay ; and the courts will sustain him. bid. They cannot bind their county by an act not within the limits of the express powers conferred upon them by statute. They cannot allow a claim on merely equitable grounds. Che- mung Canal Bank v. Supervisors of Chemung, 5 Denio, 517. They cannot make bills of exchange. bid. They have no power to audit and allow accounts not legally chargeable to their county, and if they do, such audit is null and void, and may be disregarded by the officers of the county, and is not binding or conclusive upon a succeeding Board. Supervisors of Richmond Co. v. Ellis, 59 N. Y. 620. They cannot lawfully engage a county in or bind it to the payment of the expenses of a litigation by an individual to. establish his right to an office, and the audit and payment. thereof is unlawful and the money may be recovered back.. Ibid. Iu cases where the Board can exercise discretion in the audit of accounts, the power to examine, settle and allow involves the right to reject, if sufficient reasons are not pre- sented to warrant an allowance. People v. Supervisors of Dutchess, 9 Wend. 508. In auditing salaries of officers, fixed by law, they have no discretion, but must audit them ; and they may be compelled todo so by mandamus. Morris v. People, 3 Denio, 382. A Board of Supervisors has power to rescind a resolution auditing and allowinga claim against the county upon dis- covery of a mistake or error. People v. Supervisors of Broome Co., 65 N. Y. 222. HIGHWAYS AND BRIDGES. § 757. Power to raise money. ; The Board of Supervisors of each county in this state shall, HIGHWAYS AND BRIDGES. 617 in addition to the powers conferred on them by law, have power, at their annual meeting, or when lawfully convened at any other meeting, 1. For bridges. To cause to be levied, collected and paid to the Treasurer of the county, such sum of money as may be necessary to construct and repair bridges therein ; and to pre- scribe upon what plan and in what manner the moneys so to be raised shall be expended. 2. To apportion the tax so to be raised among the several towns and wards of their county, as shall seem to them to be equitable and just. Laws 1838, chap. 314, §1, subdiv. 1 and 2; 2R. 8. (8th ed.) 1022. The Act of 1838 (chap. 314) authorizes the Board of Super- visors of the county to raise money by taxation to aid in the reparation of bridges, and to apportion the tax among the towns of the county as to the Board appears equilable. Hill v. Supervisors of Livingston Co., 12 N. Y. 52. Where the Board caused a portion of the money expended under its supervision in repairing a public bridge which crossed a stream dividing two towns, to be levied upon the whole county, and the residue upon the two towns, it was held that the tax upon the two towns was legally imposed. Ibid. Where a bridge was built under a special local law (by a bridge company) which provided that in case the bridge should be destroyed and not rebuilt as therein specified, “the bridge shall thereupon become a public bridge, and may be maintained at the expense of the County of Livingston.” The bridge having been swept away and abandoned by the company, and was rebuilt by the county and kept in repair by the two adjoining towns. Jn an action by a ccntractor under a contract made with the Commissioners of such two towns to recover for repairing the bridge, it was held that the word may, meant must, that the duty devolved upon the county to keep the bridge in repair and that plaintiff could not recover, as the Commissioners of Highways of those towns had no jurisdiction in the premises. Phelps v. Hawley, 52 N. Y. 23; see also People v. Supervisors of “Dutchess Oo., 1 Hill, 50. 618 Tue Law OF SUPERVISORS. 4. To appoint special commissioners to lay out public highways in those cases where they shall be satisfied that the road applied for is important, and that the authority now con- ferred upon Commissioners of Highways cannot or will not be exercised to accomplish the laying out of such road. Laws 1838, chap. 314, § 1, subdiv. 4; 2 R. S. (8th ed.) 1022. Provision as to opening public highways. The power giver to Bcards of Supervisors by subdivision four of section one of the Act entitled “‘An act-to enlarge the powers of Boards of Supervisors,” passed April 18, 1838, to appoint special commissioners to lay out public highways, shall not be exercised by any Board of Supervisors, unless the appli- cant therefor shall prove to such Board of Supervisors the service of a notice in writing, on a Commissioner of High- ways of each town through or into which any such highway is intended to be laid, at least six days previous to presenting such application, specifying therein the object thereof, and names of persons proposed to be appointed such commissioners. Laws 1848, chap. 164; 2 R. S. (8th ed.) 1023. 5. Money for roads and bridges. To cause to be levied, collected and paid, in the manner now provided by law, such sum of money, in addition to the sum now allowed by law, not exceeding five hundred dollars in any one year, as a major- ity of the qualified voters of any town may, at any legal town meeting, have voted to be raised upon their town, for con- structing or repairing roads and bridges in such town. Laws 1838, chap. 314, §1, subdiv. 5; 2 R. S. (8th ed.) 1022. Notice to be put up. No moneys shall be raised under the autkority conferred. by the fifth st.bdivision of the preceding section, unless a written notice of the application to such town meeting to raise such amount shall be posted on the door of the house where the town meeting is to be held, and also at three public places in such town, for two weeks before the town meeting, and be also openly read to the Electors present, immediately after the opening of the meeting. Laws 1838, chap. 314, § 2. Notice to be published. All persons intending to apply to any Board of Supervisors for the imposing any tax pursu- HIGHWAYS AND BRIDGES. 619: ant to the first section of this act, except in cases under the fifth subdivision of that section, shall cause a notice of such application to be published once in each week for four success- ive weeks immediately preceding the meeting of the Board of Supervisors, at which such application shall be made, in anews- paper printed in such county ; but if no newspaper be printed in the county, then such notice shall be published in like manner, in some public newspaper printed nearest thereto. Laws 1838, chap. 814, §3; 2 R. 8. (8th ed. 1022). The third section of the Act of 1838 (chap. 314) requiring all persons intending to apply for the imposition of a tax to give notice, etc., does not, it seems, restrain the Board from acting on their own motion, in raising money for necessary repair of county bridges. People v. Supervisors of Dutchess Co., 1 Hill, 50. Special commissioners to be paid. The Supervisors shall have power to provide for the payment to the special commissioners to be appointed under the fourth subdivision of the first section of this act, for their time and expenses. The decisions made by said commissioners may be appealed. from, and reviewed in the same manner and with the like authority as is allowed by law in the cases of roads laid out by the Commissioners of Highways of any town. The roads so to be laid out by such special commissioners, or the same as settled on appeal, shall be recorced, opened and worked as public highways of the towns in which they are respectively situated, in the same manner as other highways of the town are now required by law to be recorded, opened and worked. Laws 1838, chap. 314, §4; 2 R. 8. (8th ed.) 1023. § 758. Repairs of roads and pridges. The Commissioners of Highways of each town, shall deliver to the Supervisor of such town, a statement of the improvements necessary to be made on the roads and bridges, together with the probable expense thereof ; which Supervisor shall lay the same before the Board of Super- visors at their next meeting. The Board of Supervisors shall cause the amount so estimated, to be assessed, levied and collected, in such town, in the same manner as other town charges; but the moneys to be raised in 620 THE LAW oF SUPERVISORS. any such town, shall not exceed in any one year, the sum of two hundred and fifty dollars. 1 R. S. 503, § 4, (2 R. S. [8th ed. ] 1348). § 759. Additional moneys may be raised. It is provided in and by Laws 1832, chap. 274, that whenever the Commissioners of Highways of any town shall be of the opinion that the sum of $250 is insufficient to pay the expenses actually necessary for the improve- ments of roads and bridges, they. may apply in open town meeting for a vote authorizing the raising of an additional sum, not exceeding $250. Provision is also made in case an additional sum is voted that it shall be levied by the Board of Supervisors upon the town and collected as other taxes. 2. S. (8th ed.) 1351. It is also provided in and by Laws 1857, chap. 615, that under similar circumstances the Commissioners of High- ways may apply in open town meeting to raise an additional sum for roads and bridges, not exceeding $750. Provision is also made by Laws 1858, chap. 103, as amended by Laws 1865, chap. 442, for raising money to repair or rebuild bridges damaged or destroyed. § 760. Board may authorize town to borrow money to build or repair roads or bridges. The said Boards of Supervisors shall have power, and they are hereby authorized, 9. To authorize any town in such county by a vote of such town, to borrow any sum of money not exceeding four thousand dollars in one year; to build or repair any roads or bridges in such town, and prescribe the time for the payment of the same, which time shall be within ten years, and for assessing the principal and interest thereof upon such town. Laws 1849, chap. 194, § 4, subdv. 9, (2 R. S. (8th ed.] 1024). § 761. Board may authorize town officers to borrow money for highway purposes. The Boards of Supervisors of each county in this state, except New York and Kings, shall have power at their annual meeting, or at any other regular meeting, to authorize the Supervisor of any town in said county, by HIGHWAYS AND BRIDGES. 621 and with the consent of the Commissioner or Commis- sioners of Highways, Town Clerk and Justices of the Peace of such town, to borrow such sum of money, for and on the credit of each town, not exceeding, however, in any year, the amount of one-half of one per centum on the assessed valuation of the taxable property of the town for such year, as the said town officers may deem necessary to build or repair any road or roads, bridge or bridges in such town, or which shall be partly in such town and partly in an adjoining town; orto pay any ex- isting debt incurred in good faith by or on behalf of such town, for such purpose, before the passage of this act; and the said Board of Supervisors shall have power to prescribe the form of obligation to be issued on any such loan, and the time and place of payment—the time not to exceed ten years from the date of such obligation —and the rate of interest thereon not exceeding six per centum per annum Tax to be levied to pay such obligations. And the said Board of Supervisors have power, and it shall be their duty, from time to time, as the said obligations shall become due and payable, to impose upon the tax- able property of such town sufficient tax to pay the said principal and interest of such obligations according to the terms and conditions thereof. Town officers to meet on first Monday of March yearly. The town officers hereinbefore mentioned shall meet at the Town Clerk’s office in the town for which they are elected or appointed, on the first Monday of March in each year, at ten o’clock in the morning, to determine what amount, if any, shall be borrowed on the credit of such town, for the purposes contained in the first section of the act hereby amended, and for what roads or bridges such amount shall be borrowed or appropriated, and for the same purposes a meeting or meetings of the said officers may and shall also be held upon the call of the Town Clerk, whose duty it shall be to call the same within one week after the receipt of a written request of twelve tax payers of the town therefor; and any 622 THE LAW OF SUPERVISORS. such meeting may be adjourned from time to time, either for want of a quorum or in default of any final determin- ation of any question arising concerning such appropri- ation ; but no such meeting shall be held subsequent to the first Monday of October in each year. Bonds, how to be indorsed. The bonds authorized by this act shall have indorsed thereon a certificate signed by the Town Clerk of the town for which they are issued, to the effect that such bonds are issued with the consent of the town officers herein mentioned, at a meeting, the date of which shall be mentioned in such certificate. Record thereof to be kept. The Town Clerk of any town, on account of which such bonds are issued, shall keep a record showing the date and amount of such bonds, the time and place when the same are made pay- able, and the rate of interest thereon. Bonds, how disposed of. Such bonds shall be deliv- ered to the Supervisor of the town, who shall dispose of the same for not less than the par value thereof, and pay the proceeds thereof to the Commissioner or Commis- sioners of Highways of such town, to be used by him or them for the purposes for which the same was appropri- ated ; but not more than five hundred dollars of such proceeds shall be expended upon any one road or bridge, except under and in pursuance of a contract to be made by the contractor with the Commissioner or a majority of the Commissioners of Highways of such town, for the construction or repair of such road or bridge, which con- tract shall be approved by a majority of the Town Audit- | ors of such town, neither of whom shall be interested in such contract. Any amount borrowed and appropriated pursuant to the provisions of this act, for the repair or construction of any road or bridge in any town, and which it shall not be necessary to use for such purpose shall be applied by the Commissioner or Commissioners of Highways to the repair of any other road or bridge in such town. Laws HIGHWAYS AND BRIDGES. 623 1869, chap. 855, § 1, as amended by Laws 1882, chap. 250, 81. The time of holding the meeting by the town officers, as provided in foregoing section, is directory merely, except that it must be held prior to the first Monday of October. People v. Tompkins, 64 N. Y. 53. Where the specified officers of a town have met within the time limited by the section and have deter- mined the amount to be borrowed, and the Board of Supervisors has conferred the requisite authority to issue bonds of the town for the amount, no subsequent meeting of said officers is necessary for the purpose of authorizing or consenting to such issue. bid. The provision of said section authorizing the Board of Supervisors to prescribe the form of obligation to be issued for the loan includes the naming of the town officer who is to execute the obligation, and they may impose this duty upon the Supervisor of the town. Ibid, Where a Supervisor of a town is required by the Board to execute the bonds, it is no excuse for refusal that the certificate of consent required by said section to be indorsed by the Town Clerk upon the bonds is not in due form ; a proper certificate can be added as well after as before the execution, and itis the duty of the Supervisor to see that any error is rectified. Ibzd. Section two of said act provides for a different and distinct class of cases from those provided’ for in section one, and a Supervisor of a town required to issue bonds, under and in pursuance of section one, is not justified in refusing so to do because two-thirds of the members of the Board of Supervisors did not. assent to the resolution authorizing the loan and di- recting such issue, or because it did not receive his affirmative vote, as required in cases included in section two. Ibid. § 762. Consent of Trustees necessary when road or bridge is in an incorporated village. In case the road or roads, bridge or bridges, referred to in the first section of this act, shall be wholly or partly 624 THe Law OF SUPERVISORS. within the limits of any incorporated village, the consent of a majority of the Trustees of such village shall be nec- essary for the action of Supervisors of towns under said section, in addition to the consent of the Commis- sioner or Commissioners of Highways, Town Clerk and Justices of the Peace of such town. Laws 1869, chap. 855, § 10, as added by Laws 1873, chap. 323; 2 R. 8. (8th ed.) 1034. § 763. Further powers of local legislation conferred. Further powers of local legislation and administration are hereby conferred on the Boards of Supervisors in the several counties of this state, except in cities whose boundaries are the same as those of the county, to make and administer, within their respective counties, laws and regulations as follows ; §764. In relation to location, construction and control of bridges. , 3. Ta authorize the location, change of location, and construction of any bridge (except on the Hudson River blow Waterford, and on the East River, or over the waters forming the boundaries of the state) which shall be applied for by any town or towns, jointly, or by any corporation formed pursuant to the general laws of this state, or by any corporation or individual for private purposes ; and in case of a public bridge erected by a corporation, to establish the rates of toll to be collected for crossing such bridge. But in every case where any such bridge is to cross a navigable stream of water, full provision shall be made in the resolution or permission authorizing the same, for the erection and niaintainance of a suitable draw to prevent any impeding of the havi- gation of such stream of water ; and in the case of a pri- vate bridge, provision shall be made that the draw shall be kept open as may be required to permit all vessels to pass without loss of headway. ; Where any bridge shall be on a stream or water form- ing at the point of crossing the dividing line of counties, the action of the Board of Supervisors of each county shall be necessary to give the jurisdiction permitted by HIGHWaAyYs AND BRIDGES. 625 this subdivision. In case any bridge (except on the Hud- son River, below Waterford, and on the East River, or over the waters forming the boundaries of the state) shall have been within one year previous to the passage of this act, or shall hereafter be, destroyed by the elements or otherwise, and the expense of constructing a bridge on or so near the site of the bridge so destroyed as to supply the public necessities occasioned by the loss of the bridge so destroyed, with the necessary approaches thereto, cannot be constructed at an expense which will not exceed double the sum now authorized by law to be raised upon the taxable property of the town or towns within which the bridge thus destroyed was situate, then and in that case the Board of Supervisors of any county in this state {except the Counties of New York, Westchester and Kings) within which such bridge was situate, may, at their discretion, without delay, provide for construct- ing and completing a bridge instead of the one destroyed, and all necessary approaches thereto of durable material, at the earliest practicable time, on the site of the bridge so destroyed ; and in case the bridge so destroyed shall have been constructed by a corporation organized pur- suant to the general laws of this state, and the site upon which the same was constructed, together with the ap- proaches thereto, shall be the property of such corpora- tion, it shall be lawful for the Board of Supervisors of the county in which such bridge was situate to purchase the right of such corporation or the right of whomsoever the site of said bridge and the approaches thereto may belong, ‘provided such purchase can be accomplished upon such terms, as, in the judgment of the Board of Supervisors, shall be just to the public and to its best interests. But if, in the judgment of the Board of Supervisors, ‘such purchase cannot be accomplished upon reasonable terms, then and in that case the said Board or Supervis- ors are authorized, and it may acquire a valid title to premises on either side of the site upon which said bridge ‘stood when so destroyed, provided the title to the same can be acquired upon reasonable terms as to price, and 40 626 THE LAW OF SUPERVISORS. provide for the construction and maintenance of a bridge and the approaches thereto, upon premises other than the site upon which the bridge so destroyed was located, pro- vided the bridge to be constructed can be so located out- side of the old site as not to increase the distance to be travelled to reach either end of such bridge more than five rods. The construction and maintenance of such bridge and the approaches thereto shall be at the public expense, and when completed, shall be free for the use of the whole public, and all persons may use the same as a public or common highway, and the same shall be what is ordina- rily understood to be a free bridge, subject to the rights of the Board of Supervisors of the county in which said bridge is situated; and such Board is hereby authorized to prescribe the weight that may, or may not, be carried over the same, and the rate of speed beyond which any ani- mal shall not be rode or driven, under such penalties for disobedience of the rules or regulations prescribed by the Board, as said Board may deem proper. Laws 1875, chap. 482, § 1, subdiv. 3, asamended by Laws 1881, chap. 439. § 765. Bridges at county lines, expense of, how apportioned. 4. To apportion, as such Board may deem equitable, the expense of the construction of any public bridge (ex- cept in the cases specified in the last preceding subdivision} over a stream or other water forming the boundary line ot counties between the towns at such point, and in all cases, except as herein provided, such counties shall each pay not less than one-sixth of the expense of such bridge, and to authorize any town, on the vote of a majority of the Electors voting at any annual town meeting, or any regular called special town meeting, to appro- priate such sum (to bé raised as other bridge moneys are raised), or to pledge the credit of such town in the man- ner prescribed by law, to wholly construct and maintain or aid in the construction and maintenance of any bridge outside the boundaries of the town or county, or from or within the boundary line of any town into another town or county, but forming a continuation of highways HIGHWAYS AND BRIDGES. 627 leading from such town or county and deemed necessary for the public convenience. Laws 1875, chap. 482, § 1, subdiv. 4, as amended by Laws 1886, chap. 126. § 766. Bridge between two counties, expense of, how appor-. tioned. 5. To provide for the care, maintenance, preservation and reparation any draw or other bridge (except on the Hudson River below Waterford and on the Kast River, or over the waters forming the boundaries of this state), crossing a stream which forms at the point of crossing the dividing line of counties or of towns, and the main- tenance, care and preservation of which bridge is by law a joint charge on such counties, or on such towns, or on the towns in which such bridge may be situated ; and to severally apportion, as such Board may deem equitable, the charge and expense for such maintenance, care, preservation and reparation, on the towns respectively lia- ble therefor, or on the respective counties when liable ; but when such bridge shall span any portion of the naviga- ble tide-waters of this state forming at the point of cross- ing the boundary line between two counties, such expense shall be a joint and equal charge on the two counties in which the same is situated, and the Board of Supervisors in each of such counties is hereby authorized and directed to apportion such expense among the several towns and cities in their respective counties, or upon any or either of such towns and counties as in their judgment may seem proper, provided, however, that no town or city not immediately adjacent to such waters at the point spanned by such bridge, shall be liable for any larger proportion of such expense, than the taxable property of such town or city bears to the total amount of taxable property of such county. But no such bridge shall be constructed unless the same is authorized by a resolution adopted by a majority of the Board of Supervisors in each of such counties. Jbid., subdivision 5, as amended by Laws 1880, chap. 320. §'767. To authorize towns to borrow money for bridges. 6. To authorize any town or towns liable or to be made 628 THE LAW OF SUPERVISORS. liable to taxation for the erection, care, repair and main- tainance, in whole or in part, of any bridge (except on the Hudson River below Waterford, and on the East River, or over the waters forming the boundaries of the state) to erect, repair and maintain the same, and to borrow such sums of money, in the manner provided in subdi- vision twenty-nine of this section, as may be necessary for the purposes of such erection, repair and maintain- ance, and to pay any debt incurred in good faith by or in behalf of such town or towns for such purpose, ' before or after the passage of this act. But only on application of town.] But no authority shall be exercised under this subdivision, except upon the application of a town liable to be taxed for such pur- pose, to be made by vote of a majority of the Electors thereof voting at a regular town meeting, or at a special town meeting called for the purpose, or upon the ap- plication of the Supervisor, by and with the consent of the Commissioner of Highways, Town Clerk and Justices of the Peace of such town. Certain bonds declared valid.] If any town, at a reg- ular town meeting held between the first day of Febru- ary, eighteen hundred and seventy-five, and the passage of this act, shall have elected Commissioners for the purpose of building a bridge and providing money to pay for the same by the issuing of bonds or otherwise, such bonds, not exceeding the amount authorized at such town meeting, are hereby authorized and declared valid ; but said bonds shall not be sold or otherwise disposed of for less than par. Tax to be levied.| And the Board of Supervisors shall levy a tax on such town for the payment of such indebt- edness at such times and in such amounts as may be nec- essary to meet the obligations incurred by said Commis- sioners in pursuance of instructions given by such town at the time of electing said Commissioners. Laws 1875, Counties TO Pay For BRIDGES. 629 chap. 482, § 1, subdivision 6, as amended by Laws 1885, chap. 451, § 1. Tax to be levied to pay borrowed muney. 29. To author- ize any town to issue its bonds and borrow money thereon for a term not exceeding twenty years, for any purpose specified in subdivisions six, seven, twenty and twenty- three of this section ; but every act of such Board of Su- pervisors authorizing such loan shall provide for the im- position of taxes to pay the sum in equal yearly install- ments, with the interest thereon within the time specified in this subdivision. Laws 1875, chap. 482, §1, subdivision 29. § 768 Counties to pay part expense of bridges over streams ete., forming boundaries. Each of the counties of this state shall be liable to pay for the construction, care, maintenance, preservation and repairs 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 construct- ion, care, maintenance, preservation and repair. Laws 1883, chap. 346, § 1. § 769. Commissioners of Highways to deliver to Supervisor statement of expenses. 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 Supervisor of said town, on or before the first day of November in each year a statement 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. Ibid., § 2. § 770. Supervisors to levy tax to pay county’s proportion. It shall be the duty of the Supervisors 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 thereof ; and it shall 630 THE LAW OF SUPERVISORS. 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 towards the payment of such expense. Laws 1883, chap. 346, § 3. § 771. Supervisors ma yelect to pay more than one-sixth of the expense. © Should the Board of Supervisors of any county to which such statement is presented, consider it equi- table and just that such county should bear a larger proportion than one-sixth part of such expense, it may, in its discretion, levy a larger amount on such county for such purpose, to be applied in the manner aforesaid, 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. Ibid., § 4. ; § 772. Division of expense between towns and counties. The intent and purpose of this act is to provide that the towns in which any free public bridge over the 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. Ibid., § 5. § 773. Not to apply to Westchester and New York. The provisions of this act shall not apply to bridges between the County of Westchester and the County of New York. Jbid., § 6. § 774. Repealing clause. Allacts 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 PLank Roaps anp Roap DIstricts. 631 such expense already incurred under the provisions of law heretofore existing. Laws 1883, chap. 346, § 7%. § 775. To authorize towns to purchase plank roads, turnpikes ete. 7. To authorize any town or towns, when application shall be made therefor by a vote of the majority of the Electors voting on the question at any annual or duly called special town meeting, to purchase, and any com- pany owing the same, to sell, the whole or any part of any plank, macadamized or turnpike road, or any toll bridge in such town or towns, or the franchises thereof, for free public use, and to determine the proportion of expense proper to be borne by each town, where there shall be more than one town applying for this purpose. Laws 1875, chap. 482, § 1, subdiv. 7. § 776. Road districts. 8. To authorize the consolidation in any town of two or more of the established road districts therein, and the division of any established road district into two or more; and to constitute the territory of any incorporated village into a separate road district ; and to provide for the elec- tion or appointment of Overseers of Highways in such districts ; and prescribe the manner in which the highway labor assessed and highway taxes collected in such con- solidated or separate districts, shall be expended and accounted for, except that whenever an incorporated village shall constitute a separate and independent road district, the commiissioners or superintendents of streets, or officers of said village, by whatsoever title or name called, whose duty it shall be to control, superintend and repair the streets therein, shall be the Overseers of High- ways in said district. Jbid., subdivision 8, as amended by Laws 1876, chap. 258. $1777. To provide for grading streets beyond city limits. 9. To authorize in any county containing an incorpo- rated city of one hundred thousand inhabitants or upward, when any territory within such county and beyond the limits of such city has been mapped out into streets and 632 THE LAW OF SUPERVISORS. avenues in pursuance of law, the establishment of a plan for the grades of such streets and avenues, the laying out, opening, grading, construction, closing and change of line of any one or more of them, to provide for the estimation and award of the damages to be sustained, and for the assessment on property intended to be bene- fited thereby, and fixing assessment districts therefor, the levying, collection and payment of the amount of such damages, and of all other charges and expenses to be in- curred, or which may be necessary in carrying out the provisions of this subdivision ; but such last named pow- ers in regard to laying out, opening, grading, construction and change of line of such streets or avenues, or such provisions for defraying the expense thereof shall only be exercised on the petition of the property owners who own more than one-half of the frontage on any such street or avenue, or on the certificate of the Supervisor, Justices of the Peace and Commissioners of Highways of the town, or two-thirds of such officers, that the same is, in their judgment, proper and necessary for the public interest, or in case the said streets or avenues, in respect to which such action is proposed to be taken, shall lie in two or more towns, or a like certificate of such town officers of each of said towns, or of two-thirds of all of them ; provided, however, that before proceedings to. make any such certificate, the said officers, or such num- ber of them as aforesaid, shall give ten days’ notice, by publication in one of the daily papers of said county and by posting in six public places in such town, or in each of such towns, of the time and place at which they will. meet for the purpose of considering the same, at which meeting the public and all persons interested may appear and be heard in relation thereto; and provided that no such street or avenue shall be laid out, opened or con- structed upon or across any, lands heretofore acquired by the right of eminent domain, and held in fee for depot purposes by any railroad corporation, or upon or across any lands now held by any existing corporation formed for the purpose of improving the breed of horses, without the consent of such corporation; and provided further HIGHWAYS AND BRIDGES. 633: that none of said town officers shall be entitled to charge any compensation for their services under this act, and no. charge shall be made against the town or any of the prop- erty therein for the expense of the publication of the notice herein required. The provisions of this section shall not apply to the Towns of Flatbush and NewLotts, in the County of Kings. Laws 1875, chap. 482, § 1, sub- division 9,as amended by Laws 1881, chap. 554. § 778. Width of highways. 10. To authorize the laying of highways of a greater or less width than is now required by law, and to alter by increasing or diminishing the width of highways now in existence. Jbid., subdiv. 10, as amended by Laws. 1876, chap. 257. § 779. Surveys and records of highways. 11. To authorize and direct the Highway Commissioner or Commissioners of any town to cause survey to be made. at the cost of the town of any or all highways in such town, and to make a complete and systematic record thereof, or to revise, collate and re-arrange existing rec- ords of highways and to correct and verify the same by new surveys, and to establish the location of highways by suitable monuments whenever such Commissioner or Commissioners may deem expedient. Such records so made or revised, corrected and verified, shall be de- posited with the Town Clerk of such town and shall thereafter be the lawful records of the highways which thev describe, but shall not affect rights pending in any judicial proceedings commenced prior to the deposit with the Town Clerk of such new or revised records. Jbid., subdiv. 11. § 780. Non-resident highway tax. 12. Upon the application of the owners representing a majority in value (as shall be ascertained from the last. annual town assessment rolls) of the real estate lying along the line of any highway laid out through unim- proved lands, to appropriate the non-resident highway tax on the lands lying along said line, for the improvement 684 Tue LAW OF SUPERVISORS. of such highway under the direction of a Commissioner or Commissioners to be appointed by the Board of Super- visors. But this provision shall not apply nor interfere in any case where the same object is provided for by any special law passed prior to the first day of January, one thousand eight hundred and seventy-five. Laws 1875, chap. 482, § 1, subdiv. 12. §'781. Use of abandoned plank and turnpike roads—highways and bridges. Such Boards of Supervisors shall have power to provide for the use of abandoned turnpike, plank or macadam- ized roads within any town, as public highways ; and for the improvement of any public highway laid out in pursuance of law; and for the location, erection, repair or purchase of any bridge, except over navigable streams; and for the apportioning the expense of any public road or bridge upon such towns as may be just ; and for the borrowing of money by any town or towns or by the county, for the purpose aforesaid ; or for general purposes in anticipation of taxation for such purpose authorized by law: but jurisdiction in the cases aforesaid shall not be exercised without the assent of two-thirds of all the members elected to such Board, to be determined by yeas and nays, which shall be entered on its journal ; and no special ordinance, relating to any onetown or ward only, shall become operative unless it shall receive the affirma- tive vote of the Supervisor representing such town or ward. Laws 1869, chap. 855; § 2. The provision requiring the affirmative vote of the Su- pervisor of the town or ward for a special ordinance, has no reference to the first section of this act. People v. Tompkins, 64 N. Y. 53, reversing 8. C. 6 Hun, 299. The Board of Supervisors of Queens County passed a resolution providing for the grading, regulating and mac- adamizing of a portion of a public highway known as Jackson Avenue, situated in the Town of Newtown ; and directing that the cost of the improvement, not exceed- ing $30,000, should be assessed, $12,000 on Newtown, $8,000 on Town of Flushing, and $10,000 on Town of HIGHWAYS AND BRIDGES. 635 North Hempstead. The highway passed through all of ‘these towns. The action of the Board was sustained. People v. Supervisors of Queens Co., 48 Hun, 324. § 782. To regulate tolls on roads, bridges and ferries. Such Boards of Supervisors shall have power, by a like vote of two-thirds, to authorize an alteration, reduc- tion or change of the rates of toll charged or received by any turnpike, plank or gravel road, or other toll road within such county, or by any bridge company or ferry within such county, or, if within more than one county, then by joint action with the Supervisors of such coun- ties, provided such alteration shall be asked for by the directors, trustees or directors of such road, bridge; or ferry ; and provided further, that no increase of toll shall be so authorized unless notice of intention to apply for such increase shall have been published in each of the newspapers published in such county, once in each week, for six successive weeks next before the annual election of Supervisors in such county; and any alteration in rates of toll authorized by any Board of Supervisors may be changed or modified by any subsequent Board, on their own motion, by a like vote of two-thirds of all the members elected to such Board. Laws 1869, chap. 855, § 3. See Laws 1876, chap. 435. § 783. To borrow money for roads etc., in Queens County. The Board of Supervisors of Queens County, in addi- tion to the powers conferred by the first section of this act [761, supra] shall have power at any meeting of which notice is given as hereafter provided, to authorize the Supervisors of any town or towns in such county, on written applications of the Supervisor, Town Clerk, Justices of the Peace and Commissioners of Highways, or a majority of them, of such town, or if more than one town is affected thereby, then of said officers or a ma- jority of them of each of such towns, to borrow such sum of money for and on the credit of such town or towns, as the said town officer may deem necessary to 636 THE Law OF SUPERVISORS. lay out, build, widen, grade, macadamize or repair any road or roads, or to purchase for public use, any plank- road, turnpike or toll road or toll bridge in such town or towns, or to pay any existing debt incurred in good faith by or on behalf of such town, for such purpose, before the passage of this act; and the said Board of Super- visors shall have power to prescribe the form of obliga. tion to be issued on any such loan, and the time and place of payment, the time not to exceed ten years from . the date of such obligation, and the rate of interest there- on not exceeding seven per cent. per annum. And the said Board of Supervisors shall have power, and it shall be their duty from time to time, as the said obligations shall become due and payable, to impose upon the taxable property of such town sufficient tax to pay the said principal and interest of such obligations according to the terms and conditions thereof. In case the bridge or road so laid out, built, widened, graded, macadamized or repaired shall be situated in two or more towns in said county, then the said Board of Supervisors shall have the power to apportion the expense thereof, among such towns in such proportions as may be just. If in the case of the building, widening or improving of any road, or of the purchase for public use of any toll road or toll bridge, the Supervisors of the town or towns in which such road is located shall not be able to agree with the owners of the land required for such improvement, or of such toll road or toll bridge, as to the price to be paid therefor, then the Board of Super- visors of the county shall have power to apply to the Supreme Court of the judicial district in which said county is situated, for the appointment of three com- missioners to appraise and determine the value of the land so required, or of such toll road or toll bridge. Such application and appointment shall be made as in proceedings by railroad corporations to acquire title to real estate under existing statute, and the commission- ers so appointed shall act and make report, and the own- HIGHWAYS AND BRIDGES. 637 ers of such lands or roads or bridges, shall have similar right of appeal, and all incidental proceedings shall be conducted as in such railroad proceeding. When the value of said lands or roads or bridges shall, in such manner, have been finally determined, the said lands or roads or bridges shall vest in the town or towns in which they are respectively located, upon payment by said town or towns of said determined value, to the owners thereof, within six months after such final determination. Upon receiving the written application of town officers herein- before mentioned, the said Board of Supervisors shall publish a notice in every newspaper published in the town or towns affected by such application, which notice shall contain a copy of such application, and shall name a time and place when and where said Board will meet to consider such application. Laws 1869, chap. 855, § 9, as added by Laws 1872, chap. 285. § 784. To lay out highways through unimproved lands. 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, it is hereby authorized to establish separate highway districts in such county, for the purpose of laying out and construct- ing highways through such unimproved and unoccupied tracts of land in such county ; such highway district to be established upon the application 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 construct highways in any such district, and to prescribe their powers and duties, and may also direct the man- ner in which highway taxes shall be assessed, levied and 638 THE LAW OF SUPERVISORS. collected upon the lands embraced in any such district, and likewise the manner of expenditure thereof. The said Board of Supervisors may also authorize com- missioners appointed under this act to borrow money on such terms as said Board shall direct, but not exceeding the estimated arnount of ten years’ highway taxes upon the lands embraced within the district in which such loan is authorized, and may, for the purpose of repaying such loan, set apart and appropriate the highway taxes upon lands in any such district for a period not exceeding ten years from the time of making such loan. Laws 1880, chap. 175; 2 R. S. (Sth ed.) 1045. § 785. Commissioners to expend state appropriations for high- ways. In any case where, by any act or acts of the legis- lature 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 re- ceive, expend and account for said non-resident highway taxes, any balance or remainder so set apart or appropri- ated has not been so received or expended, it shall be law- ful for the Board of Supervisors of the counties wherein said non-resident lands are situated to appoint a com- missioner 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 antic- ipation of the passage of this act are hereby ratified and confirmed. Laws 1879, chap. 275; 2 R. S. (8th ed.) 1045, § 786. May authorize state road to be changed. The Board of Supervisors of any county may au- thorize andempower the Highway Commissioners of any town, to alter, discontinue, widen or narrow any road or Pusiic BUILDINGS. 639 public highway which shall have been laid out by the state, within its boundaries, under the same conditions as would govern their action in relation to public highways that have been laid out by local authorities. Laws 1882, chap. 317. PUBLIC BUILDINGS. § 787. Jails and court houses to be kept in repair. It shall be the duty of the several Boards of Supervis- ors, as often as shall be necessary, to cause the court house and jail of their respective counties, to be duly re- paired, at the expense of such counties ; but the sums ex- pended in such repairs shall not exceed five hundred dol- lars,in any one year. 1 R. 8. 368, § 13 (2 R. S. [8th ed. } 1021). : The sum that may be expended has been increased, see § 789. § 788. Solitary cells. They should also cause to be prepared within the jails of their respective counties, or elsewhere, at the expense of such counties, so many solitary cells for the reception of convicts who may be sentenced to punishment therein, as the [county court] of the county may direct. Ibid., 8 14. § 789. To raise money for court house, jail and Clerk’s office. The Board of Supervisors of each county in this state shall, in addition to the powers now conferred on them by law, have power, at their annual meeting, or when lawfully convened at any other meeting ; 3. To cause to be levied, collected and paid, all such sums of money as they shall deem necessary for rebuild- ing or repairing the court house or jail of their county ; or for building, rebuilding or repairing the Clerk’s office of the county, and to prescribe upon what plan and in what manner the moneys so raised shall be expended. Laws 1838, chap. 318, § 1, subdiv. 3 (2 R. 8. [8th ed.} 1022). § 790. Additional powers of Board. The said Boards of Supervisors shall have power, and they are hereby authorized : 640 THE Law oF SUPERVISORS. 1. Poor houses, sites for. At any meeting thereof lawfully assembled, to purchase for the use of said county any real estate, necessary for the erection of buildings, and for the support of the poor of such county. 2. Sites for other county buildings. To purchase any real estate necessary for a site for any court house, jail, Clerk’s or Surrogate’s office, or other public county build- jngs in said county. 3. Zo locate sites for such buildings. To fix upon and determine the site of any such buildings, where they are not already located. 5. To change sites of county buildings. To remove or designate a new site for any county buildings, when such removal shall not exceed one mile. Except as to the County of New York and Kings this subdivision has been abrogated by Laws 1885, chap. 160; see post, § 794. 6. To cause to be erected necessary buildings for poor houses, jails, Clerk’s and Surrogate’s offices, or other county buildings, and prescribe the manner of erecting the same. 7. To raise money for such purposes. To cause to be raised by tax upon such county any sum of money to erect any of the buildings mentioned in this act, not ex- ceeding five thousand dollars in any one year. The amount here limited has been changed by Laws 1875, chap. 482, § 1, subdiv. 1, see post, § 641. 8. To borrow money for such purposes. To borrow money for the use of such county, to be expended in the purchase of any real estate, or for the erection of any such buildings, and to provide for the payment thereof, with interest, by tax upon said county, within ten years from the date of such loan, in yearly instalments or otherwise. Laws 1849, chap. 194, § 4, subdivisions 1, 2, 3, 5, 6, 7 and 8; 2R.S. (8th ed.) 1024. § 791. Powers conferred by last section, how exercised. None of the powers prescribed in the last section shall be exercised except by a vote of a majority of all the members elected in the county; nor shall such power SITES FOR PUBLIC BUILDINGS. 641 be exercised under the fifth, tenth and thirteenth subdi- visions of said section, without a vote of two-thirds of all the members elected to such Boards. Laws 1849, chap. 194, §5; 2B. S. (8th ed.) 1026. § 792. Resolutions under this act, to be signed and recorded. Every resolution of any Board of Supervisors passed in pursuance of the provisions of this act shall be signed by the chairman and clerk of such Board, and be recorded in the book of miscellaneous records of such county. Ibid., § 7. § 793. Realestate for county buildings. Borrowing money, etc. To purchase or otherwise acquire, for the use of the county, real estate for sites for Court houses, County Clerk’s offices and other buildings for county offices, and for jails and such other places of confinement as may be authorized or required by law, for the safe-keeping and employment at hard labor of offenders, and for the detention of witnesses, and of women and children held for trial for offenses when the punishment prescribed is imprisonment less than five years ; and also, for establish- ments for the care of paupers, idiots, paupers incurably insane, and other indigent persons for whose support the county shall be liable ; to erect, alter, improve, purchase and receive by gift, buildings for any of such purpose, and to make such expenditures on account of such sites and buildings as may be necessary, to borrow money on the county bonds or other county obligations, for a period not exceeding fifteen years, to be paid in annual instal- ments for the purpose specified in this subdivision ; but in all cases where a proposed issue of county bonds shall, with the amount of bonds issued under any previous au- thority, and still outstanding, exceed the sum of one hundred thousand dollars, no additional issue shall be authorized, except in the Counties of Albany, Erie and Kings, unless by the assent of a majority of all the electors of the county voting on the question at an annual election, and subject to the conditions in this act specified, to change the location of county buildings, and to sell or apply to other county use the old sites and buildings in 41 642 Tur Law OF SUPERVISORS. cases where the location may be so changed, and if sold, to apply the proceeds toward the payment of obligations incurred for new sites and buildings, and in the case of a change in the location of a county court house, to make one or more jury districts, and to make such regulations in respect to the holding of terms of courts as shall be necessary by reason of such change. Laws 1875, chap. 482, §1, subdiv. 1, as amended by Laws 1881, chap. 570, ; 2R. 8S. (8th ed.) 1035. As to changing sites of county buildings see post, 8§ 794-797. Under this subdivision it is not indispensable that the Board should purchase a site and then erect a building thereon. If the county owns real estate with an appro- priate building thereon, it may, under the said act, ap- propriate a part of such building to be used as a jail. Roach v. O’Dell, 33 Hun, 320. It is not essential that the jail should be acquired and established in such a building by an express enactment of the Board ; it is sufficient if the part of the building used for that purpose be recognized as a jail by the acts and resolutions of the Board. 67d. Boards of Supervisors may take and hold the fee of lands acquired for sites of county. buildings. Trustees of Havana v. Supervisors of Schuyler, 5 Thomp. & Cook, 703; Vaile v. Long Island R. R. Co., 106 N. Y. 283. Or to lease real estate when required. Davies v. Mayor, etc., of New York, 83 N. Y. 207. ‘ Changing sites of county buildings. § 794. Petition for change of site. Twelve or more resident freeholders of any county may petition the Board of Supervisors of such county for the change of site of any county building or build- ings. The petition shall describe the building or build- ings, 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 presented to the Board of Supervisors of such county at the next annual meeting, shall be printed at CHANGING SITES OF CouNTY BUILDINGS. 643 least once in each week for six weeks immediately pre- ceding such annual meeting, in two newspapers in said county. Laws 1885, chap. 160, § 1. § 795. Proceedings on such petition. 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 resolution for the removal of the site of the build- ing 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 res- olution, 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 consecutive weeks immediately preceding such general election. Such resolution and notice shall be published accordingly. Ibid., § 2. § 796. Question, how submitted to vote. The question of the removal of the site of such build- ing or buildings shall thereupon be voted upon by the electors at such general election. The ballots in favor of such removal shall bein this form: ‘‘In favor of the re- moval 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 build- ings.) If two-thirds of all the ballots cast shall be in favor of the removal of the site of such building or build- ings, 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 next section. Ibid., § 3. § 797. Old site to be used until new one is provided. Notwithstanding any vote by a Board of Supervisors 644 Tue Law oF 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 build- ing or buildings upon the new site have been provided and accepted by the Board of Supervisors. Laws 1883, chap. 160, § 4. § 798. This act not tointerfere with special laws. In any case where a special law shall have been passed, prior to the passage of this act, providing for the pur- chase or sale of any site, or the location, erection, pur- chase 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. Jbid., § 5. § 799. New York and Kings Counties. The Counties of New York and Kings are hereby ex- empted from the provisions of this act. Jbid., § 6. § 800. Repeal of conflicting laws. All acts and parts of acts providing for the removal of the site of any county building or buildings are hereby repealed. Ibid., § 7. § 801. Town and village halls. To authorize any town, when application shall be made therefor by vote of a majority of the electors voting on the question at any annual or duly called special town meeting, and any village when similar application shall be made by a vote of a majority of its tax-paying elect- ors voting on the quéstion at a duly called special meet- ing, to purchase a site for a town or village hall, and to purchase or erect a building for such hall, and to raise money as may be necessary, from time to time, for the care, preservation and improvement of such hall. Laws 1875, chap. 482, § 1, subdv. 20 (2 R. S. [8th ed.] 1040). Upon the application of certain tax-payers of the Town. of New Utrecht, the Board of Supervisors ordered a spe- cial town meeting ‘‘to consider and decide the question of purchasing a site for a town hall.” Ata meeting held in pursuance of this order, a resolution was adopted “that the question be determined by ballot of the votes SALE OR LEASE oF PUBLIC BUILDINGS. 645 of this town meeting, whether a site shall be purchased for a town hall, and a building be purchased or erected for such hall,” etc. Upon the return of an affirmative vote on this resolution to the Board of Supervisors, au- thority was given to the town to purchase the site and erect the hall and to borrow money for that purpose. This was held to be a sufficient compliance with above statute. Bergen v. Gubna, 10 Hun, 11. The power conferred by this section is not restricted by Laws 1847, chap. 197, and Laws 1849, chap. 157, author- izing the erection of a town hall by the said town, and limiting the amount to be expended therefor. Ibid. § 802. Sale or lease of county property. The said Boards of Supervisors have power, and they are hereby authorized ; 4. To authorize the sale or leasing of any. real estate belonging to such county, and prescribe the mode in which any conveyance shall be made. Laws 1849, chap.. 194, § 4, subdv. 4; 2 R. S. (8th ed.) 1024. § 803. Lease buildings to Grand Army Posts. Any county, city, town or village in the State of New York, is authorized to lease or grant the use of, for a period not exceeding five years, to any post or posts of the Grand Army of the Republic, or other veteran or- ganization of honorably discharged soldiers, sailors or marines of the late war, any public building or any part thereof belonging to such county, city, town or village, except school houses, in actual use as such, without expense, or at a nominal rent to be fixed by the Board of Supervisors of such county, or the Board of Aldermen of such city, or the Board of Trustees of such village, or the Board of town officers of such town, having charge of such buildings. Laws 1886, chap. 644, § 1, as amended by Laws 1888, chap. 62, § 1. Allacts or parts of acts inconsistent with the provisions of this act are hereby repealed. Laws 1888, chap. 62, § 2. § 804. Soldiers’ monuments. It shall be competent for the electors of any town, at any regular town meeting, or of any county, at any regular 646 Toe Law OF SUPERVISORS. election, to vote any sums of money, to be designated-by a majority of all the electors voting at such town meeting or election, for the purpose of erecting a public monu. ment within such town or county, or in commemoration of any public person or event; but no debt shall be created nor shall any tax be imposed an any town or county for such purpose, unless the same shall have been voted for by a majority of the legal voters of the town or county affected, nor unless the object and expenditure shall be approved of by vote of two-thirds of the Supervis- ors elected in such county. The Board of Supervisors may legalize the vote of any town or county for such purpose, and, after such vote, they may raise or authorize the specified sum, or sums, of money to be raised for such purpose, in any of the modes provided for by law for raising moneys for towns or counties. All moneys expended by any town, for the purposes authorized by this section, shall be expended under the direction of the Supervisor, Town Clerk and Justices of the Peace of such town, or a majority of them, or by a commissioner or commissioners for that purpose appointed by such town officers, or by a majority of them. If the monument to be erected shall be a county monu- ment, then the money to be expended therefor shall be under the control of a commissioner or commissioners, appointed by the Board of Supervisors to superintend the erection of such monument; and no town or county officer or commissioner appointed or acting under this section shall receive any compensation for services ren- dered thereunder as such officer or commissioner. The Board of Supervisors of any county shall have power to alter, repeal or amend any resolution or ordi- nance passed under this section, and to stay further ex- penditure upon any monument within such county, being erected at the expense of such county, or any town or towns within such county. Laws 1869, chap. 855, § 4 (2 R. S. (8th ed.] 1031). QuoTa OF STATE TAXES. 647 $805. To repair, etc., monuments. The Boards of Supervisors of the several counties of the State of New York are hereby authorized and em- powered 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 last war of the rebellion, and for repairing and remodeling .such monu- ments. Laws 1886, chap. 173. TAXES. § 806. Quota of state taxes, how ascertained. After the State Board of Equalization have equalized the taxes as between the different counties of the state, a statement of the amount of assessment for each county, as fixed by the Board of Equalization, shall be certified by said Board and deposited in the office of the Comp- troller as soon as completed, and before the tenth day of October in each year. The Comptroller shall imme- diately ascertain from this assessment, the proportion of state tax each county shall pay and send a statement of the amount by mail, to the County Clerk, and the chair- man and clerk of the Board of Supervisors of each county. If the name or residence of the chairman or clerk of the Board of Supervisors shall be unknown to the Comptroller, he may enclose such statement in an envelope addressed to him by his name of office, and directed to the county town of the county. The Clerk shall file the statement received by him in his office, and immediately send a copy thereof to the chairman of the Board of Supervisors of the county. Laws 1859, chap. 312, $8; 2B. 8. (8th ed.) 1109. $807. Board to levy state tax. The amount of state tax which each county is to pay, so fixed and stated by the Comptroller as aforesaid, shall be assessed by the Supervisors or other officers authorized to make the assessment of state taxes in the tax-roll for the calendar year, in and for which the same shall have been ascertained and stated by the Comptroller as afore- 648 THE LAW OF SUPERVISORS. said, and shall be included in and collected by the annual collection of taxes in the several counties, in the manner prescribed by law; and if the Board of Supervisors or other officers authorized to make such assessment shall neglect or refuse to include and assess such tax, or any part thereof, in said assessment roll, then the Comptroller of the state may immediately proceed by mandamus before any court having jurisdiction, to compel the Board of Supervisors or other officers required to make such assessment, to do the same or make a new assess- ment for the same, which shall be collected as provided for the collection of other taxes. Laws 1859, chap. 312, § 9, as amended by Laws 1874, chap. 351, §1. § 808. To levy county taxes. The moneys necessary to defray the county charges of each county, shall be levied on the taxable property of the several towns in such county, in the manner prescribed in the thirteenth chapter of this act. And in order to enable their respective County Treasurers to pay such contingent expenses as may become payable from time to time, the Board of Supervisors of the several counties shall annually cause such sum to be raised in advance, in their respective counties, as they shall deem necessary for that purpose. 1R. S. 386, § 5(2 R. S.[8th ed.] 1079). § 809. Collection of taxes. The said Boards of Supervisors shall have power, and they are hereby authorized ; 12. To extend and determine by resolution at their an- nual meeting the time when each Collector in said county shall make return to the County Treasurer ; but such time shall in no case extend beyond the first day of March then next. Laws 1849, chap. 194, § 4, subdivision 12. Under certain conditions the County Treasurer may ex- tend time of collection of taxes until May Ist. Laws 1885, chap. 10, asamended by Laws 1885,chap.32, see ante,§ 573. § 810. Extension of time for collection of taxes. The Board has power to authorize the County Treasurer to extend the time for the collection of state, county and town taxes, in any town or ward, to a period not beyond TAXATION OF Docs. 649: the first day of April in any year. But no extension shall be permitted in any case until the Collector or receiver of taxes of the town, city or ward in which such extension shall be asked, shall pay over to the County Treasurer all the taxes collected by him, renew his bond to the Supervisor, with such security as the said Supervisor shall approve and furnish evidence, by his oath, and such other competent testimony as such Treas- urer shall require, that he has been unable for cause stated, to collect all the taxes within the time required by his warrant. Laws 1875, chap. 482, §1, sub. 13; 2 R. 8. (8th ed.) 1039, See note to previous section and § 572. § 811. Taxation of dogs. To impose a tax on dogs within the several towns for the purpose of providing means thereby to pay damages done to sheep by dogs, and make proper provisions for the enforcement of the payment of such tax. Jbid., subdv. 14. § 812. Tax to pay loans. To provide for the assessment, levy and collection, in the same manner as other town and county taxes are as- sessed, levied and collected, of any charge which may be incurred by any town, or by the county at large, under the provisions of this act. Ibid., subdv. 30; 2 R. 5. (8th ed.) 1041. Subdivisions 31, 32 and 33 were repealed by Laws 1885, chap. 270. § 813. May legalize irregular proceedings of towns and town officers—correct certain errors in assessments—re- fund illegal taxes. The Board of Supervisors of any county, except New York, Kings and Albany, may, by a two-thirds vote 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 like vote to legalize the irregular act of any town of- ficer, performed in good faith, and within the scope of his authority, and also to correct any manifest clerical or 650 Tue LAW OF SUPERVISORS. 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, con- firmation or review ; and it may refund to any person the amount collected from him of any tax, illegally or im- properly assessed or levied. In raising the amount so re- funded, 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 consideration the por- tionof state, county, town and ward tax included therein, and the extent to which each town or ward has been benefitted thereby. Laws 1869, chap. 855, § 5, as amended by Laws 1885, chap. 326. Van Antwerp v. Kelly, 50 Hun, 518. See notes to this section, ante, § 540. From the case of the Matter of Douglas, 48 Hun, 318, it would seem that the attorneys had not discovered that the provision contained in this section as amended in 1871, giving the County Judge authority to make recom- mendations, had been repealed by the amendment made in 1885. SALARIES. § 814. To fix salaries of county officers. To fix, subject to the limitations of section fifteen, ar- ticle six of the Constitution, the salaries and per diem al- lowance of county officers whose compensation may bea county charge, and which shall not be changed during the term of office of such officers respectively, and to pre- scribe the mode of appointment and fix the number, grades and pay of the deputies, clerks and subordinate employes in such offices. Laws 1875, chap. 482, § 1, subdv. 2; 2 R. S. (8th ed.) 1035. . This section did not confer authority on the Board to change the salary of a Surrogate, which had been fixed by Laws 1872, chap. 767. Spring v. Wait, 22 Hun, 441. The authority here conferred to fix the number, grades and pay of deputies, clerks and subordinate employes in the county offices, applies only to those officers which, by pre-existing laws, were entitled to a clerk, and that the appointment by a Board of Supervisors of a clerk for a SALARIES OF CouNTY OFFICERS. 651 Coroner was not authorized by this section. People v. Gallup, 96 N. Y. 628, affirming S. C. 30 Hun, 501. This section only authorizes the Board to prescribe the mode of appointment and fix the number, grade and pay of persons, such as deputies, clerks and messengers, who might be needed by such of the county officers as are re- quired to keep public offices, and that the assignment of aroom for the use of a county official—a Coroner, did not make it a ‘“‘county office” within the meaning of this section. Jbzd., 30 Hun, 501. Where by resolution the Board of Supervisors fixed the number and compensation of the District Attorney and his assistants, and subsequently failed to levy a sufficient sum to pay the clerks the full salary as fixed, and the District Attorney scaled down salaries to come within the sum appropriated, and a clerk accepted appointment and received the reduced salary and subsequently sought to recover the difference between what he received and the salary as fixed by the Board. It was held that he could not recover. People v. Supervisors of Kings Co., 88 Hun, 373, affirmed 105 N. Y. 180. § 815. Salary of County Treasurer. Every County Treasurer hereafter elected or appointed shall receive as compensation for his services an annual salary, to be fixed by the Board of Supervisors. He shall not receive to his use any interest, fees or other compensation for his services, except in proceedings for the sale of lands for unpaid taxes as may be now pro- vided by law. It shall be the duty of such Board to fix the salary of any Treasurer hereafter elected at least six months before his election, and such salary shall not be increased nor diminished during his term of office ; and no County Treasurer shall purchase or be directly or indirectly interested in any purchase of any claim what- ever against the county of which he is the Treasurer. Laws 1877, chap. 436, § 5; 2 R. 8. (8th ed.) 1054. § 816. Clerks and assistants to County Treasurer. The Board of Supervisors of any county may authorize the employment, by the Treasurer, of such clerk or clerks 652 Toe Law OF SUPERVISORS. - and other assistants, as may be deemed necessary by such Board, the compensation to be determined by such Board. Laws 1877, chap. 486, § 6. § 817. Treasurer may retain fees for benefit of county. Nothing in this act shall be construed as preventing the Treasurers of the several counties of this state, in which the Treasurer is a salaried officer, from retaining for the benefit of their said counties, respectively, the same compensation for receiving and paying the money belonging to the state every year, as that now allowed by law, where such Treasurer is not a salaried officer, and the Comptroller is hereby authorized to allow to the said Treasurers, for the benefit of their respective counties, on state taxes hereafter received and paid over by them, where not already allowed, the compensation now al- lowed by law where such Treasurer is not a salaried of- ficer. JIbid., § 10, as added by Laws 1880, chap. 233. See Supervisors of Monroe Co. v. Otis, 62 N. Y. 88, and People v. Supervisors of Westchester Co., 73 N. Y. 173. § 818. Counties exempted. Nothing herein contained shall apply to the Counties of Sullivan, Putnam, Greene, Monroe, Onondaga, Co- lumbia, Seneca, Essex, Delaware, Cortland, Madison, Oswego, Rensselaer and Herkimer. JIbid., § 11, as amended by Laws 1886, chap. 673, § 2. PENALTIES IN TOWNS. § 819. Application of penalties in towns. 15. To direct the payment, by Justices of the Peace, of all fines and penalties imposed by and paid to such Jus- tices in their respective towns, to the Supervisors of such town, on the first Monday in each month, to be applied by them toward the support of the poor of said towns, or to the Superintendents of the Poor, when the support of the poor is a county charge, and to direct the Justices of the Peace of such town to report the amount of all fines collectea by such Justices, to the Board of Town Auditors on Tuesday preceding the annual town meeting. GENERAL Powers or Boarb. 653 - Laws 1875, chap. 482, § 6, subdv. 15, as amended by Laws 1881, chap. 129; 2 R. S. (8th ed.) 1048. § 820. Preservation of fish and game. 16. 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 waters within the territorial jurisdiction of the county, and to prescribe and enforce the collection of penalties for the violation of any laws or regulations they may make pursuant to the pro- visions of this subdivision. Jbid., subdv. 16. Not applicable to Chautauqua County. See special law for that county. Laws 1885, chap. 556. § 821. Employment of offenders. 1%. To provide for the employment for hire, or in the work of the county, of persons who shall be convicted of drunkenness or misdemeanor or as disorderly persons, or vagrants, or of any crime less than a felony, and who may be sentenced to confinement at hard labor in the county jail; and to contract with the authorities of any other county for the reception into the penitentiary of such county, and the custody and employment at hard labor therein, of any person who may be convicted of any of the aforesaid offenses and sentenced to confinement at hard labor for a term exceeding sixty days. Jbzd., sub- dv. 17. The Superintendent of State Prisons shall not, nor shall any other authority whatsoever, renew or extend any existing or pending contract, or make any new contract for the employment of any convicts in any of the prisons, penitentiaries or reformatories within this state. Laws 1884, chap. 21. § 822. Jail limits. 18. To establish, on the recommendation of the county court, and to alter from time to time as such court shall recommend, the liberties of the county jail or jails for the purposes defined by statute. Laws 1875, chap. 482, § 1, subdv. 18. See Code of Civil Procedure, §§ 146-148. This section by implication repealed the prior statutes 654 THe Law OF SUPERVISORS. conferring the power upon the county courts to change jail limits. Roach v. O’Dell, 33 Hun, 320. Under this section the act of the Board of Supervisors in fixing the jail liberties is a purely administrative act or the exercise of its legislative functions. Ibid. Under the power here conferred the Board may estab- lish jail liberties of greater extent than 500 acres. Ibid. § 823. Special town meetings. 19. To provide for the calling and holding of special town meetings to consider and decide any question upon which the electors of the town may be called to take action, in accordance with the provisions of this act. Laws 1875, chap. 482, §1, subdv. 19. § 824. Town meetings by election districts. 26. Upon the application of any town, duly made by the vote of any annual town meeting, to authorize the annual town meetings in such town to be held by elec- tion districts, and to prescribe the manner in which the town business shall be conducted in such districts, and the results ascertained and recorded. Provided, how- ever, that when the electors of any town in which town meetings are held by election districts shall, by a vote of a majority of the electors of such town, voting at an an- nual town meeting, declare in favor of a return to the former system of holding one poll at town meetings, it shall then be the duty of the Board of Supervisors, upon being furnished with an official copy of such action of said electors, to restore the former system of holding one poll only at town meetings therein, but such change shall not be made oftener than once in five years. bid., sub- dv. 26, as amended by Laws 1878, chap. 285. §825. Village fire apparatus. 21. Upon application, based on the vote of a majority of the tax-paying electors voting on the question, at a special election duly called for the purpose, to authorize any incorporated village, whose charter does not give suf- ficient power, to purchase apparatus for the extinguish- ment of fires, to provide by lease or purchase, suitable GENERAL POWERS OF BOARD. 655 places for the safe keeping of such apparatus, and to bor- row money on its corporate bonds, when necessary, to pay for the same, and for the purposes specified in subdi- visions twenty and twenty-three of this section, and also to impose taxes for such purposes, and to re-imburse loans contracted therefor, with annual interest thereon, in the same manner as other taxes for general village purposes are imposed and collected. Laws 1875, chap. 482, §1, subdv. 21. § 826. Fire districts. 34. To establish a fire district in any unincorporated village in this state, and to authorizesuch district to pro- cure a supply of water, and to purchase apparatus for the extinguishment of fires therein, upon the petition duly verified and signed by more than one-half of the taxable inhabitants of said district, whose names appear upon the last preceding assessment roll of the town in which such district is located, as owning or representing more than one-half of the taxable property of the proposed district ; and to provide for the assessment, levy and collection of the cost thereof upon such district, in the same manner, at the same time, and by the same officers as the taxes of the town in which such village is located are assessed, levied and collected. Jbid., subdv. 34, as amended by Laws 1885, chap. 439. CEMETERIES. § 827. Acquisition of lands for—sale of lands. 22. To authorize the proper authorities of any incorpo- rated cemetery association, or trustees owning or con- trolling cemetery lands outside of any incorporated city, to purchase or otherwise acquire additional lands for cemetery purposes, and to sell and convey lands owned by such association or trustees and not needed for such purposes, and to appropriate the proceeds of such sale to the improvement, embellishment or preservation of such cemetery, including buildings, fences and other erections thereon, and the approaches thereto, and to the payment of the purchase money of real estate contained in such cemetery. Laws 1875, chap. 482, § 1, subdv. 22. 656 THe LAW OF SUPERVISORS. § 828. Improvement of lots in—removal of remains. 23. To authorize, on application, in the case of a town, of the Supervisor, Town Clerk and Justices of the Peace of such town, or of a majority of such officers, and in the case of a village, the Board of Trustees of such village, any town or village owning or having the legal super- vision of a cemetery lot, to enlarge, newly fence, or otherwise improve the same, and in cases where, in their judgment, such removal shall be proper, to authorize the removal of interred bodies to proper cemetery grounds. But no such removal of bodies shall be made in any case, except after at least thirty days’ personal notice, or where said notice cannot be given by reason of the non- residence of the party to be notified, a publication in the newspaper published nearest to the place of burial of such bodies, to the representatives of the persons whose bodies are proposed to be removed, if there be such representatives known, of the intention to remove such bodies. And such representatives shall be allowed not less than thirty days to remove such bodies. Provision shall also be made that the bodies so removed, shall each, when distinguishable, be inclosed in a separate box or coffin, and that every monument, headstone, foot- stone, slab, board or other designation or distinguishing mark, shall be carefully removed and properly placed with the body with which it is connected, and properly set up at the time of the interment of such body, and members of the same family shall be placed in contigu- ous graves. Laws 1875, chap. 482, § 1, subdv. 23. § 829. Sale of abandoned lots in cemeteries. 24. To authorize any town, village, society or associa- tion having the title to a cemetery lot from which the bodies may be removed, pursuant to the authority given by the last preceding subdivision, to sell and convey such abandoned cemetery lot, and to appropriate the proceeds of such sale to the payment of the expenses, when neces- sary, of such removal and re-burial, and to the purchase of new cemetery grounds and the payment of obligations incurred on account of purchases for such purpose, made GENERAL POWERS OF BOARD. 657 before such removal of the bodies. When any lands shall be sold and conveyed, pursuant to this and the twenty-second subdivision of this section, they shall be no longer exempt from taxation as cemetery grounds. Laws 1875, chap. 482, §1, subdv. 24. TAX RECEIVERS. $830. May authorize the election of Tax Receivers. 25. To authorize any town which shall make applica- tion therefor, by the vote of an annual town meeting, to elect a Tax Receiver in place of a Collector, to prescribe the mode of the collection of taxes, the security to be given and the commission or other compensation to be allowed to such Tax Receiver for his services. Jbzd., sub- division 25, as amended by Laws 1878, chap. 132, §1. § 831. Designate number of Assessors, Highway Commis- sioners and Overseers of the Poor. 27. To designate, upon the application of any town, duly made by the vote of its electors at an annual town meeting, the number of Assessors of such town as their terms expire, not to exceed three; and the number of Highway Commissioners of such town, not to exceed three ; and the number of Overseers of the Poor of such town, not to exceed two; and when the number of Assessors shall be reduced to one, to increase his com- pensation to an amount not exceeding three dollars per diem. Ibid., subdivision 27, as amended by Laws 1880, chap. 504, § 1. § 832. School districts—sale or exchange of real estate. To authorize Boards of Trustees or of Education in any union free school districts, or Trustees of common school districts established in conformity to the general or to any special law of the state, on the application of a ma- jority of the taxable inhabitants of the district, voting on the question at a duly called meeting, to sell or exchange real estate belonging to the district, for the purpose of improving or changing school. house sites, and to increase or diminish the number of members of said Boards: Jbid., subdivision 28, as amended by Laws 1878, chap. 239, § 1. 42 658 THE LAW OF SUPERVISORS. § 833. School Commissioners’ districts, division of. 36. To divide any School Commissioner’s district which contains more than two hundred school districts and to erect therefrom an additional School Commissioner’s dis- trict ; and when such district shall have been formed, a School Commissioner for said district shall be elected in the way and manner provided by law for the election of School Commissioners. Laws 1875, chap. 482, § 1, sub- division 36, as added by Laws 1881, chap. 543, § 1. § 834. County offices, to fix time of opening and closing. To fix and regulate the time for opening and closing the offices of all county officers who are required by law to have an office, and to keep open the same during the secular days of the week except Sunday and days known and designated by law as holidays. Laws 1875, chap. 489, § 1, as added to by Laws 1882, chap. 118. § 835. Powers conferred (by laws 1875, chap. 482 how exer- cised. The powers hereby conferred (except as stated in sec- tion seven) shall be exercised by Boards of Supervisors at stated sessions, to be fixed by them, or at special ses- sions to be called by a majority of their number, or to be held by adjournment from a previous session. Votes requisite to adopt resolutions. Every resolution proposing a change in the location of a county court house, jail or Clerk’s office, and every resolution propos- ing action under any previous law wherein the assent of two-thirds of all the members of the Board is required, shall require for its passage the assent of two-thirds of all the Supervisors elected to the Board; and every other resolution adopted in pursuance of this act shall require for its passage the assent of a majority of all the Super- visors elected to the Board, to be ascertained by taking the yeas and nays, which shall be recorded in its journal proceedings. Title and contents of resolutions. And every resolution adopted in pursuance of the provisions of the first section of this act, and any previous act conferring legislative GENERAL POWERS OF BOARD. 659 powers on Boards of Supervisors, shall be prefixed by a title concisely expressing its contents, following which shall be a reference to the law or laws, from which the authority to pass the resolution shall be derived, and a statement of the vote,.whether by two-thirds or a major- ity of all, by which it was passed, and in the cases where it is required that the resolution shall receive the assent of the Supervisor of the town to which it applies, the fact whether or not it received such assent shall be also stated ; and all resolutions so adopted shall be numbered in the order of their passage and certified by the chair-- man and clerk, and, within six weeks after the close of each session, published in the newspapers in the county appointed to publish the session laws of the legislature. And an official copy of all such resolutions, duly attested by the signatures of the chairman and clerk and by the official seal of the Board, shall be filed in the office of the County Clerk within one week after the close of any ses- sion, and an exemplified copy of any such resolution under the hand and seal of such County Clerk shall be presumptive evidence of the passage of such resolution, in all the courts of this state. The compensation to be paid for publishing such resolutions shall be fixed by the : Board of Supervisors and paid for asa county charge. Laws 1875, chap. 482, §2; 2 BR. 8. (8th ed.) 1042. This section has wrought very material changes in the mode of transacting business by Boards of Supervisors, and from an extensive examination of printed proceed- ings of Boards of Supervisors of various counties I find that comparatively few Boards make any serious attempt to comply with the requirements of this section. Very serious consequences and extensive litigation may result from the failure to transact business as here required. This section requires that ‘‘every resolution adopted in pursuance of the provisions of the first section of this act, and any previous act conferring legislative powers on Boards of Supervisors shall be prefixed by a title con- ciesly expressing its contents, following which shall be a reference to the law or laws trom which the authority to 660 THe Law OF SUPERVISORS. pass the resolution shall be derived, and.a statement of the vote, whether by two-thirds or a majority of all, by which it was passed, and in the cases where it is required that the resolution shall receive the assent of the Supervisor of the town to which it applies, the fact whether or not it received such assent shall be also stated, and all resolutions so adopted shall be numbered in the order of their passage,” etc. These are the provisions of the statute that are generally wholly disregarded. The following titles will materially assist Supervisors in the performance of their duties under this act. The first is for a resolution to borrow money and to issue bonds. RESOLUTION NO. 1. A resolution to borrow fifteen thousand dollars on the credit of the County of Erie, by the issue of bonds of said county therefor, and to authorize the County Treasurer to issue and negotiate said bonds for the pur- pose of putting an additional story on the city and county hall in the City of Buffalo, New York, passed in pursuance of the provisions of Laws 1875, . chapter 482, and the several amendments thereto, by a vote of a majority of all the Supervisors elected to the Board of Supervisors of Erie County, voting in favor thereof by yeas and nays. Resolved, etc. The second resolution relates to surveying a highway and making a record thereof. RESOLUTION NO. 2. A resolution authorizing and requiring the Commis- sioners of Highways of the Town of Boston, at the expense of said town, to cause surveys of any one or of all the highways in that town, and to make a complete and proper record or records thereof, and to establish the locations of said highways by proper monuments, passed in pursuance of Laws of 1875, chapter 482, section one, subdivision eleven, and the several amendments thereof, by a vote of a majority of all the Supervisors elected to GENERAL POWERS OF BOARD. 661 the Board of Supervisors of Erie County, including the Supervisor from the Town of Boston, voting in the affirmative thereof by yeas and nays. Resolved, etc. There titles can be varied to adapt them to the cases where a two-thirds vote is requested. In voting upon all such resolutions the vote must be taken by yeas and nays, and the.names of the Supervis- ors, and whether voting in the affirmative or negative must be entered upon the record. RESOLUTIONS AUTHORIZING ISSUE OF BONDS. § 836. Officers who issue bonds to give security. In every resolution of a Board of Supervisors author- izing the issue of bonds or other obligations, there shall be contained a provision requiring adequate security in addition to the security now required by law to be given by the officer, or by the Board of officers authorized to issue them, for the faithful performance of his or their duty, in the issue of such bonds, and the lawful applica- tion of the funds arising therefrom, and the full account- ing therefor, and of the funds which may be raised by tax for the payment thereof, which may come into his or their hands annually, to the Board of Supervisors. Laws 1875, chap. 482, § 3. § 837. Contents of such resolutions. In every resolution of such Board, authorizing the issue of any bond or other obligation of debt, the form of the obligation to be issued, the time and place of payment thereof and the rate of interest to be paid thereon, not exceeding seven per cent. per annum, shall be specified, and no bond or other obligation shall be sold by the county, or by any city, town or village, for less than the par thereof. Jbid., § 4. § 838. Statutes in conflict with resolutions, inoperative. Whenever, in the exercise by a Board of Supervisors, of any of the powers conferred by this act, any enact- ment shall be made which shall be in conflict with any any existing statute law of this state, such law or so # 662 THE LAW OF SUPERVISORS. much thereof as shall so conflict, shall, for the purposes of this act, be inoperative in the case or cases provided for by such enactment. Laws 1875, chap. 482, § 6. CONTESTED ELECTION OF SUPERVISORS. § 839. Board may determine cases of contests of election of Sapervisors. County Boards of Supervisors shall also have authority by resolution, to be duly entered in their minutes of pro- ceedings and to be published therewith ; 1. To determine, unless the same shall have been determined by a court having jurisdiction thereof, upon the returns of the proper certifying officers, and upon such other testimony furnished to them as would be competent in a court of law, all cases of contested mem- bership in their respective Boards, and when so deter- mined in any case, the decision shall be conclusive as to the right of the parties to the contest. 2. To make rules of procedure. To make rules for the conduct of their proceedings, to compel the attend- ance of absent members at meetings of their respective Boards, and for the maintenance of order and decorum at such meetings, and to enforce pecuniary penalties, not exceeding fifty dollars for each offense, for the viola- tion of such rules. 3. Selection of newspapers to publish election notices. To determine, after the fifteenth day of November, eighteen hundred and seventy-five, except in the County of Kings, in what newspapers, not to exceed two, the election notices issued by the Secretary of State, and the official canvass, shall be published, and to fix the com- pensation for such publication. But in cases where such publication shall be ordered to be made in two newspapers, such papers shall be of opposite political character, Ibid., § 7. § 840. To divide, change boundaries of, and to erect new towns. The Board of Supervisors of the several counties in GENERAL POWERS OF BOARD. 663 this state, the County of New York excepted, at their annual meeting, shall have power within their respective counties, by a vote of two-thirds of all the members elected, to divide, alter in its bounds, any town, or erect a new town, but shaJl not make any alterations that shall place parts of the same town in more than one assembly district, nor where it is proposed to divide towns into two or more towns, unless upon application to the Board as hereinafter provided, of at least twelve freeholders of each of the towns to be affected by the division, and upon being furnished with a map and sur- vey of the towns to be affected, showing the proposed alterations ; and if the application be granted, a copy of said map, with a certified statement of the action of said Board thereunto annexed, shall be filed in the office of the Secretary of State, and it shall the duty of the Secre- tary to cause the same to be printed with the Jaws of the next legislature after such division takes place, and cause the same to be published in the same manner as other laws are published. Laws 1849, chap. 194, § 1, as amended by Laws 1872, chap. 319; 2 R. 8. (8th ed.) 1023. The question whether a town has been legally erected may be tested in an action in the nature of quo warranto against one claiming to exercise the office of Supervisor of such town. People:v. Carpenter, 24 N. Y. 86. The act of a Board of Supervisors, dividing a town, and forming a new one from a portion thereof, only described the dividing line, held that the uncertainty was cured by the reference in such act to the petition, etc., upon which it was founded and from which it appeared that the new town was to lie south of the line of division, and by proof aliunde that the place named in the act for holding the first town meeting was south of such line Ibid. This statute does not, it seems, require that the pub- lished copy of notice of the application of twelve free- holders for the erection of a new town shall contain names of such applicants. It is sufficient that the notice posted should be thus subscribed. Ibid. An affidavit stating that a notice was left with another person to be posted up, ‘‘ which was done,” construed as 664 THE Law OF SUPERVISORS. a positive averment of the posting. People v. Carpen- ter, 24 N. Y. 86. The act of the Supervisors, is, it seems, one of a legis- lative character in favor of the regularity of which all presumptions are to be indulged. Those who would impeach it have the burden of disproving a compliance with the conditions imposed by law as requisite to the exercise of the power. Ibid. § 841. New town to be named and first annual town meet- ing appointed. Whenever the Board of Supervisors shall erect a new town in any county, they shall designate the name there- of, and time and place of holding the first annual town meeting therein, and three electors of such town, whose duty it shall be to preside at such meeting, appoint a clerk, open and keep the polls, and exercise the same powers as Justices of the Peace when presiding at town meetings, andin case any of the said electors shall refuse or neglect to serve, the electors of the said town present at such meeting, shall have power to substitute some elector of such town, for each one so refusing or neglecting to serve. Notice of such meeting to be given. Notice of the time and place of such town meeting, signed by the chairman or clerk of the Board of Supervisors shall be posted in four of the most public places in said town, by the persons so designated to preside at such town meet- ing, at least fourteen days before holding the same. They shall also fix the place for holding the first town meeting in the town or towns from which such new town shall be taken. But nothing in this act shall affect the rights. or abridge the term of office of any Justice of the Peace or other town officer in any such town, whose term of office has not expired. Laws 1849, chap. 194, § 33. subdv. 15, post, § 845. § 842. To abolish distinction between town and county poor, ete. The said Board of Supervisors shall have power, and they are hereby authorized ; GENERAL Powers or Boarp. 665 10. To abolish or revive the distinction between the town and county poor of such county. 11. To fix the time and place of holding their annual meetings. Laws 1849, chap. 194, § 4, subdivisions 10 and 11. § 843. To destroy wild beasts, thistles, weeds, etc. To make such laws and regulations as they may deem necessary, and provide for the enforcing of the same, for the destruction of wild beasts, thistles and other noxious weeds, to prevent the injuring and destruction 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 provide 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 eighteen hundred and fifty. Jbéd., subdivision 13; 2 R. 8. (8th ed.) 1025. This provision held to be constitutional. Smith v. Levinus, 8 N. Y. 472. In relation to destruction of noxious weeds see ante, 88 117-118. In relation to preservation of fish and game see Laws 1879, chap. 534, and amendments. For tax on dogs and application thereof see ante, § 130. § 844. Reports of county officers. To require any county officer or any other officer whose salary is paid by the county, to make a report under oath to them, on any subjects or matters connected with the duties of their offices: and the said officers. are hereby required to make such report whenever called upon, by resolution of any such Board ; and if any officer neglect or refuse to make such report, he shall be deemed guilty of a misdemeanor. JIbid., subdv. 14. § 845. To determine disputed town lines. ; To fix, establish, locate and define disputed boundary 666 THE LAW OF SUPERVISORS. lines between the several towns in their respective coun- ties, by a resolution to be duly passed by a majority of all the members elected to such Board. A notice of in- tention to apply to such Board to fix, establish, locate and define such disputed boundary line, particularly describing the same, and the time as proposed to be acted upon by such Board, signed by the Supervisor, Town Clerk and two or more of the Justices of the Peace of some one of the towns to be affected by such resolution, shall be published for four weeks successively before the meeting of the Board at which such resolution is to be presented, in all the newspapers printed in such county, if not more than three in number, but if they exceed three in number then in the three having the largest cir- culation in such county. tidecheeee SoS 15 warrant appoining Collect- OP 222 scans eeeeeee see 201 warrant appointing in case of vacancy....-.... -.-. 18 warrant appointing Justice of the Peace --_......- 184 warrant appointing In- spector of Elections.... 185 warrant appointing sealer of weights, etc._..___- 199 warrant appointing fire- MCN. co joctscce eee ace 200 renewal of, for collection of school tax...------- 87 towns, division of, into elec- tion districts._.._._.-- 225 of new towns......_. 227, 229 alteration of districts__.. 226 verification of accounts 524, 582-3 Forest preserve ....-------- 284-6 taxable _-__.---.---- 284-6, 346-9 for local improvements 86, 346-9 Franchises : state tax on__..---------- 391-3 Fulton County: support of poor in._-....-- 716 Funds: misappropriation of. --.-- 940 of highways---.--- 78, 615, 634 Of POOR ceeseess sees sosees 3 want of, no excuse for not auditing accounts.4938, 553 Game Constables: to be appointed _--.-------- 824. costs of, when county eharge ..-..---------- 563 Game and fish : protectors, expenses of, when county charge 564 protection of ...-.----- 658, 822-3 preservation of._..---.---- 823 Gas light companies : 979 Gas light companies— Continued. von property of, taxable..__.. 309 Genesee County : support of poor in _.._.... TAT Gospel and school lots : division of....-....-.-.-_- 83 apportionmerit offunds..._ 83 on division of town _.... 167 shares to be paid to Super- VASOD oe Sectece rete cies ee 83 Supervisor liable for loss of funds of...-.......... 83 powers of, in relation to_ 81-3 Town Auditor’s duties con- cerning .._._-_-.---.-- Governor may remove Co. Treasurer Grand army posts: oe of indigent soldiers, etc lease of public buildings to 198-9, 645 Grand jurors: lists by Supervisors 113, 114, 783-786 certitied by clerk of Board 861 how selected_----..------- 83-4 who eligible...._........- 784 ineligible. _.--_-_.. --.. 784 number, how increased 783-4, 861-2 report of committee__-__-__- 7 selection must be by Board 785-6 in New York County....-- 786 Grievance day : See ‘‘review day.” Guardian ; accounts to be examined by Surrogate --_.-..------ 811 Supervisors may appoint examiner.....-..---- 811 assessment of property held bYcseeecerasies 312, 821, 341 Supervisor to act as, in binding outorphans.-. 144 Health : Boards of ...-------------- 167 of whom composed in Cities: (5.2 ecaeweeoseas 167 of whom composed in villages: 2-52 3ac55 167 of whom composed in TOWNS) cce2-5 weemcece 168 vacancies in, how filled.. 168 meetings of.-..-.------- 169 powers of. .-.---------- 169 to prescribe rules and regulations.... ..--- 173 impose penalties--.---- 174 may appoint physicians 168-9 prescribe duties of health officer -....-- 169 980 PAGE. Health— Continued. . may employ subordi- Natesg ee cS ssscees 173 duties of Boards of, as to contagious diseases_.. 169 as to nuisances-...--.--- 170 registering births, deaths, marriages 171 refusal to obey orders of ..173-4 warrants of arrest may be issued by..-..--------- 173 expenses of .....----------- 176 a town charge. _...---- 176 audit thereof -_--.-...---- 176 health of persons in poor houses xccscigsencsecexs 176 mandamus lies against Board sicncsees ssesnezis 177 Herkimer County : support of poor in... ---- 731 Highway Commissioners : See ‘‘Commissioners of Highways.” Highways: damages for lands taken for, to be audited _.-___._.- 832 when assessment of, conclu- siveon Board _-.. ---- 833 when not conclusive.... 833 only damages for lands actually taken........ 833 mandamus will issue to compel audit-.__-__-_- 833-4 Supervisor liable for false returns to_.._.-...--- 834 Homestead : not exempt from taxation 303 Houses of detention: to be provided_.._......-- 816 in charge of Sheriff_....._. 816 exempt from taxation.... 292 Human remains : removal of__....-...-..-.- 656 Indigent children: Supervisor’s duty to bind OUBs cinch ctiiegiacts eas 144 Idiots: support of, acounty charge 564 expenses on discharge... --. 565 Informal acts: of town officers and meet- ings may be legalized _ 824-5 in Kings County........ 825 Insane: support of __-._....-.. 752, 764 indigent, when to be sent to asylum ___......__. 751-3 proceedings for their sup- POE oc sccesacceseies 52-3 how long to be left there __752-4 may be sent by Superintend- ent of the Poor....... 751 INDEX. PAGE. Insane— Continued. : criminal insane, support of 154-758 soldiers .....--- -.2------- 544 support of, in Duiohess County -...--..-..---. 970 Insolvent railroads : sale oe a in, held by Semecehtamete casas 150 Ins: Bede of Elections: election of.........---.-.- 230 appointiiand to fill vacan- cies ....-.---..-- 185, 231-2 canvass of votes by..-.--.- 235 compensation, a town Charge os2sese.eee2 556, 866 qualifications of ..-..-.--- 282 to correct imperfect re- CUINS = ..-ta. yioeso ki 257 character of corrections they may make-... -.- 258-9 mandamus will issue to compel them toact.... 258 validity of election returns 259 Inspectors of plank roads to be appointed... .._.--- Commissioners of High- ways are............-- 848 Inspectors of vinegar... -.- 152 appointed by Supervisors.. 152 duties of......-...-----.-- 52-4 compensation of....... --- 152 Insurance : of town buildings......... 565 a town charge......-... 565 of county buildings, a coun- ty charge... .....-. Interest: County ‘Treasurers liable POP. cscs ewescesee 797 Interpreters for grand juries 805 Jails : county jails._...--...... 818-814 repairs of._..-...-.-..- 565, 639 furniture for__-_.-.._....- 565 sites for _--......-.. 639, 640 erection of new_..___- 639-640 solitary cells in__........ 639 limits of, how fixed__..- 653 in custody of Sheriff.... 812 physicians for......_... 813 disinfectants for........ 813 rooms for separate con- finement of prisoners.. 814 certain prisoners to be kept separate....... 814-815 Jefferson County: support of poor in.____.. 718-721 Judgments : against county or county officers -....-.2...-.-- 566 are a county charge .... 566 INDEX, Judgmenis— Continued, oe for damages under riot act 562 from defective highways or bridges .__...______ 888 — — may be compromised .875-6 payment (2) ene eee 155 upervisors must levy tax to pay..._...._.. 898-9, 914 when paid by County Treas- WLC ass ecccc: ecveccee 914 against town to be paid by Supervisor, when 155, 899, 900 or town, a town charge : 155, 896 for neglect of town officers not a town charge.... 895 against Commissioners of Highways for defective TORUS ose hata te 888-9 —must be audited._____._. 889 tobe laid- before Supervisors 897, 913 by confession, not con- clusive on Auditors.... 496 after trial on merits, con- clusive __........--..- 497 Superintendent of poor may CONTOSS! = 24 cease 694 Jurors: grand, list of .-113, 114, 783, 786 to be certified by clerk of Supervisors --.-...---.- 861 qualifications of -.-...- 210, 784 compensation of, a county Charge -o.scscess sess a3 566 Supervisors, report of 113, 14, 785 number of_._.---------- 861-2 trial list of, in towns... .204-211 list in cities_.---.-.---.--- 204 list, how made ....... -204-211 filing lists of ..-----.---- 210-211 form of list__-..-..------- 211 who qualified as__.--- 210, 784 disqualified -.....-.-- 206, 784 exempl scecesens-+ sane 207 term of service....---- 211, 212 compensation of_-.-.-.---- 566 a county charge-..------ 566 —Coroner’s. compensation of .-.----- 559 —in actions by and against counties .- ---- 902 —in aotions by and on against towns ------- Jury: ae. list of, 118, 114, 783-786 form of list._----------- 114 compensation of... - 566 triallist of ...----- 204, 205, 212 in cities 204-5 981 PAGE, Jury— Continued. compensation of, a county charge.......-....2... 566 who disqualified... ..... 206 exemptions _.._......__- 207 under special laws.. 208-209 qualifications of... ___. 210 Coroners. compensation of... 559, 935 acounty charge...559, 566 Justices of the Peace: official bond of _--___..-- 62 form of, and filing.__._. 63 duties of, to take oath of of- fice of Supervisor_____ 8 no fee therefor -_.______ 9 appointment of Super- visor .. .....14, 15,16, 17 accept resignation of Su- pervisor -._--------.-- 12 cannot appoint one of their own number.... 14 appointmentof firemen.. 200 a ‘* Collector 201, 202, 469 «6 “ Excise Commissioners. ----_.. 203 control of town house... 198 accounts of, how audited 515-518, 520, 557, 577-8 by whom audited...._-. 517 what to contain_.._..... by Board of Town Au- ditors _. -.-._- 515, 518-520 by Board Supervisors 517, 577-8 form of accounts 519, 520, 580-1 appeals from audits to upervisors .--._-- 515, 517 when to be taken_.516, 517 board Town Auditors, member of-_--.--.. 508, 504 duties as such.---.-.-_-- 503-4 reports by.---.--.---- 578, 579 of fines and penalties 578-9 of commitments 578, 579, 765 fees of, in criminal cases518, 936-7 while holding special ses- sions......-..----- 519, 9387 in assault and battery CASCB in wcmiaciice sae 19, 937 account of, to be rendered 515, 519 for services rendered to the poor__..-.-------- 557 claim for expenses in impeachment ....----- 594 for services rendered the TOWN sceceese src exee 866 actions before, by, 982 INDEX. PAGE. PAGE. Justices of the Peace— Continued. Land—Continued. | against county -------- 902 of corporations, where actions, before, by, or taxed -..--...-------- against towns .--.---- 884 divided by town lines.---. who competent as wit- boundary lines of towns di- nesses and jurors in 884, 902 viding dwelling house 317 Justices of Sessions : divided by county lines 457, 903 compensation of._ -.-. 566, 937 proceedings in such cases in Albany and Columbia 457-458 Counties ...-_--------- 567 on division of county .... -- 876 in Erie County-.-.---- 567 | Laws, publication of, in news- Kings County.------- 567 papers .....--. ....-.- 826-8 Westchester County.. 566 | Leases in fee, how taxed 329, 332 Justification : of sureties in official bonds 21 Juvenile delinquents : conveyance to houses of ref- uge and lunatics to asylums --.. -.----.--- 939 compensation therefor, how xed _....... -------- 939 Kings County : chairman Board Supervis- OPS Wiens ccceeiceneicc 602 clerk Board Supervisors.. 603 tenure of office....----.--- 850 support of poor in _...721, 731 informal acts of officers le- galized _._. .-.. ------ 25-6 election notices, publication OL makers eeeeeree See compensation of Supervis- OVS cc Meine: see Sees as 872 Land: defined, for taxation... _...280-1 where assessed. ---...-- 312-316 vacant by removal of occu- Pant. pccescsece ce 51 of non-residents -....--- 316-321 non-resident defined .... -- 317 of forest preserve, how taxed 6 leased in fee, how taxed 329, 332 occupied by person other than owner___..---.-- 315 eceupied by Indians-.--.--_- 315 taxes assessed on, exclu- Sively 2s-ic2s2ssesce24 316 omitted in assessment cur- rent year__....-- 852-8, 444 omitted in assessment in preceding year..352-3, 443 bid in for county-_-_----..- 485 certificates of such pur- Chases. 2.20.-.525- 5-2 485-6 imperfectly described, tax rejected _.__...._-._-- 478-9 Comptroller may require correct description... 479 Comptroller may require TAPS: Of ecan ck. ao cae, taken for highways-_.._-- 832-4 -of public buildings to G. A. « POSS wee ecace se mame 198-9 Legislation by Boards of Su- pervisors_...-..----- 624-634 Library moneys—disburse- ment of .---.---------- Haan? pees eee es applied to support of poor 9 L ont houses : , exempt from taxation. .--.--- 407 Lists : of Assessors and Collectors 211 ditto for Board of Super- visors of Grand Jurors trial jurors. _-...-- In, Cities. 2s ea cece. 2 of corporations for Comp- troller. -..2 wenn ceen a 120 stock-holders in banks. --- telegraph, telephone and electric light co’s-_----- 379, 380-382 railroad taxes and valua- tions __._-. ---- 379, 380-382 Livingston County: poor law of .._-...--..--- 507-509 reports under._........- 511 Loan Commissioners : to report to Supervisors.... 776 accounts of, to be exam- ined by Supervisors... 776 Supervisor cannot be-_--..- 5 Supervisors may require additional security. -.. Lockport, Town and City : dog law__...----------- Lunatics : cared for by friends or com- mittee ---._...-._--..- when not to be sent to asylum by Supt. of % conveyance of....--...-.- at whose expense____._..- relatives liable for support Ob scas 1. esis ake nau 152-4 when support of, a county INDEX. Lnmatics—Continued. sae charge..__.... 2222.22. 767 property of, taxable in their’ own names.______ 821-2, 341 Madison County: Commissioners of Highways are plank road inspect- OVS! 2266. ua teme sete ae 843 Mandamus: when applicable. __.. 921, 923-925 when writ will be refused_. 929 against Boardof Health.... 177 or members thereof... -._ 177 County Canvassers. .. 258, 276 Inspectors of Election .-... 258 Auditors of accounts - - . .4938-495 Board of Supervisors to compel correct equali- zation......--..-. ---- Board of Supervisors to compel levying taxes 455, Board of Supervisors to compel auditing dam- ages on laying out high- WAYS emcees diem. Somes 833-4 Board of Supervisors for neglecting to levy ---.- 597 Board of Supervisors speci- fying duty to be per- formed .....3ssesee2s ss when without specifying particular duty ---.--- may compel Board to re- convene ._.-------.--- chairman of Board to cor- rect his decision ------- does not lie to compel delivery of books, etc. 35 Assessorstotakefalseoath 364 Auditors to re-audit ac- 400 647 924 927 931 600 COUNTS 33 spose cdclexiones 495 Mayrfect errors : défined and how corrected 354-6, 444-9 of town meeting legalized.. 824 of town officers legalized... 824 Manufacturing Co’s : where to be assessed...314, 376 Maps and surveys : for Comptroller_.....-- -- 482 on division or alteration of towns_..---...--- -.-- 148 of highways.------- ------ 633 of non-resident lands for Assessors... --- 134, 345, 478-8 Meetings: annual, of Supervisors --- - oe special_.__.-.----------- 99 how called__-.-.-------- 599 599 all to be public. --.-------- of County Canvassers 250, 983 Meetings-- Continued. ae . 256, 257 adjourned meetings of.. 257 Boards of Town Auditors. _525-6 Members of Assembly : Electors of........ -...-. 1. -270-2 Mileage : subpoenaing witnesses _... 521-8 Militia: armories for _......-..-__- 778-9 enrollment of._...... _... 782 duty of Supervisors as to... 782 of Board of Supervisors 779 compensation of ___.782-8, 937 Ministers of the gospels : exemption of property from taxation _____.-- 298-9 Misdemeanors : officers guilty of, forfeit office _... -.._ --_. 2... refusal to give official bond 18 Asceneniew slau ahaa 24 Mistakes: in assessments, how cor- rected... .. ....854-6, 364 in assessment rolls how corrected .... __. __-. 440-4 on certiorari......--.--- 416-433 in election returns how corrected__.. --.. .--- 258 in verification of accounts how corrected._.. .... 500 of town officers and town meetings legalized__.. 824 Mobs, riots, ete. : damages done by, county liable for.----- 562, 909-913 — —actions therefor --.-.- 909 costs recoverable, when_._ 911 judgments how collected.. 911 right of recovery how de- feated _-..------------ 911 action against rioters... ---- 913 limitations__.._----------- 913 Moneyed corporations : how taxable....... -. 379, 390 Moneys, etc.: Supervisor to demand, from predecessor ..-..------ proceedings when delivery refused ..---..------- 33-54 accounts of, how kept..73, 74 poor moneys to Overseer not Supervisor. .------ %3 for highways to Commis- sioners of Highways.. 73 when ‘‘moneys are neces- sarily expended” -_..- received from fines and penalties _... -.-. ---- 578-9 corrupt use of public... ..144-145 borrowing, to repair or re- 984 PAGE. Moneys, etc.— Continued. build bridges_..193, 615-634 Monroe County : physicians to be appointed by Supervisors. --.--- 604 support of poor in._----_-- 750 County Clerk a salaried of- PICO Focus sacmeasiene 787 Montgomery County: auditing accounts in, by Su- pervisors ...-.----- 589-590 support of poor in_....--- 750 Monuments : boundaries of state....120, 220 for soldiers ...-.........-- 645 for highways ..-.--.-.--- 633 Municipal corporations : property of, not taxable._. 308 National Guard : armories, etc., for-.--- 568, 779 compensation of---.------ 782 National banks: stock-holders in, how taxa- ble 2s: Sses eee etew oan 384 Navigation companies : taxation of..-_.....------- 376 Newspapers: how designated to publish canvass of votes... -- 656 ditto election notices ..662, 828 ditto session laws_....--..- 821 New York County: assistant District Attorneys salary of District Attorney Magara County: support of poor in...-...- assistant District Attorney in relation to dogs. ...140, Non-resident : lands defined.._....-..--- assessment of lands of 288, 316, 342, assessment rolls as to. 342, moneys of, taxable-_-_-_._.- 288 on capital invested in this state 288 rents due to, how taxed _. 287-8 debts due, taxable___._._. creditors, how taxed agent of such creditors to report to Co. Treasurer 325 how taxed__.....-..-.-- taxes against, how collect- Cdby see Unie 326-327, 455-6 personal property of, when not taxable.--....__-- lands of, to be surveyed 143, 345, 478-9 vacant by removal of oc- cupant __..__-_--..- 349-351 powers of Supervisors as to assessment of___... 317 346 460 INDEX. PAGE, Non-residents— Continued, unpaid taxes of _._.326-7, 455-6, 478 proceedings in relation to 826-7, 455-6 ee taxes illegally assessed... .--.- . 455-6 tax on highways used to im- prove highways... .473, 6383 railroad companiesare not. 316 Supervisors not to discrim- inate against_..--.-... 824 Notary Publi : may administer oath of office to Supervisor. - .- 8 Not eligible : to be Supervisor ......-.-- 4-5 Supervisor in Erie Co., to appointment by Board. 611 to be jurors..-.-... ------ 206 Notice : toSupervisor of hiselection 7 when such notice not necessary.--.---- ---- 6 of elections........-- 228, 275 in case of tie vote.... 603 of special election........ 275-6 of deposit of assessment roll for inspection 355-7, 432 with Town Clerk_._.365, 432 by School Commissioner changing school dis- tricts --...----------- 91 of school district meetings. 95-6 of appeal from audit of town charges... .._. 515, 517 of equalization of taxes.... 405: as to building bridges by towns..__._.. .--.-- 620-623 abolishing distinction be- tween town and county POCbseecewein kee ees 683-4 of meetings of TownAudit- ors unnecessary ..-.--- 526 Noxious weeds, ete.: ‘Supervisors may enact laws for destruction of --_--- 665 duty of Commissioners of Highways cae 108-109. tax to pay for cutting. -._108-109 Oath : of office of Supervisor. -_.- q no fee for taking-_-_-_--.-- 9 form of.__.-......... 9-10, 58 when to be taken_..._..- 7 by Collector ._._........ 57-8 before whom to be taken 8 certificate to accompany 8 to be filed_....-........ (9 by Collector ........-.-- 58 penalty for acting with- INDEX. Oath—Continued. ca out having taken_._.__ 9 of Assessors ___..-..___. 357 clerk of Board of Super- visors may administer 8, 853 as to books when required by successor _..._____. of County Canvassers _. 251 of individual banker as to his capital __-__.._.._. 280 to assessment roll ...___ 362-4 chairman Board of Super- visors may administer 602, 673 do. of committee may... 673 Supt. and Overseer of Poor may _.-_-.--.... 697 Offenders : employment of_____._- 6538, 815 at hard labor._.__._.____- 815 upon the streets____....- 815 contract labor system abol- ISHED | 3.255 cecweeeasc 815 who is a public. officer_-_- 9 that Supervisor may not olden. sage eaney eee qualification for office ___. 4 quate POP sesso 11 upervisor to take oath of 7 when and before whom. . form of oath no fee for administering it 9 tenure of... -.-- -------- 10 of appointee__.-.--.---- 18 resignation of..-. -------- 12 acceptance of_._- .--- ---- 12 removal from____._------- 13 forfeiture of...--.-------- 11 vacancy in_------- ----- -- 13-14 acceptance of another office creates _..-.----- when it does not occur. 17 failure to elect to..-. -.--. 13 expense trying title to, not county charge.------- 594 - county offices opening and closing _.-_ ------ ---- 658 Officers : issuing bonds, to give secur- bye coms saci onset 661 —embezzlement by .--. -- 940 —falsifying or altering DOOKS s.2.0 e206 ween case 940- physically disabled, still en- titled to e, becca a sheet 494 salary of, as fixed must be audited ....------ ---- accounts for services... ---- 500-1 salaries of, how fixed... ---- 650 legalizing informal acts of 49, 824-5 985 PAGE. Officers—Continued. co removal of county officers, when county charge. 569 but not in bribery cases... 569 receiving fines, etc., to re- (POM cee atenee seco cs 817 District Attorney to prose- cute for failure..__.__. 818 county officers to report to Supervisors _.._ _..__. 818 Supervisors may compel re- POM wees ewes cee eee 819 failure to report and pay over amisdemeanor.. 819 when ‘‘ moneys necessarily expended” by._.. 556, 568 before whom to take oath of courts not taxable. .___- 822 of corporations to deliver statement to Assessors. 379 appointed ky Boards of Su- pervisors .-.._ ---_.--- 603-5 town, how designated in summons -__.--------- 894 substitution of successor in actions........---. --- 894 judgments against, when town charges _....---- 896 when not town charges.. 895 to be laid before Super- visors....---.--- ----- 897 executions on judgments against.....-.- ------- 897 actions by tax-payers to prevent waste .....--- 919 Offices : opening and closing of.... 658: Official proceedings : of Board of Supervisors for statelibrary ..--..----- 863 Omissions : of property in assessment roll, corrected_..- ---- 352-3. cannot be considered on equalization.... .----- 397 to give notice of deposit of assessment roll, effect Olvidar tad sloch soc esc 356 in election returns, correc-. tions of ..-.-.--------- 257-9 Omitted : lands to be assessed. ------ 352-3. of preceding year. .----- 443. of current year_..----..- 444 Oneida County: . Board of Equalization in 04, 405 support of poor in........ 700 compensation of District Attorney...-.--- ----- oF compensation of Supervisor 986 PAGE, Onondaga County : support of poor in..---.--- G47 compensation of Supervisors 867 Ontario County : dog law Orders: appointing Collector 14,201, 469 Justice of the Peace -..183-4 Supervisor. -.----- 14,15, 16 formiOf ss2s555cssicenccse 15 town sealer of weights, COijgonsuesessee sessed 199 altering election districts.. 226 dividing town into election districts _.-..------ -- 225 calling school meeting .... 94-6 altering or forming school districts -..-.--------- 89-92 to show cause for delivery of books, etc.....-----47-50 when affidavit of delivery not made.....--.----- 50 in supplementary proceed- ings to collect taxes... 160 Orleans County : support of poor in.---.--- 700 han children : upervisor to act as guard- ian in binding out----- 144 when not to be kept in poor-house -.-...-.--- 699 Oswego County : meetings of Supervisors in, where held __-.------- 599 support of poor in_.....-- 712 compensation of Supervis- OMS Scncaccmemoseiseecieie 873 Otsego County : ee of poor in_.--.... 712 Overcharges : in non-resident taxes, how corrected __.....------ 455-6 Overseers : of highways, return of un- worked highway tax.. 473 form of return_._._-.--- 473 —compensation of_._-.- 938 —number of, how fixed at town meetings._....-- 686 of the Poor to give official OMG te Pauses oot eit 68 form of bond...----.---- 68 when to be given...._-_- 69 to account..-.-..---.- 505-6-9 form of account_.--..- 511 number of, how deter- mined.-.__.-- -....--- 657 may administer oaths .... 697 taxes tobe paid to . 78, 461 funds in hands of ..84-5, 166-7 compensation of .__.-..- 866 when to pay judgment.. 899 INDEX. PAGE, Papers, records, books, etc.: Supervisor to demand of predecessor.... --..--- 32-3 proceedings on refusal to Geliver o2.-56 ssc ees: 32--53 Partition : of town lands ..--..-. -.-- 885 Peach trees : diseased with yellows.... 214 destruction of... ..-- 214, 216 Penalties : for acting without taking oath of office....------ refusing to serve as Su- pervisor__..-.. -...---- manufacturing or selling adulterated wines. ..178-181 neglecting to report poor supported by town 112, 858 neglecting to reporttown debts <2 esissice ceus 115--116 refusing to assist at fires in woods...-- .---.--- 198 —neglect. by Supervisor--....--. 677 or refusal by county officer to report..818, 819 to report amount due non-resident creditors 325 by clerk Board Super- visors to report debts of counties, etc..... 859 violating rules of Boards of Health ....0-..- 2c seu as 174 law asto uniform ballots 235 trespass on town lands._.. 885 Supervisor to sue for....86, 155 moneys collected as, to be reported to Supervisor 817 Supervisors may compel _such report ....-.- -. 819 to be paid to County Treasurer 818 suit to be brought when not so paid neglecting to so pay, a misdemeanor -..- ---- application of such MNONCYS Seyescionsoee aos of penalties in towns 652 to support of poors... 699 Penitentiaries : when liable for support of criminal insane q agreement forkeeping prisoners in 816 notice of, to be published 816 what prisoners to be con- fined therein -._..-- 816, 817 expenses of, a county charge... ..-.----.-- 816-817 when a state charge.... 817 819 ESIC PETE INDEX. 987 PAGE. Person : includes corporation_..__. 355 Personal property : where taxable -_..__.____- 319 Physicians : for jails to be appointed. 813 in Albany County _____- 604 Monroe County __.._- 604 _ Renesselaer County... 604 compensation of .__. .. 568 Supt. of Poor not to audit their accounts -__-___- 695 Pipe-line companies : where to be assessed_--.-- 376 commutation of taxes.... 3876 Plank road Co’s : use of highways by ----- 216-220 lands to be taxed_._. _- 280, 314 exemption from taxation, when__._----- -- - 3804-306 application to Supervisors for leave.._..- 216-220, 839 action of Board thereon 216-220, 889-842 extension of charters of -_ - .843-5 agreement for use of high- WayS.....----- ----- 216-220 Plank roads: use of abandoned..-.. .-.- 634 abandoning parts of ------- 844 tolls on, how changed... 635 urchase of, by towns.... 634 inspectors of, to be appoint- Ode oo ge sees ye ay ise 842 Commissioners of Highways are inspectors of. ----- 842-3 Polls at elections : opening and closing of .... 229 in Queens and Suffolk Counties -_-_-.---------- 229 comparison of lists. ------ 235 lists to be filed_.---------- 248 Poor : Superintendents of, number how fixed_....-.----- 686 tenure of office. --_------- 686-7 must give bond..-.-. -- 689-690 vacancies how filled.... 688 accounts how kept.----- 675 auditing accounts of... 675 reports of -...-. 111, 112, 697-8 general powers of... .690-692 temporary relief of.... 676 Overseers of, see ‘‘ Over- seers.” Supervisor’s report of, to clerk of Supervisors. 857-8 moneys go to Overseer and not Supervisor. -- ---- 73 distinction between town and county may_ be abolished... 664, 683-4, 858 PAGE. Poor—Continued. how abolished _-_-_.-_---- 683-4 may be restored_.--..--- 68 5 notice thereof ._...6838-4, 858 powers of town meeting when abolished ___-__-- 686 support of, when a town or county charge 568, 679, 682 expense of, how defrayed 698 enalties applied to-_-... 699 icense fees...._ ._-..--. 699 in particular counties.700-751 See names of everal counties. Livingston County poor DAW cael $5 eee accounts under____---.- 508-9 form Of cs ceceee sce 511 support of poor by towns under... ------ ---- 507-511 certificate as to, required 508-509 estimate of expense by Town Board_--_.------ 509 Superintendent to ac- COUNE cscca weceecs 508 and report_____.------ 509 sites and houses for....640, 681 erection of houses..-640, 682 _children when not to be kept at poor house.... 699 Poor houses : sites for_....-.. -----. 640, 681 erection of_._..._..--- 640, 682 Printing : calendars for courts, a coun- ty charge .-.. -------- 558 of session laws in news- Papers 222262 52eee22 826 resolutions of Supervisors 569, 832 abstract of town audits.... 831 report of town debts. -.---- 831 election notices_-.--.----- 828-9 for county officers, Super- visors no control of 828-9, 832 fees LO osseccisyseseu/a= 5 e's 828 See further under ‘‘ pub- lishing.” Prisoners : to be supplied with food.... 815 in penitentiaries.... .... 816-817 who to be confined therein 816, 817 confined on civil process, how supported... --..-- 676 employment of, under di- rection of Supervisors 815 at hard labor..-..--- 653, 815 contract system abolished 658, 815 988 INDEX. PAGE. PAGE. Prisoners—Continued. Published, to be—Continued separate confinement of 814-815 NGSB oo eens Hes 831, 857 Supervisors to determine canvass of election .___.____ 256 TISOD. aAsteas-Soeeeace 817 notices of elections. __._... 828-9 transportation of, when a equalization proceedings county charge ...- .--- 817 ; 404, 830, 856-7 when a state charge-_------ 817 proceedings of Board of Su- Proceedings : pervisors...-- 569, 832, 857 of Board of Supervisors to notice to present claims... 554 be published . -.569, 832, 857 abstract of town audits.... 881 to be sent to state library.. 863 claims against counties. __. 856-7 on equalization of assess- ments to be published 404, 830. 856-7 when evidence.-_.--..-- 670, 862 supplemental, for collec- tion of taxes.._.._- 156, 162 for possession of books, etc. 32, 53 against towns, service of TOCESS 2.0.0.6 cceac-came 883 to be reported to town meetings __.---..- ---- 121 to remove county officers.. 569 Property : real and personal defined 81, 287 liable to taxation...-.------ 280 exempt from taxation. ---- 291 real, of corporations, where assessed 312-316, 323-4, - 370, 390 how assessed... ..------- 372 personal, where to be as- sessed. ...--------- 319, 340 of corporations___..---.- 378 valuation of, by Assessors. - 328, 339, 351-2 how reviewed on review on certiorari....---.-- omitted from current year -352-3 from previous year_-.-. 352-3 cannot be considered on equalization... -..--- 397 on division of county, ap- session laws, in newspapers 826-828 Supervisor’s compensation. 880 resolutions of Supervisors (L. 1875, ch. 482) 569, 882, 875 notice of contracts with penitentiaries.._..__. - 816 Putman County: law relating to dogs killing sheep...-.----..--.-.. 181 Qualification : of Supervisor..-........-- 4 Electors... ....-------- 4 jurors....-.-------- 210, 784 meaning of term-_._.--_- il Queens County: laws relating to dogs killing 1 sheep__-.-_....-.--- 2 to borrow money for high- ways, etc. _....---..-.- 635-7 support of poor in. -..- 700-702 Quorum : what constitutes _.._._ 252, 599 of County Canvassers. .... 252 Supervisors...- -.--..-.. 599 Superintendents of the POOP weed ce eeceicccsas 696 Town Auditors....--.... 493 adjournment for want of 257, 600 less than, may adjourn 257. 600 but cannot transact business.... .... 257, 600 Railroad Commissioners : portionment of _...--_- 876 ineligible to be Supervisor 5 of towns, apportionment to a bond....-_--.--- 69, 119 165-167 make annual reports. ..535, 540 non-resident lands defined_ 317 duties as to town bonds 535, 540 assessment of 288, 316,342, 346 on division of towns.... 668 to be surveyed. .143, 345, 478-9 erection of new towns vacant by removal of 227, 663-4, 668 occupant.... ---.--- 349-351 sale of stock in bankrupt destroyed by mobs or riots, railroads.....-_..- 150, 203 county liable for___._- 909 compensation of_........-. 938 actions against county Railroad companies : LOR eee! Sco a aus 909-912 | See ‘‘corporations ” and ‘‘railroads” Public buildings : Railroads : See ‘‘ buildings.” are not non-residents 316, Published, to be: amount of town indebted- 345, 372 are residents of each town INDEX. PAGE. Railroads—Continued. through which they pass... 2. 316, 345, 372 real estate, valuation of... 372 how assessed .._______- 372-3875 where assessed and taxed ; 314, 323-4, 370, 390 description of, in assess- mentroll._..___._- 337, 340 apportionment of valu- ation in school district f 98, 99, 378 personal property, valuation of 3—4, 370-375 partly in this and partly in other states.___._.. 371, 375 foreign, how taxed._..289, 324 . local companies operating R. R. abroad __-___- 372, 375 officers to deliver statement to Assessors.__..------ 379 contents of statement 379, 381-2 franchise tax on_?___..- 391-393 indebtedness of towns in aid (2) See Renee ree 146-149 payment of such indebt- CGNOSS: < o xease teed 147-9 apportionment of, on erec- tion of new towns_227, 3-4, 668 bankrupt sale of stock in 203 150, Real estate : defined: ...22cccceccescsncn subject to taxation....---- exempt from taxation. ---- 291 of ministers of the gospel 299-301 owned by the state.__.--.- 292 by U.S. e2ccccteee 292, 307-308 of corporations, where taxed ____._-.-.--- 814, 370 valuation of, for taxation 370-874 equalization of assessments confined to_-.-------- 397 of school districts, sale or exchange of...------- 657 Records: of Boards of Supervisors, when evidence. ..-670, 862 Supervisor to procure from predecessor ..---.----- 32 proceedings to obtain. -. .82-53 of County Canvassers to be kept. ..2--ssssseacscc 260-265 Referee's fees : in highway proceedings... 569 Refunding: debts by issue of new bonds 148-9 taxeSi.-5- 25-5 297, 456-8, 482-484 in cases of invalid sales_._.482-4 of disputed town bound- 989 PAGE. Refunding—Continued. ANlCS eee se ioe 318 Refusal: to give security, a misde- meanor _.-.-..-.-..-- 24 serve, what amounts to 9 by Supervisor.__.....- 7 penalty for__.......... q not liable for second penalty _...-.-.---- q Registration : of births, deaths, marriages 171 of Electors.........._.._-- 233 Rejected tames : report of, by Comptroller_. 478 on account of erroneous description _...-.-. --- 478 added by Supervisors to as- sessment roll_.__. -- 478-480 Removal : of county officers a county CHOTSCy occ sche sis se cae 569 Rensselaer County: claims against, presenta- tion and audit of_.-_-. 591-4 physicians and door keep- ers, appointment of... 604 support of poor in_._.----- 716 assistant District Attorney 807 compensation of Super- «... NISOTSooes coczesee seed 873 ditto of Clerk of Board.... 851 Rents and debts: ‘of non-residents to be taxed 287-8, 325, 328-332 report of, by agent..-..... 328 rents in fee, control of by Supervisors...- ------- 442 Reports: of actions against towns... 121 account of school moneys 122 clerk, to Comptroller of town, etc., debts.... . 859 aggregate assessments tee 404, 860 ditto of corporations 20, 860 to Co. Treasurer, state- ment R. R. taxes.... 859 commitments to benevo- lent institutions ....--- 766 discharge therefor .... 766 Constables ...- -..-- 515-523 county officers to Super- visors .- --------- , 817 Treasurer._-. ---. ---- 799 committee ongrand jury 785 corporations to Comp- troller__..-.-. .--- 120, 860 equalization of assess- ments_..._-------- 398, 404 erroneous assessments 990 PAGE. 452 820 512 629 519 511 Loan Commissioners 776, 777 noxious weeds -.---- 108, 110 officers receiving fines and penalties... -- 817-819 paupers .-_.----- 111-112, 858 railroad commissioners 535-540 rejected taxes... ..-. -- Superintendent of Pub- lic Instruction..-- -.-- of the Poor..111-112, 697-8 Reports—Continued. 450, Excise Commissioners , 819, Highway Commissioners statement to Super- visors..-- -- 106, 619, Justices of the Peace---- Livingston County poor Supervisor _..--- 105-121, 857 town debts....115-116, 117 bonded debt of towns.. 857 suits against towns_... 121 school moneys on hand 16 forn:Of 222-5 33. 522358% 76 ditto to Town Clerk 78, 122 state boundaries__.. ---- 120 Residence for taxation : what constitutes --..---.-- 820 once established continues 318, 320 where person has two resi- CeNCOS8 s2is5eeeecseacens 320 of corporations -.-. -.-.-- 323-4 Resignation : by Supervisor _... -.------ 12 Resolutions : altering assessment rolls.. 453 authorizing survey of high- Ways oacs Seca nsacecse 633 levy for road scraper -..486-7 division of town _.480, 662-4 erection of new town 662-4, 668 election districts in towns 654 Board of Supervisors must act by..-...--.- 641, 658-661 to be entered on their rec- ords _....-..-- 641, 658-661 signed and recorded 641, 658-661 under act of 1875 (ch. 482) 658-662 forms of_.....-....--- 660-662 contents of _... _---.... 661 to be published - - ---- 569, 8382 filed spe. cence sees 34 658-660 bonding county ..-- ------ 660 towns __--._.---.-------- 661 confirming tax as extended on Toll ccs cceese. ae cece 51-3 INDEX. PAGE. Resolutions—Continued, contained in report of com- mittees _... ..... -.-- extending time to collect taxes 64 legislation of Supervisors to be by.... --.--.641. 658-661 powers of county to be exer- cised by.... -. 641, 658-661 selecting newspapers. .-.-. 661 report on levy of taxes. .450-452 Returns: of Election Inspectors... --. fori: Of cacca secs seid 246-249 how to be made.__._..-- 248 only prima facieevidence 248 copy to be filed_..-..-.-- 243 original delivered to Su- pervisors.... --..----- 244 duplicate to County Clerk 244 when to be canvassed_... 244 open to inspection ._-..- 245 enalty for making false 245 instructions to Inspectors 248 “ Review day” ..-.--------- 05-7 notice of to be given_-__.- 355-857 neglect of Assessors to at- tend 2 os ceececes 356, 441 powers of Board of Super- WIGOYS ocd. saeed-c os eae! 441-2 powers of Assessors on.-356-364 Richmond County: laws of, relating to dogs... 108 support of poor in_....--.- 702-8 compensation of Super- WISOMS steer ence esac cues 868 Riots, mobs, etc.: property destroyed by, county liable for.--.-- 909 actions against county therefor_._. .... -- 909, 918 Roads and bridges: laying out, through unoc- cupied lands.._...... -- 637-9 damages on laying out 832, 834 levying tax for, by Super- WISOTS 5:2 aco tosis ie tine 633 changing width of road 638, 638 purchase of plank and turn- pike roads by towns.. 631 use of abandoned turnpike TOAGSE ae caste a otal 634 damages to, after town meeting .-..188-9, 529, 531 before town meeting.... 189 tolls on, how altered__...- 635 how fixed... ..--------- 635 road scraper for.------ 162, 486 stone crusher__.-- ---- 162, 486 consolidation of road dis- tricts:....-. 52s. ce 2s eee 631 grading streets beyond city INDEX. Roads and bridges—Continued. limits __.- 2 . -.--6381, 683 surveys and records of ____. 633 non-resident highway tax. 633 moneys voted for by town meeting how levied 189, : 190, 618, 621, 627-9 in Queens County -__. 635-637 notice of such vote..189, 618 to be published ___.______ 618 borrowing by town for 193, 620-1, 627-9 meeting to determine amount to be raised 194, 618, 621 proceedings thereunder 194, 199, 619, 622 amount that may be raised__.. ___- 194, 617, 622 authorized by Supervisors 194, 620-1 obligations given there- TOP we se ecceeee 194-5, 621-2 how to beindorsed 194, 622 record thereof to be kept .._- ---..- 195-6, 622 to be delivered to Su- pervisor .... -_..195, 622 his duties concerning - - , 195, 622 proceeds, how applied "195, 622 repairs of, by Board of Su- an pervisors.----.-- ----- when damaged after town meeting 188-9, 529-531 erection of, by Supervisors 624-6 damage resulting from de- fective town liable. -_.886~-9 Commissioners liable to town when it has to (pay ------------------- bridges over bounda: streains or waters. 626-629 division of expense. -- 626-630 where roads or bridge partly within village.. 623 between adjoining towns 626, 629 expense, how appor- dened See ee 629-631 repairs of, by individuals 835 such expense how repaid .835-6 between two counties. -627-628 towns unduly burdened by, assisted by Su- Serene saa eT companies, avplication for leave to conatract, _---887-8 Supervisor's duties thereon. --.---------- 8 991 Roads and bridges—Continued. statement of highway Commissioners ....619, 629 Commissioners to expend state appropriations... 638 Rockland County : Jaw in relation to dogs... 180 Rules : of Board of Supervisors 605-610 validity of_....-. ..-... re-consideration of __.___ 610 of State Assessors... ___- 406 Sailors and Soldiers: burial of ..._....-.-..----- 846 St. Lawrence County : Constable’s fee in....__..-- 522 County Clerk to give bond 786 Saratoga County : laws in relation to dogs - _182-136 auditing accounts in, by Supervisors ..-_..-..-- 587-8 Savings banks: taxation of........--..-.-- 280 deposits in__........------ 310 Schenectady County : support of poor in___--- 709-712 compensation of Supervis- OFS IN co sce eens 868 Schools : alteration of school dis- ICTS Sec e aS 88 in case of refusal of trus TOCS 262 Le ate cess sete 88 order for --...----...---- 89 consent of trustees ...-.. 89 duties of Supervisor as to_-_90-91 to call district meeting --.. 91 Supervisor cannot be trus- tee: Of ese nemoseees atis = taxes for, when not collect- 473 apportionment of school moneys by_..-.-- 76, 86 alteration of school districts 88 order altering or forming new districts_.....---- 89 division of districts.....--. 658 taxes to be paid to --.----- 461 election of ..-..----------- Q74 compensation of._....---- T71 expenses of, to be audited 771 School districts : alteration of-.....--.--.-- 88-92 dissolution of Supervisor’s duty as to __.. -------- 92 dissolved continue for certain ae Lecoeas 93 sale or exchange of real O6tate; cc ocisaaseces School meetings : notice of..-------.-------- 95-96 992 PAGE. School meetings—Continued. when Supervisor may call 94-95 School moneys : Supervisor to give bond for 25 to keep account of ..73, 76, 78 receive and disburse... 73 form of account of.... 74 report amount on hand to Co. Treasurer _----- 74, 122 form of report....-- 714) 122 to Town Clerk-___.---- 122 in union freeschool district to whom paid _._.-.-- 76 order for, how paid----- 17 disbursing and accounts LORS ance acess 16-77 apportionment of...76, 86, 378 in hands of Overseer of POOR tse ve sus ececesicee 84-85 funds may be loaned by Comptroller -_-..----- 777-8 School officers : actions against_..-..----.- 98 GOStS. ING snc aeaceaee Serie 914 School tax: must be levied by Super- VISOPS)22.20 S45, saseece% ee of Board not to omit ‘ ichwewoe we eee ene 2 Gonptesties may withold moneys till collected... 772 renewal of warrant for. 86, 87 fOTMUOl ee cet ates Hs SS 87 in districts embracing parts of different towns...98, 94 proceedings when not col- lected ss 2ac252.de5u, cus Scrapers and road machines. 486 Sealers of weights and measures appointment of_...---- 199, 832 in towns...---.-----..-- 199 in counties... ....-- 199, 8382 fees: OB sssisnessssnineeses 938 Seals: of counties....-...---..... 670 duplicates, whenprocured 788 Board of Supervisors.670, 862 County Treasurer---_-.-. 798 how authorized ..__... 798 Security : officers issuing bonds to IVE) Scisc ace Smt e seme 661 Seneca County : support of poor in___. .__- 703-6 eep: mured or killed by dogs 124-142 damages for, how ascer- tained and collected 124-142 Supervisors may enact laws relating to dogs.__.._- 665 Sheriff : INDEX. PAGE. Sheriff—Continued. to collect taxes......326-9, 471 against non-resident creditors__..._..------ 326-9 remedies against, in such CASES: Sccdcuu a necieiisera 327 duties on warrant when Collector does pay over 326-9, 471-2 to subpoena witnesses for Supervisors -__-.------ 671 ditto for committees thereof _.-_ -.-..-.. -- 671 has custody of jails and houses of detention 812, 813, 814, may a Keepers thereo 816 812 815 815 815 pr oe to be kept sep- arate......-.---- 14, to be supplied with food _.-....------- labor of, to be ac- counted for to Su- pervisors _.__.--.. physicians to jails__._. contracts with, for sup- port of civil prisoners 676 accounts of, a county charge........-------- 556-7 sompeneation of . .556-7, 938-9 Ships at sea: when and where taxable 322 Soldiers : 816 818 burial of deceased... _-_-.--- 846 headstones for._.......--- 847 monuments for_.._....--- 645 exempt from taxation 802, 305 lease of buildings to G. A. R. posts ._....-_. 198-9, 645 relief of indigent--.--_-. 542-5 State: Assessors to equalize taxes 405 lands of, how taxed 285-6, 346-9 when exempt from taxa- tion -.-.222.. 222 .- 292, 307-8 in forest preserve. 285-7, 346-9 highways altered, ete. 288, 638 monuments on bound- OPICS ees cei iice, 120, 220 taxes, amount how de- termined... ___- 454, 647 taxes to be levied_455, 647 levy compelled by man- mus...... -.-- 647 apportionment of 454) 647 on corporations .... 370 franchise tax....891, 393 INDEX. State—Continued. aeat —expense in bribery cases, charge against...____. 569 State library : official proceedings of Board to be sent to._........ 863 Statement . of equalization of assess- ments ..-._-.--.---. 401-402 expenses of the poor-.--_572-576 Highway Commissioners as to roads, etc. -.106, 619, 629 of their annual accounts 505-506, 511 town audits ...... 514, 538, 5384 of elections.. ........ 259, 260 by corporations to Assessors 378-381-2 Statutes: in conflict with resolutions of Board void._-__---- 661 Stenographers : for county court and court of sessions -....--..--- 571 for grand juries -_--_- 570, 807 State Assessors__.-.---.-.- 410 fees, when a county charge. -..-----.- 570, 571 copy minutes for Elmira Reformatory --------- 1-2 compensation of -...-- 410, 571 Stock of corporations : how taxed..-.---------- 378-390 Stockholders : list of, in banks ...-------- 384 taxation of __..-.---------- 310 Stone crusher : purchase of, for towns 162, 486 notice of election..-.------ 162 custody of..-...---------- 162 tax to pay for same...162, 486 stone for crusher_-162-163, 487 Strays: Supervisors to receive mon- CYS 108 sesosessecsece 143 Subpenas : , chairman of Supervisors may issue_...---- 602, 671-3 so may committee....67, 678 Successor : in office may be substituted in suits _...-.--- seeaislse Supplemental proceedings : to collect taxes..--.------- 156 affidavit for, form of.----- 157 order in, form of ....---. -- 160 taken by Co. Treasurer for non-resident unpaid PAROS: = <2 scccseuneescse 325-9 AXE: Superintendent of the Poor: rf. upervisor not eligible to be 993 5 PAGE, Superintendent of the Poor—Con- tinued. 5, 689 number of, how fixed... 686 term of office....._....._. 687-8 official bond..._ _. 689-690, 858 vacancies in office, how Wed 222 ccc woos eccee 688 majority may act._._.___- 696 accounts of, how kept 572- 5, 675 powers and duties of 690-2, 857-8 are county agents.__..__ 693 may administer oaths... 697 may audit certain accounts.... -.-.------ 692 accounts they may not audit... ___. -.._- 693, 695 must keep accounts 572- 5, 675 as to bastard children... 696 estimates for County Treasurer.... ---- ---- 698 not to send children to poor house-.--------..- 699 nor indigent soldiers.... 696 may send insane to state asylum_._...-. ------- 751 also lunatics... -.---- Tol when relatives do not sup- port lunatics_.-...._.- 752 indigent lunatics, pro- ceedings_....... ---.-. 152-3 may confess judgments.. 694 cannot afford temporary relief to poor... ...... 694 proceeds of poor house, fOrM Hes 5 sen yese sess 695 not controlled by Super- visors..-.--.-.------- 695 report to Supervisors 111- 112, 572, 576, 697-8, 857-8 report commitments to benevolent institutions 766 audit of his accounts 572-6, 675, 692 may be sued on contracts for supplies__..--..--- 694. can not be sued before Justice for support of paupers..-...-.-.-.--- 694 Supt. Public Instruction : Supervisor’s reportto.... 121 Town Clerk ditto-...-.-- 122 Supervisor : election and qualification - - 1 is a town officer.....--.--- 2 who eligible to be_.....--- 4,17 ineligible to be_._._. ._-- 45 Supervisor in Erie Co., can- not be appointed to OCMC isis srapertareie sa sisiots 611 994 Supervisor—Continued. Offices he may not hold---- Superintendent of the POOP se: is cceteseteeces County Treasurer -..----- Trustee of schools- ------ loan commissioner. --.-- member Board of Education....-.-. ---- contested election of 6, 600-1, Board of Supervisors pos- sess power over - -- 660, except where court has already determined 601, refusal to serve, penalty for what constitutes. -.- not liable for second penalty .....-.- ------- oath of office to be taken -~ When: . -.incctsecxeceecams before whom...-.------- no fee for administering - form, Of |... so cesese cece accompanying certificate filing Of jo. ccscsoscueese penalty for acting with- out takin; notice of election to be given when unnecessary... ---- tenure of office..---..----- failure to elect, proceedings le 1 in case of a tie vote. -____- appointment of, by Justices 14, 15, tenure of office of Sen vacancies, when they oc- CUfesast ta tesceutee ss when they do not occur_ how filled._.. ....14, 15, validity of appointment order appointing. -... 15, qualified, meaning of--.-- acceptance of office.-....-- resignation of office... forfeiture of office.-....-- removal of bonds to be given by.....- formOfses. 23. sotgsse for school moneys... --- form of refusal to give, a misde- meanor County Judge may appoint officer to act ee Laws 1856, chap. iy Supervisor appointed to fill vacancy..-...-- for school moneys. -_- under laws 1886, chap. 78, 63 INDEX. PAGE. PAGE, Supervisor—Continued. 5 SU ceeeele veer “86 relating to bonded debts 5 of towns.....-..------ 28 5 railroad debts of towns 27 5 when to be filed.._- ----. 20 5 acknowledgment of _... 21 justification of actions... 21 5 approval of, by Town 662 Auditors.---.--.------ 21 failure to give, effect of 28 662 action on such bonds.. 27 by whom brought.... 22 662 liability of sureties in-. 28 7 powers and duties of ....-- 31 q classified -... ... --.- -- 32 when he acts without 7 authority, his acts are 7 VOID sari ots ocas tectonics 2 7 limited by statute... ..- 2 8 asa town officer...-.-..- 32 9 books and papers of office 32 9-10 to demand from prede- 8 COSSOF ....-2%c ee scceen 32 9 retiring officer to deliver 33 demand of executor 9 when.... -... ---- ---- 33 receipt on delivery of 7 ooks..-. -.----- ---. 383 6 when delivery refused... 34 10 his duty to compel de- Nveny 222 shh Shas 34 mandamus is not the remedy .__.__-- -...-- 35 16 proceedings to compel delivery ...-.-.-...... 31-35 18 right to office cannot be tried in ..-- 2.222.222. 6 Duringer v. Winspear.. 36 17 petition, form of_._..-.- 37-46 16 affidavits may be at- 19 tached.-......-....--- 46 18 nature of petition _.-..... 46 11 order to show cause, 12 TOV -Obze2 3 ecamakimieiaee 47 12 proceedings thereon.... 47 11 affidavit of delivery _. 48 13 when such affidavié not 19 made .___..-- -..-.-.- 48 20 answer to petition, form 22 OL ose hy ys Soo ee Ys 48-49 22 witnesses may be exam- med on hearing..._.- 50 24 order for delivery...... 50 commitment for refusal, 24 form of _.-.....-....- 50-53 search warrant may issue, 24 form of_...-... ---.-- to take bonds from town 25 Officers __.-_. .... ...- 53) 25 Collector’s bond, form of 55-59 Constable’s bond, form of 59-60 INDEX. , PAGE. Supervisor—Continued, action on, for refusal to pay over._-_____.._- 472 Justices of the Peace, bond, form of 6: Commissioner of High- WAY Si ceria e soa wee eae 64-66 Excise Comuissioner’s bond cstee eee eee 66-68 Overseer of the Poor ._..68-69 railroad commissioners. _69-70 public moneys, receipt and disbursement of school moneys from pred- entitled to, on produc- tion Co. Treasurer’s certificate... ----.- 23, 72 duty of predecessor to pay over..-.---.-.-- 72 action on his bond for refusal ..i.2222000++4 %3 accounts of, to be kept 73 town moneys, receipt and disbursement of .-__--- 13 highway and poor fund. . 73 accounts of town money3 to be kept_----.-.---- 74 form of such accounts 74-5 account of school mon- eys to be rendered __..76-77 library moneys, how dis- DUrsed... esos cesses union free school funds disbursed to pay school teacher’s Wa eS iacemenes 22 ou Skee accounts of, tobe kept. 78 account of, to Town Audit- OFS si occccceseuce seit ase 78 final account with Town Clerk nno5 2:se0 22 54esse 78 accounts, when to be ren- dered....-.- 76, 79, 505, 576 when audited. ..79, 504-5, 576 books and vouchers to be produced_... .--.----- 79 audit of his accounts -_80, 504-5, 576 he cannot act on._---.-- 576 Auditor’s certificate in his DOO 222 sepsce eres se! 514 against the county -.---- 576 gospel and school lots as to ne is trustee of ..------.---- moneys in hands of Over- seer of Poor -..--------- 83-84 under act 1829, chap. 287 a under school laws_.-----. to sue for penalties, ete. - 4 renewal warrant for school tax..-- .--- .86, 87 81-82 995 PAGE. Supervisor—Continued. apportionment of school MONEYS eed oe soci ase 87-88 alteration of school dis- tricts.___.... ......88-89-91 dissolution of.... ....-. 92 taxes in districts partly in two towns._..--.----- 93 may call special school meeting ....--.-.------ 9. as to school moneys. --.- 97 may hold property in trust for schools. --.-- 97 actions against school of- ficers, costs in_._._._-. 98 apportion railroad valua- tion amongst districts.98-99 compulsory education... 100 deaf mutes and the blind 101 application of parents. 101 forma Of sac. cicuueceie 103 his action thereon... .- 102 Western N. Y. Institu- TON. ese ssoweeecins = 102 Northern N. Y. Institu- HOM gacecoucke wees 102 order to send pupil._.. 104 audit accounts by, under Livingston Co. act_... 510 reports to be made by Su- pervisor __-.-.-------- 105 to Board of Supervisors.. 121 accounts against town__ 105 bonded debt of town 117. 857 duties concerning-.--.. 117-120 town indebtedness ..115, 116 moneys voted by towns. 105 as to rejected taxes_-_-_- 106 statement Highway Com- missioners ......------ 106 bridges over boundary streams __-_..--.--.-- 107 laying out highways, damages awarded 108, 110 noxious weeds -.--..--108-109 Assessors and Collectors, names of .___-------2-- poor supported by town 111, 112, 858 penalty for neglect.--.- 112 sheep damaged by dogs. 113 grand jurors, erists Ue 113, 114 corporations, list for Comptroller -......-.- 120 monuments on state boundaries to engineer 120 duties concerning. ---- 121 suits against towns, to town meeting.-_.___--. 121 Supt. of Public Instruc- HOW ecias- sass se seaeis 121 school moneys to Co. 996 PAGE, Supervisor—Continued. Treasurer .-_...-------- 122 to Town Clerk_...---- 122 paupers to clerk Board Supervisors .....---- -- 119 corrupt use of town moneys 144 unlawful expenditures. 145 dogs, duties in respect to.124-140 in particular counties - . 180-140 blind, dutiesas to....------ 101 bonds of town, duties in buying and cancelling. 146 bankrupt railroads, sale of stock in 22.2.2-2022--- 150 guardian for orphan chil- Gren... assecescece -... 144 surplus moneys, to receive and retain.-..----. --... 144 surveys of town, when to be made... .--.-- 2252505 143 penalty for neglecting.. 143 non-resident lands for Assessors.......---148, 345 tax-payers, application to pay bonded debt of TOWN) 22522 2Nacielsce 147-149 drainage laws_....---- 150, 220 vacancies in office of Auditor_....-. 0 ------ 150 vinegar inspectors .-.------ 151 eee ae cage 178 judgments, when to pay 155, - 899, 900 may compromise... ---- 875-6 to be had before Super- visors _.....-. ..-- 97, 913 penalties, to sue for_.-.-- 155 attend Board of Supervisors 155 towns, alteration of....155, 165 division of_...----.-- 165, 166 apportionment of prop- erty in such cases.166, 167 of debts ..-...-. -.-.-- 167 division of, into election districts.......... -... 224-6 alteration of ___._... ___. 226-7 election districts in new TOWDS j2ecce SoRe ees 227 houses, control of .......--. 198 sites for, purchase of.... 138 lease of, toG. A. R. posts 198 sealers of weights and measures, appoint- ment of_.-...-- ------ 199 firemen in towns, appoint- ment of _.-_-_.---.--- 200 jires in the woods. _.--. .-. 198 highways used by plank roads__.....-.---- 216, 219 appointment of Collector 201, 469 notice of, to County INDEX. PAGE. Supervisor—Continued. Treasurer ....---.-.-- 220 Excise Commissioner ....-. 203 Justice of the Peace ---.-.- 183 Inspectors of Elections.... 185 taxes extend time of collec- VOM s2cs.o2- eke sce 202-203 Inspector of village elec- tions, when __....- 212. 214 trial jurors... ..204-205, 232-213 Lists GE2 22 s.tec ee ee GSS 204 how made.........-..-- 206. form of_..........-.---- 211 Boards of Health, duties concerning -....--.- 167-170: amember of_._.-_--.--- 168 water-works companies, du- ties as to..-------.--.-- 186 roads and bridges damaged. 188-190 borrowing money for re- Pall: Olen ceive coe cs es 193-198 duties in relation to..194-8 elections, duties as to-_..-. 222 districts in towns-_.-.... 224-6 alteration of-......_.. 226-7 in new towns...._..-.. 227 notice of duties as to. ...227-8 to receive canvass of.... 224 instructions as to..._..-- 249 canvass of votes...... 250-252 County Canvassers, duties DS rs oe Ge eee 252 election returns 244 assessment roll to be de- livered to ....._-- 864, 435-6 duties concerning . .367, 435-6 of corporations............ 394 transmit list of, to Comp- troller_.....----.. -- 436-439 instructions to, by Comp- troller__....-.---.. 436, 439 diseased peach trees._---- 214 land vacant by removal of occeupant.__.----.. 349, 351 may appeal from equal- Wzationeses, 2 ceeeeess 410 proces nee thereon.405, 410 ee ‘‘equalization.” not to receive poor nor highway moneys...--- 73 when Collector neglects to pay over_._.-_-....--- 471 highway taxnotworkedout 473-4 returns of Overseer as to 474 to lay such report before Board_.-..--- .--..--- 475 taxes, supplementary pro- ceedings to collect.... 156 compensation _._.....--- 157 Livingston Co. poor law, INDEX.. 997 ‘s PAGE : PAGE. Supervisor—Continued, Surveys—Continued. duties under. _____.._. 510 of lands for Comptroller militia, armories for____.. 778-9 481, 482 enrollment of _._.._...- 782 of towns for state engi- neglect. of duty, penalty NGCTE ceo oe ccisie Seas 148 MOM weetize 2 teicisiencaieie 677 penalty for neglect... --- 143 actions by and against.... 891 | Taxation: process in actions to be real estate subject to. --. 280-286 served on _...-._. ._.. 883 of corporations... -.--. 324, 370 substitution of successor personal estate subject to il) (ace secs reom eae 894 280-286, 370 on collector’s bond... ---- 472 debis due _ non-resident may employ counsel in-_ 883 creditors__...--------- 325-7 pay judgments_-..._--- 898-900 exemptions from ..-_..--- 290-291 costs in, against. -- 875-6 on degs 125, 180, 185, 1387-8, 141 when not allowed... ---- 897 ratio of taxation__.._--.-- 453 judgment to be laid be- fore Supervisors. ..897, 913 taxes to be levied to pay 898-914 compensation of ...---- 866, 939 as town officer__ .--- 866, 939 in particular counties 867-873 as member of Board of Supervisors -.-. .--- 865-939 Supplementary proceedings : to collect taxes_.......156, 162 affidavit for _....--.....-- 157 order for examination of tax payer.....--.----. 160 Sureties : in official bonds, liability of 28-29, 58 justification of_...--....-- 57 Surplus moneys : on sale of strays, Supervis- or to receive __-..----- 148 of property for taxes.... 144 Surrogate : election of, may be ordered 809-810 clerks of, authorized by Su- pervisors -...--------- 811 examine guardian’s ac- Counts. cee s2 sence 811 examiner appointed by Su- pervisors -_...---- 11, 812 County Judge is -...------ 810 office may be abolished_... 810 compensation of, fixed by legislature ..--.--.-.-- 811 rooms to be provided for 560, 812 when provided, Supervis- ors not liable for others 561, 812 Surveys : of highways ....---------- 633 on alteration or division of towns ____-------- 165, 166 non-resident lands for As- sessors .-- ---- --. 148, °345 property, how valued -.351-352 See ‘‘ assessment for taxation.” for stone crusher ..-.-.---- 162 levy of state taxes........ 647 county taxes.....-.----- 648 expense of publishing re- demption notices_---.. 576 Taxes : rejected, reported to Super- visors_._._- 106, 478-9, 481 unpaid, to be re-assessed' 349, 352 charged to county._..__-- 483 supplementary proceedings to collect..._-.-----. 156-161 extending on assessment TOM a fora eee 452-3 in case of disputed town IN CS iyerte sspears apres epetiare 666 illegally assessed not county charge_---. ...--.---- 594 lands partly in two counties 457-8, 903 Tax-payer : actions by, to prevent'waste by officers -....__.-. 915-920 duties on ‘‘review day”.. 361 Tax-receiver : may be provided for __.._- 657 Telegraph and telephone co's: state tax on _..._..._-- 281, 377 apportionment of valuation toschool districts 98,99, 378 where to be assessed 814, 324, 370, 390 Tenure of office: of Supervisor..........-2, 10 when appointed_.. _.._- 18 Collector, when appointed 201, 202, 469 clerk Board of Super- VISOMS eos eee se 603 chairman of Board in Erie Co._........-..-- 602 Tie vote : no election in case of...... 14 998 INDEX. PAGE. Tie vote—Continued. proceedings in such cases.. 14 Time : to take oath. of office by Supervisor_... ---. --- 7 file official bond_----- 19, 20 bond for school mon- CYS. ess 20,22, 25 account for school moneys ...- ---- ---- 25 hold town meetings. ------ 3-4 meeting Town Auditors, spring meeting-.-....-- 503 autumn meeting---..-- 503 annual meeting of Super- visors.... .... ------.-597-8 present accounts against town or county....--- 501 open and close county offices ....-. -.------ 658 make assessments. ..313, 334-5, 353-4 extention of, to collect taxes...._ _.-- 470, 618, 649 on appointment of Col- IeCtOR 2 22cees esas 469 school taxes_--.------ 86-7 appeal from equalization of taxes... .- ------- 405 from Board of Audit- OTStter, Wes inui ase 515, 517 from order in certiorari roceedings........- 432 Toil bridges : where and how assessed 314, 375 Tolls : on plank and turnpike roads, bridge or ferry regulated _-_-__.-.-..-- 635 Torts: claims for, not to be audit- C0 wage esceeesey 498, 560 Town Clerk: may administer oath of of- fice to Supervisor... _- 8 give certificate of taking Oath yas, 2ogsdesse 8,9, 10 notify Supervisor of his election.__........--.- 7 call special town meeting to fill vacancies. 15, 16 furnish list of ‘Assessors and Collectors._.....- 1i1 keep account of all town business .. ___- 195 duties under school laws._97-99 alteration of school dis- tricts -_......--. 88-92, 99 fileand record accounts 555, 852 as to town audits. .191, 528, 5380 certificate raising money Town ee ren bridges. _-.--- 191, 197 ea of proceedings to be kept .--..------------ 195 Supervisor to report school moneys to.__..-..---- 199 informal acts of, legalized - 924-5 report to Comptr oller of de- linquent officers -_..-- 863 member of Board Town Auditors_.-.-- 503, 525, 546 compensation of -..._- 866, 939 Town charges: auditing of, by Town Au- GitOrs sees scszceemesss 489 by Board of Supervisors .552-3 consist of ..-..--.---.--- 527-528 expenses of Board of Calthive cess cece 528 compensation of town offi- COlS2 2h eee eee aaah 527 Excise Commissioners... 527 contingent expenses... ..-- 527 money raised by vote of town _..-_.--.-.------ 527 accounts of Town Auditors 527 of Assessors -.505, 506-7, 527 Justices of the Peace in criminal cases _..._. 515-518 Constables in criminal CASCS Scere joie insu es 515-518 Overseers of the Poor 505-507, 527 Supervisors ........ .-. 527 services of Highway Com- missioners -.-.---.---. 527 services Inspectors of Elec- TIONS cose eed ee see 527 school books for indigent PUPUB eco eck cwce 527 support or poor, when-__505-507 repair of bridges, etc. 528, 529, 618-623 judgments against town officers... _- -----...-- 895 for neglect of officers not town charges......--- 895 sheep killed by dogs...530, 532 losses by default of Col- lector........-.-.----- 475-6 insurance on town buildings 526 damages from defective roads and bridges. .-.- 886-9 Town houses : sites for__........-- 182-3, 644 erection of .....__..... 182, as between towns and vil- PCy ee eer ee es 182-5 sale on leaseof_...7._...-. 645 control of_....... ......-. 198 lease to G. A. R, posts 198-9, 645 Town lands : INDEX. 999 PAGE, PAGE. Town lands—Continued. Towns—Continued. on division of town_-_--.-- 165 vacancy in _..... ---- 150 annexing part of town.. 165 bonded indebtedness of..-- 28 when to be sold_.-.._... 163 report of, to be published a as to cemeteries......_. 167 for railroads........--.- partition of ....2. 2.2... 885 bonds of ...-.-.-.--- --- 27, 8 own lines: cancelling bonds under act disputed, how determined. 665 . W886 oc ninese wets soe 117-120 adjustment of taxes in such CASES\. coe cocic eee 4. eee 666 Town meetings : annual, when held -_..-.. 2, 3 time of holding how fixed 3 failure to elect Super- visor special for election of Su- pervisor _...---------- to fill vacancy --.---.---- 15 in case of resignations_12-15 authorized by Supervisors 654 first in new town....----- 664 by whom held-_-__...---- 664 informal acts of, legalized 824, 825 to vote to elect town hall. 182 by election districts -_..-.-. 654 vote for soldiers’ monu- Ment veces cenceees st ss 645 may elect Board of Town Auditors 180, 508, 525-046 vote for road scraper... ..- report of suits to be made to Town officers : Supervisor is a town officer 2 Auditors to state accounts of Supervisor. - -503-4, 513, 525 certificate of audit in his book _...---.--- 505, 514 audit of accounts of 503, "525-6 informal acts of, may be legalized ....---- 649, 824-5 Towns : may sue and be sued---.-- 878 in name of town....--.- 878 process to be served on Supervisor. ..-.--..--- 883 not lable for acts of town officers ....---.-----.- 879 officers may be authorized to sue in name of-_-..- 882 actions against towns 878-882 inhabitants of, witnesses 884 powers of town meetings 884 suits against, to be report- ed to town meetings.. 121 accounts against... ---- 528-530 audit of, to be published. 831 Auditors, ‘Boards of .. . 180, 508, 525, 546 appointment of, to fill cancellation of __....-. 586-538 Boards of Health in....168, 169 Comptroller may loan money to__......----- 667 borrowing money for roads and bridges __-188-193, 620 amount, how determined 188-194, 619-620 bonds therefor. .193- 194, : 621-623 to be delivered to Su- pervisor.._..... 195, 621-3 proceeds of, how applied 195, 621-3 excess of how applied 195-622 limitation thereon 193, 622-3 record to be kept by Town Clerk 195, 196, 622 to pay bonds...--. 194, 621 boundaries to be surveyed. of new towns.._____-_-. 662-4 erection of new towns. 664-668 division of towns____- 480, 662-4 into election districts 224, 654 apportionment of debts on division of ..._- 167, 668 pf aaa of Prop: 166-167 jaf of, how divided... 165 Clerks of. See “Town Clerk.” chargeable with defaults of Collectors.... -... --.- 475 charges against—see ‘‘ town ‘ charges.” whatare._..-......--. 527-529 compensation of officers... 527 costs, when liable for.__.- 897 debts of, Supervisor to re- port to Board ___.-. 105, 831 also to town meeting.... 105 apportionment of, on di- vision of town....167, 668 defective highways and bridges, liable for dam- ages resulting from___886-9 when town may sue com- missioners ....._...... 889 disputed lines, how deter- mined ....... --- 665 adjustment of taxes i in such CARES ccisis ete sanisni existe 666 elections in......-. 224-258, 654 divided in election dis- 1000 INDEX. PAGE Towns—Continued. triCts 022 ceeeeeet 224, 654 embezzlement of funds of.. 941 falsifying books of ..---.-- 941-2 jive districts, creation of.. 655 apparatus in_.-_..--.--. 654 jiremen in, appointment of 200 houses of, management of 198 erection of -.__.-_.------ 182 purchase of sites for 182, 640 irregular proceedings cor- rected _._.----.--.-.-- 649 may lease buildings to G. A. R. posts.------ 198-199, 645 meetings in, when held... 2-3 See ‘‘ town meetings.” new towns, erections of 663-4, 668 boundaries of, how fixed. "663-4 apportionment of debts 167, 668 officers of, judgments against, when not town Charee. eens ee 895 poor, support of. _....- 664 See ‘‘poor” and ‘‘ Superintendent of Poor.” sealer of weights and meas- UTES veeaciugece sees os 199 surveys to be made._-.-_.-- 148 taxes charged to, when lands imperfectly de- ; scribed ..... -....- 478-480 Water Commissioners in. 186-187 water-work companies in 186, 187 Trustee : Supervisor cannot be, of schools _.......... ..-. 5 property in hands of, assess- ed for taxation._.____- 841 duties on alteration of school districts____.... 89-90 Turnpike roads : use of highway by....216, 220 where taxable....-....__- 314 exemption from taxation when) <.:s222<¢. sscsjo3s< 305 abandoned, use of.... .... 634 abandoning parts of 844 tolls, alteration of._._..... 635 purchase of, by towns. .__. 634 application to Supervisors for leave to construct. 889 action of Board thereon 839-842 Uniform ballots: how to be printed...._... 284 others prohibited.......___ 234 penalty for using illegal ._ 2385 Union free school districts : division of .....---..--.... 175 PAGE. Union free school districts—Con- tinued. dissolution of..-.------- T738-T76 ty Of vec. eens ez Yast 773 United ‘states: real estate of, exempt from taxation__....-... 292, 306 securities exempt from tax- ATION 32 cook) eels sake 291-2 U. S. deposit fund : Supervisors may require additional security.._.. 776 toexamine commission- er’s books, etc........-. 76 and reportto Comptroller 777 Vacancies in office: filling of, by Justice of the Peace NAST epee ae 14-15, 16 by special elections... ..-- 15 acceptance of another of- ce creates__.._.-...-- 6 of Justice of the Peace how filled ...8. ce tesceb ees 1 County Treasurer Excise Commissioners _... 208 firemen _._.-.......-.----- 200 Inspectors of Election 185, 230-232 Superintendent of the Poor 688 Supervisor. ...._- 14,15,16, 18 Town Auditors.........__- 150 when vacancy does not oc- CUP saccccseeusceen cece 17 failure to take oath of office or give bond creates.. 62 Vacant lands: assessment of, for taxation 349, 351 Lies al ta ; of prope y Assessors aes 28, 339 conclusiveness of .......-- 328 actual value ._......-...-- 351-2 how determined ........ 339-351 Assessors are judges of... 339 of personal property ---.-. 340 what part subject to taxa- WHOM 32s artayiciseroeioarreo 340 deductions that may be MAME: