County Officers

§ 26. Boards of supervisors.

Art. III, § 26

There shall be in each county, except in a county wholly included in a city, a board of supervisors, to be composed of such members and elected in such manner and for such period as is or may be provided by law. In a city which includes an entire county, or two or more entire counties, the powers and duties of a board of supervisors may be devolved upon the municipal assembly, common council, board of aldermen or other legislative body of the city.

Amendments of 1874, Art. III, § 22; continued without change in Const. 1894, Art. III, § 26; amended in 1899.

Nature of board.- Construing this section in conjunction with sections 27 and 28 of this article, it is apparent that a board of supervisors is primarily a legislative body. People v. Westchester County, (1912) 149 App. Div. 319, 133 N. Y. S. 760.

The composition of boards of supervisors and the manner of election and term of office of their members are matters resting in the legislative discretion. People v. Westchester County, (1893) 139 N. Y. 524, 34 N. E. 1106, affirming 69 Hun 143, 23 N. Y. S. 419. Since, however, great mischief would result if by the operation of local laws uniformity should be lost in the composition of such boards, the otherwise plenary power of the legislature over that matter is limited by article 1, section 18, prohibiting it from passing any private or local act providing for the election of members of boards of supervisors. People v. Westchester County, (1893) 139 N. Y. 524, 34 N. E. 1106, affirming 69 Hun 143, 23 N. Y. S. 419.

Town supervisors as members of county board.- An act (ch. 588, Laws of 1896) erecting a new county and directing that the board of supervisors thereof shall be composed of members who have been duly elected supervisors of the several towns which make up the new county, in the manner and for the period provided by law, is constitutional. The act "gives a board of supervisors to the new county. That board is composed of members who have been duly elected supervisors of the several towns which make up the new county, in the manner and for the period provided by law. This fulfills the mandate of the Constitution." Matter of Noble, (1898) 24 App. Div. 55, 54 N. Y. S. 42.

Office of supervisor as constitutional. The office of supervisor is a constitutional office. Williams v. Boynton, (1893) 71 Hun 309, 25 N. Y. S. 60, affirmed, (1895) 147 N. Y. 426, 42 N. E. 184; Queens County v. Petry, (1900) 54 App. Div. 115, 66 N. Y. S. 447, 1142; People v. Hogan, (1914) 165 App. Div. 298, 151 N. Y. S. 261.

Common council and board of aldermen as constitutional bodies.— It has been said that the common council or board of aldermen of a city is made a constitutional body by virtue of the recognition of this section. Rathbone v. Wirth, 6 App. Div. 277, 40 N. Y. S. 535, affirmed (1896) 150 N. Y. 459, 45 N. E. 15, 35 L. R. A. 408. It has been held, without a discussion of the relation of this section to the question, that the board of aldermen of the city of New York is a constitutional body so long as it exercises the power under article 3, section 5 of apportioning the counties of that city into assembly districts. People v. Hogan, (1914) 214 N. Y. 216, 108 N. E. 459, affirming 165 App. Div. 298, 151 N. Y. S. 261, 166 App. Div. 895, 151 N. Y. S. 270. Office of supervisor as subject to article 10, section 5.The office of supervisor falls within the provisions of article 10, section 5, requiring that no

person appointed to fill a vacancy in an elective office shall hold that office by virtue of such appointment longer than the commencement of the political year next succeeding the first annual election after the happening of the vacancy. People v. Hogan, (1914) 165 App. Div. 298, 151 N. Y. S. 261; People v. Erie County, (1899) 42 App. Div. 510, 59 N. Y. S. 476, affirming (1899) 160 N. Y. 687, 55 N. E. 1099. Thus, where the office of a ward supervisor of Buffalo, whose term expired on Jan. 1, 1900, became vacant March 31, 1898, and the common council of the city, in April, 1898, elected a person to fill such vacancy, pursuant to section 374 of the city charter (Laws of 1891, ch. 105, as amended by Laws of 1895, ch. 805), providing that “the term of the person so elected to fill such vacancy shall continue until, and including, the next thirty-first day of December of an odd-numbered year, and until his successor shall have been elected and qualified,” the term of office of the person so elected expired Jan. 1, 1899, despite the charter provision noted whereunder he would have held office until Jan. 1, 1900, that provision being void under article 10, section 5. People v. Erie County,

supra.

Validation of acts of defective board.— To clothe any person who has not been elected a supervisor with the powers of that office would be violative of the provision here made for the election of supervisors. Wherefore chapter 143, Laws of 1893, purporting to validate certain acts of a board of supervisors not legally constituted is unconstitutional if construed as an attempt to qualify as supervisors the members of that board who had not been properly elected thereto. Williams v. Boynton, (1893) 71 Hun 309, 25 N. Y. S. 60, affirmed, (1895) 147 N. Y. 426, 42 N. E. 184.

Change by supervisors in their terms of office.— A board of supervisors, when duly authorized by statute, may change the date of a town election and thus extend the terms of the members of the board without contravening this section. "The constitution does not prescribe that members of the board of supervisors should be elected for a definite period, but only for such period as is or may be provided by law, and if the law authorizes the board of supervisors to change the time of the holding of the town meeting from spring until fall and expressly provides that those in office shall continue to hold office until their successors be elected at the fall town meeting and shall have qualified, while the period for which the supervisor is elected is an alternative period and one which may be extended by the supervisors themselves, nevertheless they are elected for a period prescribed by law strictly within constitutional authority. An elector when voting for the supervisor votes for him with presumed knowledge of his authority as allowed in the statute to extend his term, and I can conceive of no valid objection to such an interpretation of the constitutional mandate." People v. Huftalen, (1913) 158 App. Div. 44, 142 N. Y. S. 1012. A board may not take such action in the absence of statutory authority, however, inasmuch as this section provides that supervisors shall be elected "for such period as is or may be provided by law." People v. Weeks, (1903) 176 N. Y. 194, 68 N. E. 251, affirming 87 App. Div. 610, 84 N. Y. S. 16.

Force of provision for devolution of function of supervisors on legislative body of city. That part of this section which provides for the devolution of the functions of the supervisors of a county contained wholly within a city on the legislative body of that city, is permissive and not mandatory. People v. Hogan, (1914) 165 App. Div. 298, 151 N. Y. S. 261, affirmed, (1915) 214 N. Y. 216, 108 N. E. 459.

§ 27. Delegation of local legislative and administrative powers.

The Legislature shall, by general laws, confer upon the boards of supervisors of the several counties of the State such further

powers of local legislation and administration as the Legislature may, from time to time, deem expedient, and in counties which now have, or may hereafter have, county auditors or other fiscal officers, authorized to audit bills, accounts, charges, claims or demands against the county, the Legislature may confer such powers upon said auditors, or fiscal officers, as the Legislature may, from time to time deem expedient.

Const. 1846, Art. III, § 17; amended in 1874, Art. III, § 24; continued without change in Const. 1894, Art. III, § 27; amended 1909.

"The evident intent of the framers of the constitution in permitting the legislature to delegate certain of its powers to the local boards was to carry out a public policy which assumes that the interests of a particular locality are best subserved by those who are familiar with its affairs." Per Bartlett, J., in People v. McIntyre, (1898) 154 N. Y. 628, 49 N. E. 70, affirming 21 App. Div. 633, 47 N. Y. S. 1146; In re Henneberger, (1898) 155 N. Y. 420, 50 N. E. 61, 42 L. R. A. 132, affirming 25 App. Div. 164, 49 N. Y. S. 230.

Extent of power of supervisors. Apparently the boards of supervisors, while created by section 26 of this article, derive all their authority from the legislature and cannot be said to possess any inherent powers. They can exercise only such powers as are conferred by statute and any attempt by them to act outside of that zone is necessarily void. Kingsley v. Bowman, (1898) 33 App. Div. 1, 53 N. Y. S. 426; People v. Orleans County, (1892) 65 Hun 481, 20 N. Y. S. 398. It has been said, however, that while the board of supervisors of a county is, of course, a body of limited powers, it possesses inherent authority to perform acts to preserve or benefit the corporate property of the county intrusted to it. Thus, as by virtue of the County Law (ch. 686, Laws of 1892) the board of supervisors is intrusted with the care and custody of the corporate property of the county including county records, and as the Real Property Law requires recording officers to make proper indexes, etc., at the expense of the county, the board of supervisors has power to contract with the county clerk to make an entirely new set of indexes of the county records for a compensation in addition to his usual fees where the old indexes have become dilapidated and inadequate. Wadsworth v. Livingston County, (1910) 139 App. Div. 832, 124 N. Y. S. 334. In any event this section has guaranteed to the boards of supervisors only those powers which they exercised prior to its adoption. As the supervisors of New York county had never exercised the power of determining the amount to be raised by county taxes, chapter 779, Laws of 1873, empowering the board of estimate and apportionment of New York city to make such determination is valid. Townsend v. New York, (1878) 16 Hun 362, affirmed, (1879) 77 N. Y. 542. See also Guilford v. Chenango County, 13 N. Y. 143. Rule of construction of statutory grant of power. Within the limits of the legislative power delegated to boards of supervisors by the legislature under this section, each board of supervisors is clothed with the sovereignty of the state, and is authorized to legislate as to all details precisely as the legislature might have done in the premises. A board is not, therefore, confined in its action to the bare letter of the statute under which it proceeds but may, in the exercise of a sound discretion, act under powers that are fairly to be implied. "It would be quite impossible for a board of supervisors to properly legislate in regard to local affairs, if it were not at liberty to resort to those implied powers, within the limits of its jurisdiction, vested in the legislature of the state." Per Bartlett, J., People v. McIntyre, (1898) 154 N. Y. 628, 49 N. E. 70, affirming 21 App. Div. 633, 47 N. Y. S. 1146; Hubbard v. Sadler, (1887) 104 N. Y. 223, 10 N. E. 426. Thus, in legislating

for a town, under the provisions of the County Law (Laws 1892, ch. 686, §§ 69, 70) which empower the board of supervisors of each county to authorize a town to borrow money upon its bonds to build highways and to expend it for that purpose, the board has power to impose conditions as to details, for the interest of the taxpayers, not specified in the statute, such as safeguards to the letting of contracts, and provisions that the work shall be prosecuted under competent supervision and the money deposited with the county treasurer, to be paid out only upon the certificate of the engineer; and such conditions so imposed, are binding upon the town commissioners of highways. People v. McIntyre (supra). Similarly, the Act of 1875 (ch. 482, Laws of 1875) as amended by chapter 544, Laws 1881, giving to the board of supervisors of any county, containing an incorporated city of over 100,000 inhabitants, where contiguous territory has been mapped out into streets and avenues, the power to lay out, open and grade the same, authorizes the board to provide for the issue of short-term town bonds, upon which to borrow money to pay awards to landowners. The fact that the act authorizes the issuing of long term bonds for certain, special and extraordinary expenditures to be incurred does not exclude an intent to bestow authority to borrow money on the town bonds for other purposes. Hubbard v. Sadler, supra.

Revocation of grant of power.— The legislature, in conferring on boards of supervisors the power of legislating with respect to a subject, does not surrender its own power over that subject. On the contrary, it may at any time reassume its original authority with respect thereto. Queens County v. Petry, (1900) 54 App. Div. 115, 66 N. Y. S. 447, 1142; Matter of Reddish, (1899) 45 App. Div. 37, 60 N. Y. S. 1111. See also Spring v. Wait, (1880) 22 Hun 441.

Delegation to special commission of particular power lying within general powers of supervisors.- Chapter 89 of the Laws of 1901, appointing specified residents of the county of Oneida a board of commissioners to erect a court house in the city of Utica, is in violation neither of section 2, article 10 of the Constitution providing for the election or appointment of county officers nor of this section. "The act in question is temporary, designed to accomplish but one object, and that is, the providing of a court house for the county. As soon as the land is acquired and the court house is constructed the duties of the commissioners terminate and all of the duties devolving upon the board of supervisors by law with reference to the care and custody of county property, the preservation and repair thereof, continue as before. There is not, therefore, any abolition of the office of supervisor, or of the general duties devolving upon the board of supervisors.” People v. Oneida County, (1902) 170 N. Y. 105, 62 N. E. 1092, affirming 68 App. Div. 650, 74 N. Y. S. 1142.

Presumption as to regularity of act of supervisors. The acts of the boards of supervisors when legislative in character are presumed to be regular. A particular act is not rendered invalid by an omission to show on its face a compliance with the preliminary step prescribed by the statute under which the board acted. People v. Carpenter, (1861) 24 N. Y. 86.

Judicial review of action of supervisors.- Legislation enacted by a board of supervisors in pursuance of statutory authority is not subject to review by certiorari. People v. Queens County, (1897) 153 N. Y. 370, 47 N. E. 790, affirming 14 App. Div. 608, 43 N. Y. S. 1121; People v. Queens County, (1892) 131 N. Y. 468, 30 N. E. 488. See also Weston v. Syracuse, (1899) 158 N. Y. 274, 53 N. E. 12, 70 A. S. R. 472, 43 L. R. A. 678, reversing 82 Hun 67, 31 N. Y. S. 186. Thus in People v. Queens County, (1892) 131 N. Y. 468, 30 N. E. 488, it appeared that the board of supervisors of Queens county, claiming to act under authority of the Act of 1869 (§ 2, ch. 855, Laws of 1869) extending the powers of that board, had passed an act "for the improvement of public highways in the town of Jamaica,” which provided for the issuing of bonds by the county treasurer to pay the expenses of the improvement, the whole expense to be paid by taxes to be levied on

Compensation of Public Officers

Art. III, § 28

the town. The court said: "This act of the supervisors of Queens county was purely a legislative act. Legislative power was devolved upon them under the constitution by the legislature, and the act was as purely legislative as if it had been passed by the legislature itself. If this action by the supervisors can be reviewed by certiorari, then every act and resolution of the board of supervisors, every ordinance of a city board of aldermen, every ordinance and resolution of a village board of trustees, and generally all the acts of public officers involving the exercise of some discretion could be reviewed in the same way; and thus there would be a wide departure from the practice and procedure which have always prevailed in this state, and much embarrassment might attend the discharge of legislative, executive and administrative functions by public officers, local boards and state departments." The administrative or judicial acts of a board of supervisors or of a common council of a city are reviewable, however. Thus a resolution of a common council modifying a sewer contract, if passed by means of fraud and corruption, can be declared of no effect by the courts; and its invalidity is available as a defense to the city when sued by the contractor upon the contract. Weston v. Syracuse, (1899) 158 N. Y. 274, 53 N. E. 12, 70 A. S. R. 472, 43 L. R. A. 678, reversing 82 Hun 67, 31 N. Y. S. 186. See also Talcott v. Buffalo, 125 N. Y. 280, 26 N. E. 263.

Conflict of statute of supervisors with legislative enactment.- The rule that a general law does not repeal a special law unless the intent to repeal it is clearly manifest, is not applicable where a local statute, passed by a board of supervisors pursuant to a general law, comes into conflict with a general law of the legislature subsequently enacted upon the same subject. Matter of Reddish, (1899) 45 App. Div. 37, 60 N. Y. S. 1111. Conferment on supervisors of power to open and grade streets. The legislature has power, under the Constitution, to grant to a board of supervisors powers of local legislation in regard to the opening, grading and constructing of streets and highways in the county towns. Under such authority it is a lawful delegation of its powers to provide for the opening, grading and construction of streets, for the levying of assessments and for the collection thereof, and for a sale by the supervisors of the property assessed for their nonpayment. Robert v. Kings County, (1896) 3 App. Div. 366, 38 N. Y. S. 521, affirmed, (1899) 158 N. Y. 673, 52 N. E. 1126.

Power to require appointment of commissioners in condemnation proceedings. Under this section the legislature can delegate to boards of supervisors the power of providing the occasion for, and of requiring the appointment of, commissioners to ascertain damages in condemnation proceedings. In re Church, (1883) 92 N. Y. 1, affirming 28 Hun 476.

Power to authorize the building of bridges. While the legislature is prohibited by article 3, section 18, from passing any private or local law for the building of a bridge, it may, under this section, confer the power of such local legislation on boards of supervisors. Kirkwood v. Newbury, (1890) 122 N. Y. 571, 26 N. E. 10, affirming 45 Hun 323, 12 N. Y. St. Rep. 420; People v. Queens County, (1888) 112 N. Y. 585, 20 N. E. 549, affirming 48 Hun 324, 1 N. Y. S. 382.

Power to enact regulations to protect fish. The legislature is competent under this section to authorize the boards of supervisors to prescribe regulations for the protection of oysters and other fish. Smith v. Levinus, (1853) 8 N. Y. 472.

8 28. Extra compensation to public officers prohibited.

The Legislature shall not, nor shall the common council of any city, nor any board of supervisors, grant any extra compensation to any public officer, servant, agent or contractor.