Now, therefore, in pursuance of the power vested in us by section 65 of the Town Law, we, the undersigned members of the town board of such town, do hereby appoint N. O. of said town to fill the vacancy existing in such office of commissioner of highways; the said N. O. shall hold such office until the next biennial town meeting (*) in such town. and until his successor is elected or appointed and has qualified, as provided by law. In witness whereof, we have hereunto set our hands at........ in said town, on the........day of... B. F., Supervisor. and seals, (Add other signatures of members of the town board, with designation of office, and seals.) *If town meetings are held at time of general election, the vacancy should be filled to the first day of January following the election. FORM NO. 6. To N. O.: Notice of Appointment to Office of Commissioner. You are hereby notified that you were appointed by the town board of the town of. county of.... as commissioner of nighways in and for the said town to fill the vacancy in that office occasioned by the (resignation or as the case may be) of M. N., the former incumbent of such office; such office is to be held by you until the next biennial town meeting of such town [ (or), until and including the 31st day of December succeeding the next biennial town meeting.] Such appointment was duly executed by the members of said town board and filed in my office on the........day of............ 19..... as provided by law. Dated..... 19.... C. Z., Town Clerk. § 8. Delivery of books and papers by outgoing commissioner to his successor.-Whenever the term of office of any supervisor, town clerk, commissioner of highways or overseer of the poor shall expire, or when either of such officers shall resign, and another person shall be elected or appointed to the office, the succeeding officer shall, immediately after he shall have entered on the duties of his office, demand of his predecessor all the records, books and papers under his control belonging to such office. Every person so going out of office, whenever so required, shall deliver upon oath to his successor 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, and shall, at the same time pay over to his successor the moneys belonging to the town remaining in his hands. If any such officers shall have died, the successors or successor of such officer shall make such demand of the executors or administrators of such deceased officer, and such executors or administrators shall 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. If any person so going out of office, or his executors or administrators, shall refuse or neglect, when lawfully required, to deliver such records, books or papers, he shall forfeit to the town, for every such refusal or neglect, the sum of two hundred and fifty dollars; and officers entitled to demand such records, books and papers may compel the delivery thereof in the manner prescribed by law. (Town Law, § 84). Proceedings to compel delivery of books and papers.-The following section of the Code of Civil Procedure provides the procedure for compelling a commissioner of highways to deliver the books and papers pertaining to his office to his successor: A public officer may demand from any person in whose possession they may be, a delivery to such officer of the books and papers belonging or appertaining to such office. If such demand is refused, such officer may make complaint thereof to any justice of the supreme court of the district, or to the county judge of the county in which the person refusing resides. If such justice or judge be satisfied that such books or papers are withheld, he shall grant an order directing the person refusing to show cause before him at a time specified therein, why he should not deliver the same. At such time, or at any time to which the matter may be adjourned, on proof of the due service of the order, such justice or judge shall proceed to inquire into the circumstances. If the person charged with withholding such books or papers makes affidavit before such justice or judge that he has delivered to the officer all books and papers in his custody which, within his knowledge, or to his belief belong or appertain thereto, such pro ceedings before such justice or judge shall cease, and such person be discharged. If the person complained against shall not make such oath, and it appears that any such books or papers are withheld by him, such justice or judge shall commit him to the county jail until he delivers such books and papers, or is otherwise discharged according to law. On such commitment, such justice or judge, if required by the complainant, shall also issue his warrant directed to any sheriff or constable, commanding him to search, in the daytime, the places designated therein, for such books and papers, and to bring them before such justice or judge. If any such books and papers are brought before him by virtue of such warrant, he shall determine whether they appertain to such office, and if so shall cause them to be delivered to the complainant. (Code Civil Procedure, § 2471a, as inserted by L. 1893, ch. 179). In proceedings to compel an officer to deliver books and papers to his successor, brought under the above section, all that the petitioner is required to establish is his election and that he has duly qualified; questions as to the validity of his election cannot be determined in such a proceeding. Matter of Bradley, 141 N. Y. 527. § 9. Compensation of commissioner.-The compensation of the commissioner of highways is fixed by subdivision 1 of § 178 of the Town Law, as amended by L. 1904, ch. 312, which reads as follows: 1. The supervisor, except when attending the board of supervisors, town clerk, assessors, justices of the peace and overseers of the poor, each two dollars per day, except that in any town where the assessed valuation of real estate is over twenty milion dollars, the town board of such town may determine by resolution that the assessors shall receive each year a salary of not exceeding one thousand dollars in lieu of per diem compensation hereinbefore provided for, and except that the town board of any town may fix a different compensation for the assessors in their town, of not less than two nor more than three dollars per day, each, and also except that in the county of Monroe, assessors shall be entitled to three dollars per day, and also, except that in the county of Nassau assessors and commissioners of highways shall be entitled to three dollars per day, and the town boards of the towns of and in said county of Nassau, having a population, as appears by the last federal census, of seventeen thousand inhabitants, or more, are hereby authorized and empowered to fix an annual compensation for the assessors and commissioners of highways of said towns, not to exceed twelve hundred dollars per annum each, and to provide for the payment of said compensation, in quarterly installments. The town board of any town may, at a regular meeting, fix the compensation of the commissioner of highways of such town at a sum of not less than two nor more than three dollars per day. CHAPTER II. The Highway Law. L. 1890, chap. 568.—An Act in relation to highways, constituting chapter 19 of the general laws. II. Assessment for highway labor. (§§ 30-59a.) III. The duties of overseers of highways, and the performance of highway labor. (§§ 60-74.) IV. Laying out, altering and discontinuing highways and laying out private roads. V. Bridges. (88 130-145.) VI. Miscellaneous provisions. VII. The regulation of ferries. (§§ 80-123.) (§§ 150-165.) (§§ 170-174.) VIII. County Supervision of highways. (§§ 180-189.) IX. Repealing and other clauses. (§§ 200-203.) ARTICLE I. Highway Officers, Their General Powers and Duties. Section 1. Short title. 2. Treasurer of highway commissioners. 3. Powers of one commissioner. 4. General powers of commissioners. 5. Mile-stones and guide-boards. 6. Road machines and implements. 7. Stone-crushers and materials. 8. Custody of stone-crushers. 9. Additional tax. 10. Extraordinary repairs of highways or bridges. 11. Auditing expense thereof. 11a.Damages for change of grade. 12. Accounts, how made out. 13. Unsafe toll-bridge. 14. Drainage, sewer and water pipes in highways. 15. Actions for injuries to highways. 16. Liability of towns for defective highways. 17. Action by town against commissioners. 18. Audit of damages without action. 19. Reports of commissioners. 20. General duties of overseers. 21. Opening obstructed highways. 22. Penalties against overseers. 23. Penalties, how collected. 24. Compensation of overseers. 25. Division of towns into highway commissioner districts. |