# Cossaart v. Board of Supervisors

> Appellate Division of the Supreme Court of the State of New York · January 17, 1924 · 208 A.D. 517

URL: https://www.frixlaw.com/law-library/cases/5273083

## Case

- **Full name:** In the Matter of the Application of Harrison Cossaart, for a Peremptory Mandamus Order against The Board of Supervisors of Otsego County
- **Court:** Appellate Division of the Supreme Court of the State of New York
- **Decided:** January 17, 1924
- **Citations:** 208 A.D. 517; 203 N.Y.S. 55; 1924 N.Y. App. Div. LEXIS 5079
- **Precedential status:** Published
- **Opinion:** Dissent by Hinman
- **Judges:** Hinman, Rhodes
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Hinman, J. (dissenting):
There is a question in this case which disturbs me and which does not seem to have been passed upon expressly by Mr. Justice Rhodes at the Special Term. The statute (Education Law, § 389, subd. 2, as amd. by Laws of 1910, chap. 607) provides: “ The supervisors of the towns composing any supervisory district may by adopting a resolution by a majority vote increase the salary to be paid by such district to its district superintendent. Such supervisors must thereupon file with the clerk of the board of supervisors a certificate showing the amount of such increase. The board of supervisors of each county shall levy such amount annually by tax on the towns composing such supervisory district within the county.” This statute makes no provision for a rescission of a resolution granting an additional salary.
Counsel for the respondent urges that the. negative is implied and that if it were not implied the supervisors of the district would have ample authority under the common law to rescind, repeal and nullify any action taken by them, citing as his authority People ex rel. Hatzel v. Hall ( 80 N. Y. 117, 124 ), wherein it was said: “ ‘It is a maxim in the common law, that a statute made in the affirmative, without any negative expressed or implied, doth not take away the common law.’ ” The court was there dealing, however, with the jurisdiction of the Supreme Court. The same rule would apply to any municipal corporation, body or officer which had powers at the common law. We are here dealing, however, with a purely statutory body which in 1910 was constituted for the -first time. The supervisors of certain towns, composing a supervisory district under the Education Law, were given a specific power which they had never had before. Certainly such a body created by statute had no rights at the common law to be retained under the maxim quoted in People ex rel. Hatzel v. Hall (supra). Moreover, the maxim expressio unius est exelusio alterius “ is applicable to a statutory provision which grants originally a power or right. In such case the power or right originates with the statute, and exists only to the extent plainly granted.” (2 *522 Lewis’ Suth. Stat. Const. [2d ed.] § 491.) In the same work on statutory construction (§ 551), it is said that “ Acts for the incorporation of municipal corporations and grants of power therein are to be strictly construed. And such corporations possess only such powers as are expressly conferred or necessarily implied. The same rule applies to counties and other quasi public corporations. Doubts as to the existence of a power are resolved against the corporation.” These supervisors in a supervisory district were not even made a body corporate by the statute. (Education Law, § 389, subd. 2.) They were merely authorized to adopt a resolution by a majority vote increasing the salary to be paid by their district to their district superintendent. When a certificate of their action had been filed with the clerk of the board of supervisors that board was required to levy the necessary amount “ annually ” by tax on the towns composing the district. Clearly the statute contemplated but one action by these supervisors and it was not contemplated that their action should be repeated annually. It is my opinion that the statute authorized one increase in salary by action of these supervisors and that the power of the supervisors was then exhausted. “ It is a delegated power which should not be extended by construction, implication or doubtful inference.” (Cox v. Mayor, etc., 103 N. Y. 519, 523 .) Resort should be had to legislation if further power ought to be lodged in these supervisors of a supervisory district to rescind or otherwise modify the salaries previously fixed. Since the order below has been affirmed upon the theory that the supervisors of the district in question had the implied power to rescind, to which I cannot agree, I dissent and vote for a reversal.
Van Kirk, J., concurs.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5273083. Public record. Not legal advice.