
    Frank E. Smith, Plaintiff, v. Julius A. Roberts, as Clerk of the Board of Supervisors of the County of Essex, Defendant.
    (Supreme Court, Fulton Special Term,
    September, 1908.)
    Counties — Board of supervisors — Powers in general — Power to fix and change the site of county buildings.
    The county seat is the place provided for holding courts of record in the county and it need not be located in buildings or upon a site owned by the county.
    The action of the board of supervisors of a county taken at a special meeting thereof is not rendered illegal because the meeting is held in a place other than the usual meeting place of the board.
    The provisions of the County Law relating to the location of county buildings and providing for changing the site of any county building authorize changing a site previously fixed in the manner provided by the statute for the erection of county buildings although no county buildings have been erected thereon and are to be construed as though they provided for changing the site for any county building.
    It was the intention of the Legislature that it should be left to the county to make repeated and successive selections of sites for county buildings and not to compel a county to build upon the first site selected whether the same proved suitable or not.
    Application by the plaintiff for an injunction pendente lite.
    
    
      Edgar T. Brackett (Carleton H. Lewis, of counsel), for plaintiff.
    Pyrke & Dudley, for defendant.
   Spencer, J.

Much confusion has marked the discussion of this application because of failure to discriminate between a county seat and the site of county buildings. A county seat is the building where a court of record is held and is designated in the manner provided by article III, section 31 et seq., of the Code of Civil Procedure. A county seat need not be located in buildings or upon a site owned by the county.

It is, however, within the powers of each county to own and maintain buildings for the use of its various public officers and for the use of the courts. So far as the latter, are concerned they are not limited to such buildings, but may change from time to time upon the contingencies mentioned in the sections of the Code to which reference has been made.

The changing of the site of any county building is purely a matter of business and regulated by the provisions of the County Law, sections 31, 32. The statute provides for the selection and purchase of new sites and the erection of new buildings. In so doing the old sites and buildings are to be retained and used until new sites are selected and new buildings erected and accepted.

Coming to the facts in this case it appears that certain Essex county buildings, including the court-house, have been for many years located in the town of Elizabethtown. In 1904 proceedings were taken by the board of supervisors, as provided in and by the County Law, to change the sites of these buildings to the village of Westport. A proposition to that end was submitted to the electors and ratified by a majority. Since such action no land has been purchased or anything done in the way of erecting new county buildings there.

It further appears that in 1908 the board of supervisors again took action to change the site so located in the village of Westport to another site within the village of Port Henry, and such proposition is now being published for submission to the electors of the county. The plaintiff, as a taxpayer, brings this action, alleging that such proceedings are illegal and that the expense of such publication constitutes a waste of the public funds. He prays for an injunction staying the defendant, as clerk of the board of supervisors, from proceeding with such publication or further carrying out the instructions of the board in regard to the matter.

The first ground of illegality urged is that the action by the supervisors was taken at a special meeting held in Port Henry, whereas their usual meeting place has been Elizabethtown. I am not referred to any authority on this subject and am of the opinion that the objection is futile.

The next ground of illegality is that the site of the county buildings is still at Elizabethtown; that the removal to West-port constituted merely a proposed site to be accomplished in futuro. This might be so if the actual purchase of land and the erection of buildings were necessary to constitute a new site. It is true that a court-house site should have a court-house upon it, but a site for a court-house need not. All that the statute contemplates as to the location of the new site is that the petition shall state the place at or near which it is proposed to locate such new buildings or offices.” The statute assumes the impracticability of designating the particular plot of ground upon which the new buildings are to be erected. The important question is whether the site shall be removed to a certain town or village, and not whether a particular plot therein shall be employed.

It is also objected that the petition does not describe the buildings whose location it proposes to change, and the argument is made that the county seat being still at Elizabeth-town the buildings there should have been described. As there are no buildings at Westport the plaintiff also contends that the petition prays for a change of buildings where none exists.

I think these arguments fail to apprehend the intention of the statute. Many instances must arise where no building will actually be changed or removed. Such is the case here. There has been no attempt to make any physical removal of the buildings from Elizabethtown, but only to remove all of the county offices connected with said court-house and said county buildings. The proceedings had to do only with change of site and not with the removal of buildings. The county still owns the site and buildings at Elizabethtown and may put them to such uses as public policy may dictate. This does not prevent the selection of a new site and the erection of new buildings elsewhere. It is the express declaration of the statute that the county shall retain and use the old site and buildings until the purchase of a new site and the erection of new buildings and their acceptance by the supervisors.

The decision to change the site from Elizabethtown to Westport was not, as the plaintiff argues, a nullity. As between these two sites the electors preferred the latter and their decision stands until they select another. Having selected a site circumstances occurring subsequently may render the situation undesirable or unavailable and, therefore, it may be proper or necessary to change to another location or town. The fact that land has or has not been purchased or that buildings have or have not been erected or that offices have or have not been removed is immaterial. The matter still rests with the people to decide, and changes may be made as often as they vote approval.

If such changes were attempted as a matter of mere caprice it might be regarded as a waste of public funds, but it clearly appears that no substantial loss or expense will be incurred by the submission of the present proposition to the electors.

The plaintiff argues that the language of the statute is mandatory and that the electors, having ratified the selection of a site made by one board of supervisors, a succeeding board may not submit another proposition,but that their sole duty is to proceed with the purchase of a site and the erection of buildings at Westport. He also emphasizes the danger of repeated submissions. I think this is imaginary and not real. It seems more reasonable that the Legislature should leave the counties to make repeated and successive selections than to compel them to build upon the first site selected, whether the same prove suitable or not.

I am, therefore, of the opinion that the present proceedings are regular and that the application for an injunction should be denied.

Ordered accordingly.  