Opinion
June, 1905.
John Cadman, for the relator.
J. Rider Cady and Rockefeller Holsapple, for the respondents.
By section 10 of the Highway Law (Laws of 1890, chap. 568, as amd. by Laws of 1899, chap. 84) it is provided that "if any highway or bridge shall at any time be damaged or destroyed by the elements or otherwise or become unsafe, the commissioner of highways of the town in which such highway or bridge may be, may cause the same to be immediately repaired or rebuilt if consented to by the town board * * *."
This provision of law was considered by this court in the case of Livingston v. Stafford ( 99 App. Div. 108), in which case this court held that this act was to enable the commissioner of highways to meet an emergency. At page 110, Mr. Justice HOUGHTON, writing for the court, says: "Roads and bridges might be damaged or destroyed by flood and storm shortly after the holding of a town meeting, and the delay incident to a vote and the levying and collecting of a tax would put the inhabitants to great inconvenience. To relieve this and to provide a means for quick restoration of the roadway, the law of 1858 was enacted giving extraordinary powers to the highway commissioner and town board. That it was intended to give this extraordinary power to these officers of the town only in case of emergency, is clearly evidenced by the language restricting the destruction or damage to a period after the town meeting should have been held, or when too late to give notice that an appropriation would be asked for." The learned justice then proceeds to state that the present law gives no broader power, and that the statute as it now reads should be held to be a statute providing for an emergency where a bridge was destroyed by some extraordinary cause, and public convenience might call for its speedy replacement. Within the reasoning of this authority, if after a bridge has been destroyed its rebuilding has been delayed beyond the time when one or more town meetings have been held, there can no longer be found an emergency which would call for action upon the part of the highway commissioner without the direction of the town and a provision by the town meeting for funds for the rebuilding of the bridge. This bridge was destroyed in January, 1901. This application was not made until the summer or fall of 1903. There would seem to be no authority, therefore, in the highway commissioner now to proceed under section 10 of the Highway Law (as amd. supra) for the rebuilding of this bridge.
If this court be wrong in the rule laid down in the case cited, nevertheless the town board is not called upon to act until a request has been made by the highway commissioner. Its powers are limited to those specifically granted by the statute. It does not represent the town in the execution of any general duty, if such there be, to keep the highway and bridges in repair. Their only authority in respect of the bridges is to consent or approve of some contract proposed to them by the highway commissioner in those cases in which the highway commissioner is authorized to act under section 10 of the Highway Law (as amd. supra).
Again, under this section the right given to the highway commissioner upon the consent of the town board implies of necessity the right of the town board to withhold its consent. (See People ex rel. Schwab v. Grant, 126 N.Y. 473.) In that case, RUGER, Ch. J., in writing in an analogous case, says: "A power to grant a privilege to one is inconsistent with the possession on the part of another of an absolute right to exercise such privilege. The requirement that a person must secure leave from some one to entitle him to exercise a right, carries with it, by natural implication, a discretion on the part of the other to refuse to grant it, if, in his judgment, it is improper or unwise to give the required consent." If there be in the town board a right to refuse consent, the court clearly cannot by mandamus direct the discretion which it shall exercise. It seems clear, therefore, that the mandamus against the town board was properly refused.
We do not agree that the mandamus should be refused as against the highway commissioner either because too much was asked or because the town board was also included in the writ. ( People ex rel. Keene v. Supervisors, 142 N.Y. 271, 278.) We are, however, unable to find any clear specific duty in a highway commissioner to proceed to the rebuilding of the bridge without direction therefor, and provision made by the town meeting for the cost thereof. It is true he has by statute a general supervision over the roads and bridges, and the general authority and duty to keep them in repair. (See Highway Law, § 4, as amd.) That authority, however, and duty is limited by the funds which are provided for him by the town. In People ex rel. Bently v. Commissioners of Highways of the City of Hudson, etc. (7 Wend. 474), it was held that the commissioners of highways are not bound to build bridges when not in funds to defray the expenses. That was an application for a mandamus to compel the building of a bridge, in which case the mandamus was refused. In the case of People v. Adsit (2 Hill, 619) it was held that an indictment against commissioners of highways for not repairing a bridge is defective unless it avers that the defendants had funds or other means to defray the expenses of repair. COWEN, J., in writing for the court, said: "We are of opinion that the existence of funds or other specific means provided by statute is a condition precedent to the obligation of commissioners of highways to repair bridges." Highway commissioners were formerly personally liable for failure to perform their duty in keeping the highways and bridges in repair. By a long line of decisions, however, this liability did not attach unless they were provided with funds with which such repairs could be made. There is then no clear specific duty in this highway commissioner to proceed and incur an expense of $600 for the rebuilding of this bridge. If he had such right or duty to repair those roads and to rebuild this bridge and pledge the credit of the town therefor, the relator might have the right to this writ. Without such duty imposed upon him by statute it is difficult to see how this court can, by its order, direct him to proceed to build said bridge.
If we are correct in these views it follows that this final order must be affirmed.
All concurred.
Final order affirmed, with costs.