211 A.D. 629 | N.Y. App. Div. | 1925
Section 320-b of the Highway Law (added by Laws of 1920, chap. 840, as amd. by Laws of 1922, chap. 162) provides in part as follows: “ The moneys paid by the State together with an equal amount appropriated by the county and moneys appropriated by the towns shall become a common fund for the purpose of determining the places where and the manner in which such money shall be expended as provided herein. The board of supervisors of any county shall determine the place where and the manner in which such moneys shall be expended for the construction and improvement of highways or roads, pursuant to the provisions of section three hundred and twenty or three hundred and twenty-a of this chapter, or pursuant to any other general or special law authorizing county aid in the construction and improvement of highways or roads within the county other than county highways. Such determination shall be in triplicate signed by the chairman and clerk of the board and be approved by the State Highway Commission before the same shall take effect.” All the powers and duties of the State Highway Commission under said statute were in 1923 by the Public Works Law transferred to and were directed to be exercised and performed by the State Superintendent of Public Works as the head of the State Department of Public Works through the Bureau of Highways, the head of which bureau is the Commissioner of Highways who exercises and performs his powers and duties under the supervision, direction and control of the Superintendent of Public Works. The board of supervisors of Ulster county pursuant to said section 320-b of the Highway Law made a determination as to “ the place where and the manner in which ” the money indicated by said statute should “ be expended for the construction and improvement of highways or roads ” and presented such determination to the State Highway Commissioner for approval. The Commissioner disapproved of the same. The purpose of this proceeding is not merely to compel action by the Commissioner, for he has acted, but to compel him to act in a particular manner by approving of the determination of the supervisors, and the order from which the appeal is taken requires such approval. When the statute declares that the determination shall be approved there is implied the right and duty to disapprove if the facts warrant such disapproval. The approval by the Commissioner is not a perfunctory requirement of the statute but there is involved the exercise of discretion and judgment in the discharge of a public duty. This discretion should be exercised not arbitrarily or capriciously' but fairly and impartially. The statute clearly intends, however, that the bo%rd of supervisors and the State
Order reversed on the law, with costs, and motion denied, with fifty dollars costs and disbursements.