Matter of Standard Bitulithic Co., 105 N.E. 967

Matter of Standard Bitulithic Co.

105 N.E. 967 | NY | 1914

A writ of certiorari was granted at Special Term upon the petition of the Standard Bitulithic Company directed to John N. Carlisle, commissioner of highways of the state of New York, commanding him to certify and return his proceedings, decision and action in the matter of the cancellation of a contract between the state of New York and the Standard Bitulithic Company to build a state highway in the county of Suffolk, to the end that his decision and action might be reviewed and corrected.

We concur with the opinion of Presiding Justice SMITH of the Appellate Division wherein he says: "A writ of certiorari requires the respondent to certify a record. In the case at bar there is no record because there has been no trial. The highway commissioner would simply certify that he had been advised by his advisory board that *182 the specifications were inadequate to a substantial highway. Upon that return the Special Term could make no determination. The act of the commissioner in revoking this contract is to my mind purely an administrative act."

There is nothing in the Highway Law directing the commissioner of highways in a proceeding such as the one herein considered to take testimony or give the parties interested an opportunity to be heard. A trial in any judicial sense is not contemplated. The sole question requiring consideration on this appeal is, whether the act of the defendant in canceling the contract was a judicial act in nature or character. We think it was not.

A writ of certiorari is appropriate to review the judicial or semi-judicial action of inferior courts or of public officers or bodies exercising, under the laws, judicial functions, and there is no authority unless it is expressly given by statute sanctioning its use for any other purpose.

The action of the commissioner of highways was wholly administrative and not subject to review by certiorari. (Peopleex rel. Schau v. McWilliams, 185 N.Y. 92; People ex rel.Trustees Village of Jamaica v. Board of Supervisors of QueensCo., 131 N.Y. 468; People ex rel. Kennedy v. Brady, 166 N.Y. 44;People ex rel. Copcutt v. Board of Health, Yonkers,140 N.Y. 1; People ex rel. North v. Featherstonhaugh, 172 N.Y. 112;People ex rel. R. J. Co. v. Wiggins, 199 N.Y. 382;People ex rel. Graves v. Sohmer, 207 N.Y. 450; People exrel. Lodes v. Department of Health, N.Y. City, 189 N.Y. 187;People ex rel. Hayes v. Waldo, 212 N.Y. 156.)

The question whether the commissioner of highways in the administration of his office had authority to cancel the contract is not considered.

The order of the Appellate Division should be affirmed, with costs.

WILLARD BARTLETT, Ch. J., WERNER, HISCOCK, HOGAN, MILLER and CARDOZO, JJ., concur.

Order affirmed. *183