111 N.E. 1057 | NY | 1916
This appeal presents the question whether the state commissioner of highways is entitled to a peremptory writ of mandamus directing and requiring the board of supervisors of Onondaga county to convene and cause certain towns within that county to assess, levy and collect certain taxes for the maintenance of certain state and county highways in said towns.
The state commissioner of highways, under the existing law, has the general supervision of all highways and bridges which are constructed or maintained in whole or in part by the aid of state moneys. (Highway Law [Cons. Laws, ch. 25], section 15.) The supervisory powers of this official involve wide discretion as to the construction and maintenance of the highway system of the state and the exercise of this discretion necessarily affects the manner in which the funds to be raised by the state, counties and towns relating to such construction and maintenance shall be collected and disbursed.
On October 28, 1912, the state commissioner of highways transmitted to the clerk of the board of supervisors of the county of Onondaga a statement in writing specifying the number of miles of improved state and county highways in each town of said county and the proportionate amount which each town was required to pay into the county treasury on account of the maintenance of such state and county highways within said towns for the ensuing year, 1913. This notice was given pursuant to section
In assessing the tax for highway maintenance in December, 1912, the board of supervisors omitted four of the highways referred to in this statement. The refusal of the appellant to include the amount required for the maintenance of these highways in the tax for 1913 is based upon the contention that four of said highways had not been completed and accepted by the proper officials upon the date of the receipt of the statement of the state commissioner of highways. On behalf of the respondent it is contended that upon the receipt of the notice of the state commissioner of highways transmitted pursuant to section
Section
"§ 134. Acceptance of county highway. — Upon the completion of a county highway or section thereof, constructed or improved under a contract let as provided in this article, in accordance with the terms and provisions of such contract and with the plans and specifications forming a part thereof, it shall be the duty of the state *427 superintendent of highways to so certify to the commission, and if the commission shall approve, the commission shall inform the district or county superintendent and the board of supervisors of the county in which such highway or section thereof is located in writing, that it will accept the work on behalf of the state and county within twenty days from the date of such notice, unless protest shall be filed with him in writing by the district or county superintendent or by the chairman of the board of supervisors. In case a protest is filed the commission shall hear the same and if it is sustained it shall delay the acceptance of the highway or section thereof until it be properly completed. Upon the proper completion of such highway or section thereof and after filing the notice above given it shall be deemed to have been accepted by the board of supervisors of such county and thereafter it shall be maintained as provided in this chapter." (Amd. L. 1911, ch. 646.)
Section
"Cost to town for maintenance of state and county highways. — Each town shall pay for the maintenance and repair of state and county highways each year the sum of fifty dollars for each mile or major fraction of a mile of the total mileage of state and county highways within the town, each incorporated village shall pay for such maintenance and repair at the rate of one and one-half cents for each square yard of surface of such improved highway maintained by the state within its corporate limits, and each city of the third class shall pay for such maintenance and repair at the rate of three cents for each square yard of surface of such improved highway maintained by the state within the incorporated limits of such city. On or before the first day of November in each year the commission shall transmit to the clerk of the board of supervisors of each county, to the board of trustees of each village and to the common council of said city a statement specifying the number of miles of improved *428 state and county highways in each town, the number of square yards of surface of such improved highway as hereinbefore provided in each village or said city, in such county and the amount which each of such towns, villages and cities, is required to pay into the county treasury on account of the maintenance of state and county highways and a copy of such statements shall be forwarded to the county treasurer. The board of supervisors of the county, the board of trustees of an incorporated village and the common council of said city shall cause the amount to be paid by each town, incorporated village and said city of the county, to be assessed, levied and collected therein in the same manner as other town, village, and city charges, in the several towns, villages and cities of the third class, and such amount when collected shall be paid into the county treasury to the credit of the fund for the maintenance of state and county highways in the several towns, incorporated villages and said cities of the county." (Amd. L. 1912, ch. 83.)
These sections of the Highway Law define a consistent method of procedure to be followed in reference to the maintenance and repair of state and county highways and the manner in which the state and the towns in which the highways are located shall pay their respective proportions of the expense incurred. Section 134 and the other sections of the Highway Law, which relate to the construction and maintenance of highways, contemplate that the state shall project the improvement and employ the contractor, and that during the progress of the work the duties and powers of the towns shall be suspended until the work is accepted by the state. (Farrell v. Town of North Salem,
It follows that the order appealed from should be affirmed, with costs.
WILLARD BARTLETT, Ch. J., CHASE, COLLIN, CUDDEBACK, CARDOZO and POUND, JJ., concur.
Order affirmed. *432