
    The People of the State of New York ex rel. Samuel H. Graham, Respondent, v. Edwin F. Studwell, as Supervisor, and Others, Composing the Town Board of the Town of Rye, and the Town of Rye, Appellants.
    
      Work done by a commissioner on an unsafe highway, involving an expense in excess of the money in his hands, without the previous consent of the town board, — mandamus is not the remedy by which its consent can be secured — qusere as to its right to ratify such acts.
    
    Section 10 of the Highway Law (Laws of 1890, chap. 568, as amd. by chap. 84 of the Laws of 1899), provides * ‘ If any highway or bridge shall at any time be damaged or destroyed by the elements or otherwise, or become unsafe, - the commissioner of highway» 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; but if the expense thereof exceed five hundred dollars, it shall be done under a written contract therefor, which must be approved by the town board, and the commissioners of highways shall present the proper vouchers for the expense thereof to the town board at their next annual meeting, and the same shall be audited by them and collected in the same manner as amounts voted at town meetings.’’ The commissioner of highways of a town, witho'ut the previous consent of the town board, expended moneys, in excess of the amount in his hands, for the purpose of repairing highways which were in a dangerous and unsafe condition.
    
      Held, that a writ of mandamus would not issue, commanding the officers of the town to convene as a town board and give their consent to the payment of the highway commissioner’s claim for reimbursement;
    That the fact that the condition of the highways in question was such that the town board, if applied .to, would undoubtedly have consented to the making of the necessary repairs, afforded no reason why the mandamus should be issued.
    The consent mentioned in the statute is a judicial act in that it contemplates a decision based upon the evidence as to whether or not the highways are unsafe and require immediate repairs.
    The court has no power to transform the judicial act of consent into the ministe- ■ rial act of mere approval of the acts of the highway commissioner.
    
      Qumre, whether the town board, if they so elected, could, after the work was . done, ratify the acts of the highway commissioner.'
    Appeal by the defendants, Edwin F. Studwel], as supervisor, and others, composing the town board of the town of Eye, and another, from an interlocutory order in favor of the plaintiff,' entered in the office of the clerk of the county of Westchester on the 6th day of October, 1903, upon the decision of the court, rendered after a trial at the Westchester Special Term, overruling the defendants’ demurrer to an alternative writ of mandamus theretofore issued herein.
    
      Herbert Reeves [George A. Slater and Alexander S. Rowland with him on the brief], for the appellants.
    
      Charles P. Cowles [Justus A. B. Cowles with him on the brief], for the respondent.
   Jbnks, J. :

An alternative writ of man damns commands the defendants as officers of the town of Eye to convene as a town board and “ give your consent in the manner provided by law to the payment ” of a claim of the relator. As the defendants have demurred, the facts, being thus stated by the relator, are as follows: The relator Graham was during the period of time from April, 1895, to January, 1902, one of the commissioners of highways of the town of Rye, duly elected and qualified to act as such officer, and while so acting, he performed the- work, labor and services for the repair of the highways hereinafter mentioned, in excess of the money in his hands as such commissioner of highways as hereinafter stated, upon certain of the highways of the said town, which said highways were all within the district assigned to him as such commissioner of highways by the town board of the town of Rye in the manner provided by law, and the said relator on or about the 26th day of December, 1901, presented his account as one of the highway commissioners of the town of Rye in proper form, duly verified, including an account of the said work, labor and services to the town auditors of the said town, and thereafter the said town auditors of the town of Rye found the same correct, except that-the said town auditors found that the said relator had spent over and exceeding the money in his hands as such commissioner of highways the sum of $1,230.50 for the repair of the said highways. The said sum included the items of the said work, labor and services, which constitute the said claim of the relator, said items being :

Overwork on Locust avenue (near residence of Le Roy
E. Ganun....................................... $46 00
Overwork on general repairs to highways.............. 217 25.
Overwork on Elm street,........................... 218 75
Overwork oh Glenwood road...................... 494 50
Overwork on Kirby avenue.......................... 234 00
Total........................................ $1,210 50

The said work, labor and services were expended by the said relator as such commissioner of highways upon the said highways for the repair of the said highways, which then were in a dangerous and unsafe condition, and the said relator has duly presented his said claim to the town board of the town of Rye, and has duly requested the said town board of the town of Rye to give their consent 'to the payment of his said claim, and the said Town board of the town of Rye have refused to give their consent to the> payment of the same or any part thereof, and the said town, board of the town of Rye then was, and now is, composed of the defendants Edwin F. Studwell, as supervisor; A.. W. W. Marshall,, as town clerk, and Wilson E. Wakefield, Stephen A. Marshall,. Bernard Baruch and Patrick Kane as justices of the peace.

The grounds of the demurrer are :/ (1) That said writ does not state facts sufficient to constitute a cause of action, or sufficient to-justify the commands of the writ, or any part of such commands (2) that said writ is issued to a person, officer or board to control a discretion conferred by law upon them; (3) that said writ com-, raands the doing of an act which the respondents have no power to perform, and (4) that the mandamus herein was not, and a mandamus is not, the relator’s proper remedy. The demurrer was overruled and the defendants appeal. I think that the demurrer should, have been sustained. ■

■ The consent in the manner provided by law is that specified by-section 10 of the Highway Law (Laws of 1890, chap. 568, as amd.. by Laws of 1899, chap. 84), which' reads as follows: “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, but if the expense thereof exceed five hundred dollars, it shall be done under a written contract therefor,., which must be approved by the town board, and the commissioners-of highways shall present the proper vouchers for the expense-thereof to the town board at their next annual meeting, and the-, same shall be audited by them and collected in the same manner as-amounts voted at town meetings.” I think that this statutory consent is not satisfied by a confirmation or approval, after the work has been done, but that the statute requires an assent to the doing-of the work, inasmuch, as the giving of the consent involves a determination whether the work is or was proper. Consent supposes a physical power to act, a moral power of acting, and a serious, determined and, free use.of these powers. (Bouvier Law Diet;). Consent, as a substantive is the synonym of assent, acquiescence, concurrence,, and means an agreement or harmony of opinion or sentiment.. (Clem v. State, 33 Ind. 418, 431.) Consent is an act of reason, accompanied with deliberation. (And. Law Diet., quoting 1 Story Eq. Juris. § 222.) Judge Story, in his work cited, says: “ Consent is an act of reason, accompanied with deliberation, the mind weighing as in a balance, the good and evil on each side. And, therefore, it has been well remarked by an able commentator upon the law of nature and nations that every true consent supposes three things: First, a physical power; secondly, a moral power; and, thirdly, a serious and free use of them.” Consent is “ to agree in sentiment; be of the same mind; accord; be at one.” Con-sentire, to “ feel together.” (Cent. Diet.) If the statute regard such approval as is sought as tantamount to assent, then the town board is but a mere auditing body, There is already provided by law a town board of auditors, and the law would not, save for some special reason, provide a dual audit. The learned counsel for the relator argues that as it stands admitted upon the record that the highways repaired were in an unsafe and dangerous condition, the situation required the town board to consent. This is no reason why the commissioner should disregard the law. “Necessity cannot in any event take the place of statutory authority.” (Parker, Ch. J., in People ex rel. Morey v. Town Board, 175 N. Y. 394, 400.) But there is not even the plea of necessity in this case. Necesssity of repairs, yes, but not necessity .to disregard the requirement of submission to the town board. The emergency must be dire indeed that justifies an official to disregard the plain formulated procedure of the law. Even in so small an affair such omission smacks too much of prerogative and dispensation td commend itself to the courts. Moral certainty as to the result of an official act is no sufficient reason for not invoking the action. The town board, as well as the commissioner, must determine upon the work, even if the discharge of its duty must have been an accord.

The learned counsel for the respondent argues that if the board had refused consent, mandamus would have issued to compel consent. .Even if the act was “ plainly administrative and mandatory, and not .discretionary,” and was, therefore, imperative, to quote the language of Andrews, Oh. J., in People ex rel. Keene v. Supervisors (142 N. Y. 271), that argument, available in case the town board had refused fits consent after opportunity had been afforded to it to pass upon the projected work, cannot be stretched so as to excuse the omission to seek their consent. But the consent named by the statute is plainly a judicial act in that it contemplated a decision whether or not the highways were damaged or destroyed so as to become unsafe, and to require immediate repair. This required the consideration of a question of fact, and a determination based upon the evidence, and w&s, therefore, a judicial function. (See People ex rel. Loughran v. Railroad Comrs., 158 N. Y. 421, 429.) The learned counsel for the respondent cites threé cases to sustain the proposition that the town board has the power to ratify the acts of the relator after the work was done. In Trustees, etc., v. Bowman (136 N. Y. 521, 526) the trustees of the town, having full power to sell the lands, appointed a coinmittee with certain enumerated powers, and one of the committee thereafter and without authority wrote into the resolution certain words of power pursuant to which a conveyance was made to the defendant. In an action to cancel the deed as ultra vires, the court, per Earl, J., said that the trustees could have ratified the conveyance which had not been authorized. That power is put upon the express ground that the trustees acted for the town and were clothed with authority to convey the lands. In Peterson v. Mayor (17 N. Y. 449) the question was substantially similar, in that there was an “officious employment” by a committee instead of the due employment by the board itself. In Kramrath v. City of Albany (127 N. Y. 575, 581) the holding applicable to this case was that a committee duly empowered in the premises might ratify and confirm the irregular action of one of its number in ordering and selecting goods. Moreover, these acts, of ratification in the three cases cited are based explicitly upon the doctrine of principal and agent. But this commissioner of highways was not the agent of the town. (People ex rel. Morey v. Town Board, supra.) This is not a case when officials, clothed with due authority, have ratified an act performed in their stead, but one in which they resist an attempt of an official who has disregarded their judicial rights to have the court ■ substitute an ex post facto ministerial act. The case last cited presents an elaborate discussion by Parker, Ch. J., on the principles applicable to the case at bar. In the course thereof he cites with approval this language of Andrews, J., in People ex rel. Everett v. Board of Supervisors (93 N. Y. 397): “ To impose liabilities upon towns for the repair of their roads and bridges in any other manner than that provided by the statute would defeat the policy of the law as it has stood in this State for upwards of half a century, and would require explicit statutory provision to authorize it.”

While it is entirely true for the purpose of the demurrer that the facts as stated in the petition are to be taken as true, namely, that the highways were in a dangerous and unsafe condition, yet aside from the consideration of the demurrer it may be germane to say that the court would have no power to relegate the judicial act of consent into the ministerial act of mere approval. And yet the court has, in its alternative writ, done exactly this thing by “ commanding” the board to convene and to gime its consent in the manner provided iy la/w to the payment of the claim. It requires no citation of authorities to support the statement that judicial action may be directed, but the resulting judgment cannot be dictated by the mandamus. This appeal does not hang upon the good faith of the commissioner, to whom no wrongdoing is ascribed, but upon the legality of the practice of seeking to bind the town for work upon, the ground that it was necessary, disregarding the plain, statutory provisions which are prerequisite to the initiation of such work.

The' order should be reversed, with ten dollars costs and disbursements.

All concurred. ,

Order reversed and proceeding dismissed, with costs.  