
    In the Matter of the Application of the Standard Bitulithic Company, Respondent, for a Writ of Certiorari to John N. Carlisle, Commissioner of Highways of the State of New York, Appellant.
    Third Department,
    March 4, 1914.
    Highways — cancellation, of contract for construction of State road — review of action of State Highway Commissioner — certiorari does not lie — remedies of contractor—Highway Law, section 132, construed.
    A writ of certiorari does not lie to review the action of the State Highway Commissioner canceling a contract for the construction of a State road upon the ground that, under the plans and specifications, the highway would be improperly constructed to the irreparable damage of the State.
    
      It seems, however, that if the State Commissioner of Highways stops work upon a contract without cause the State is responsible for the damage to the contractor, and he has his remedy by action before the Board of Claims.
    
      It seems, that section 132 of the Highway Law empowering the State Commissioner of Highways to cancel a contract for road construction, or to stop the work, applies only where there has been a default or failure properly to perform on the part of the contractor.
    Appeal by John N. Carlisle, as Commissioner of Highways of the State of New York, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the coupty of Albany on the 11th day of November, 1913, directing the issuance of a writ of certiorari herein and staying, pending the certiorari, the advertising and reletting of a contract for the improvement of highway No. 5,232 in the county of Suffolk.
    
      Thomas Carmody, Attorney-General [James A. Parsons and Claude T. Dawes, Deputy Attorneys-General, of counsel], for the appellant.
    
      Niles & Johnson [Henry B. Johnson of counsel], for the respondent.
   Kellogg, J.:

In October, 1912, the Standard Bitulithio Company and the State of New York, acting through the then existing Commission of Highways, entered into a contract for the construction by said company of a section, about eleven and one-half miles in length, of a State highway,'route No. 35 on Long Island, known as the Smithtown-Port Jefferson road. Soon after the making of said contract said company made preparations for building the road, and on April 8, 1913, as soon as the grade lines had been given, commenced work on the grading and culverts. On May 31, 1913, the State Commissioner of Highways, who, pursuant to chapter 80 of the Laws of 1913, which became effective March 14,1913, succeeded the State Commission of Highways and the State Superintendent of Highways, made the order complained of as follows:

“May 31, 1913.

“Whereas, A contract was entered into October 30, 1912, between the Standard Bitulithio Company of New York City, party of the first part, and the people of the State of New York, party of the second part, for the construction of the Smithtown-Port Jefferson State Highway, No. 5232, county of Suffolk, having a length of 11.59 miles; the specifications calling for a 4" bottom course of Cementitious Hudson Eiver gravel, with top course of Warrenite pavement; the estimated cost of the improvement to be $222,134.80, and

“Whereas, The performance of such contract would be against public policy and would be of irreparable damage to the State for the reason that if the highway is improved according to specifications it will not provide a proper highway to construct in said locality, and

“Whereas, After a careful investigation of the conditions in the locality through which this highway was to be constructed and a study of the plans and specifications, the Committee of Advisory Engineers has recommended the cancellation of said contract; it is

Ordered, That the contract for the improvement of the Smithtown-Port Jefferson State Highway No. 5232, county of Suffolk, be and is hereby canceled.

“ (Signed) R. K. FULLER,

Secretary.

(Signed) J. N. Carlisle,

“ Commissioner.”

The contractor is not satisfied with that determination and wants it reviewed by certiorari. The officer charged with the responsibility of performing the contract believes that the road as planned would not be for the interest of the State. The contractor thinks otherwise, and desires the court to pass judgment between them. This is in effect an attempt to compel the specific performance of a contract by certiorari, which is not a recognized remedy for that purpose.

In People ex rel. Ryan v. Aldridge (83 Hun, 279) it is stated: “No person can be compelled, by any process of law, to prosecute any enterprise undertaken for purposes of his own beyond the point at which he sees fit to discontinue the undertaking; and if he has contracted with another person to do the work for him and afterwards refuses to have it done, the contractee does not relieve himself from the obligation of the contract, but the remedy of the contractor is confined to his action of damages for its breach. The contract is not abrogated, but, in the nature of things, neither party can compel its specific performance by the other. The rule applies as well to bodies corporate and politic as to individuals, and even to the State,” etc.

The Commissioner is the sole representative of the State and the responsibility as to the State highways rests upon him. By section 132 of the Highway Law (as amd. by Laws of 19Í3, chap. 517) the performance of the contract is under his supervision and control. His authority in determining the plan and changing the plan of a State highway is practically unlimited. His determination that the public good requires that a road under contract shall not be built is conclusive upon the contractor, irrespective of section 132. The Commissioner cannot, however, destroy the effect of a valid contract and deprive a contractor not in default of the benefits he would derive from performance. If the Commissioner stops work upon a contract without cause, the State is responsible to the contractor for the loss of his contract. In my judgment section 132 of the Highway Law has no application to the question under consideration. That section contemplates a suspension of the contract, or a stopping of the work, growing out of the fact that the work is not being performed according to the contract or for the best interests of the State. It contemplates a default or a failure to properly perform by the contractor.

But if that section applied to the case it is not controlling here. The fact that the work has actually been stopped by the Commissioner must be recognized by the contractor. A determination by the Commissioner that work is stopped because of the default of the contractor does not establish the default or prejudice the contractor if he is not at fault. The section contemplates no notice to the contractor, or hearing on the merits. The determination, therefore, that the contractor is at fault is not binding upon him, and for that reason is not reviewahle by certiorari. (Matter of Keystone State Construction Co. v. Williams, 152 App. Div. 575.) But the Commissioner has not suggested that the contractor is at fault. The State has stopped the work solely because of defects in the plan of the work itself. The work is, therefore, at an end, and the contractor must pursue his remedies in the manner provided for that purpose. The order appealed from should be reversed and the proceeding dismissed, with costs to the relator.

All concurred; Lyon, J., in result; Smith, P. J., in memorandum.

Smith, P. J. (concurring):

It is by forced construction only that section 132 of the Highway Law (Consol. Laws, chap. 25 [Laws of 1909, chap. 30], as amd. by Laws of 1913, chap. 517) can be held applicable to this case. The plain intent of that section is to authorize an annulment of the contract through the fault of the contractor, in which case the contractor is made liable for any excess paid upon a reletting of the contract. Under section 15 of the Highway Law (as amd. by Laws of 1913, chap. 80) the Highway Commissioner is given authority to determine the method of construction of the highways. It would seem as a necessary incident to that power, in case it should be found that a method determined upon proved inadequate, that the Highway Commissioner should have authority to change the method of construction if necessary by the annulment of a contract made.. The contractor, however, under his contract has a vested right to the profits of his contract. Those cannot be taken away from bim without his fault. It cannot matter to him, however, whether the contract be annulled and his profits paid to him, or whether he be allowed to fulfill the contract and thus acquire the right to his profits. If the contract be annulled without his fault he has full remedy before the Board of Claims to recover the same if the State refuse to pay voluntarily. Under these circumstances he is not a party aggrieved by the determination under section 2127 of the Code of Civil Procedure.

Again, 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 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, not in any sense judicial; and even if the contractor were an aggrieved party it is difficult to see how he could obtain any remedy in the proceedings he has taken.

The order granting the writ should be reversed, with ten dollars costs and disbursements, and the motion for the writ denied and the writ quashed.

Order reversed, with ten dollars costs and disbursements, and motion for writ denied and the writ quashed. 
      
       Amends Highway Law (Consol. Laws, chap. 25; Laws of 1909, chap. 30). — [Rep.
     