
    In the Matter of the Application of Stephen Sherman for a Writ of Certiorari to Review the Determination of the State Commission of Highways.
    (Supreme Court, Niagara Special Term,
    March, 1912.)
    State commission of highways — establishment of highway by statutory proceedings — power to establish highway — highways.
    The state commission .of .highways, in locating a route for a state road pursuant to section 120 of tile Highway 'Law, acts simply in an administrative capacity and may reach its ' deter.-' mination without giving a taxpayer notice of hearing or an opportunity to be heard.
    That the duties of the commission in locating the route call for the exercise of judgment and discretion does not make its action judicial in character, and certiorari does not lie to review it.
    
      Application for writ of certiorari to review the determination of the state commission of highways, in locating “ Route thirty ” through ¡Niagara county, pursuant to section 120 of the Highway Law.
    George F. Thompson, for motion.
    Franklin Kennedy, deputy attorney-general, opposed. .
   Pound, J.

It is claimed that the state commission of highways has located route thirty, west from Medina, on a line that runs north and then westerly when the act says: “ thence westerly ” and that it has no power to do so.

This is an application for a writ of certiorari to review the legality of such action.- The question is whether such determination can be reviewed by certiorari,

The state- commission of highways is an administrative board. In locating “ route thirty ” it acted, not in a judicial nor quasi judicial capacity, but simply in an administrative capacity. It acted as a public agent in the exercise of delegated governmental powers such as the legislature itself might have exercised had it seen fit and such as it has exercised in many instances in locating the state highways. See Highway Law, § 120. It had power to reach its determination without giving the moving party herein notice of hearing or an opportunity to be heard. The fact that it exercised judgment and discretion in the performance of its duties does not make its action judicial in its character. A judicial proceeding implies a hearing as a matter of right by the person affected thereby.

The writ may issue only in cases where express provision is made therefor by statute or where the right to the writ existe at common law. Code Civ. Pro., § 2120.

¡No statutory provision exists authorizing the review of the determination of the commission herein questioned by writ • of certiorari. A common law writ is available only to review an act judicial in its character. It lies only to inferior tribunals or officers exercising judicial powers to correct. errors of law materially affecting the rights of parties. People ex rel. Republican & Journal Co. v. Wiggins, 199 N. Y. 382. Thus it has been held that the determination of a board of health as to the existence of a nuisance is not reviewable by certiorari. People ex rel. Copcutt v. Board of Health, 140 N. Y. 1. Also that the determination of a civil service commission in classifying positions in the public service, although involving .the exercise of judgment and discretion, is not reviewable by certiorari. People ex rel. Schau v. McWilliams, 185 N. Y. 92. Also that the revocation of a permit to sell milk by the board of health of. the city of Hew York, although alleged to be arbitrary and unreasonable, is not reviewable by certiorari. People ex rel. Lodes v. Department of Health, 116 App. Div. 856; People ex rel. Lodes v. Department of Health, 189 N. Y. 187.

By the' overwhelming weight of authority, certiorari is not the proper remedy to review the action of the state commission of highways in locating route thirty. It therefore is unnecessary to decide whether a taxpayer, as such, is entitled to. apply for a writ as a “ person aggrieved by the determination to be reviewed.” Code Civ. Pro., § 2127.

The objection that this motion should have been made in Albany county, under- Code Civil Procedure, section 769, was waived by the attorney-general on the hearing.

The only question before me is whether the writ shall issue in order to bring the main question as to the power of the commission before the Appellate Division of the Supreme Court for the third department at Albany for its decision. To so hold would be to open the doors of our courts to a mass of litigation to review administrative acts which are, in their nature, necessarily final.

My conclusion is that the writ cannot so issue.

Motion denied.  