
    William C. Sutherland, Appellant, v. Frederick Skene, as State Engineer and Surveyor, Respondent.
    Third Department,
    January 4, 1911.
    . Highways — improvement of highways — change of plan.
    Where a board of supervisors adopted the plans and specifications of the State Engineer locating a proposed highway in 1906 after section 6 of chapter 115 of the Laws of 1898 had been amended by chapter 468 of the Laws of 1906, which provided that improvements upon highways under the act shall be made as designated on a map filed by the State Engineer, save as the same may be altered by the State Engineer with the approval of the Legislature or by legislative enactment, after the map of the State Engineer showing the proposed highway was approved by chapter 715 of the Laws of 1907 the State Engineer cannot build the highway upon new plans and specifications on an entirely different route, although the plans were approved by the hoard of supervisors. The construction on the new route will he enjoined unless the board of supervisors and the Highway Commission change the plans pursuant to section 128 of the Highway Law, as amended by chapter 240 of the Laws of 1909, authorizing a modification of plans prior to the award of a contract therefor upon a resolution to that effect by the Highway Commission approved by the board of supervisors.
    Houshton and Cochrane, JJ., dissented, with opinion.
    
      Appeal by the plaintiff, William C. Sutherland, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of Albany county on the 13tli day of August, 1908, denying the plaintiff’s motion for an injunction during the pendency of the action.
    
      Bacon & Merritt [Henry Bacon of counsel], for the appellant.
    
      Edward R. O'Malley, Attorney-General [George A. Fisher of counsel], for the respondent.
   Kellogg, J. :

In 1903 the board of supervisors of Orange county adopted a plan under section 6 of chapter 115 of the Laws of 1898, known as the Good Roads Law, for a highway, known as Ho. -281, of the West Point-Central Valley road in the towns of Highland and Woodbury. May 22, 1906, the board of supervisors adopted .the plans and specifications of the • State Engineer and Surveyor, changing somewhat the location, grade and width of the proposed highway. But, six days prior to that date, section 6, under which the original plans, specifications and resolution were made, was amended by chapter 468 of the Laws of 1906 by adding thereto, among other things, the following provision; “When a board of supervisors has once adopted the resolution approving the plans and specifications of the State Engineer and directed how the county’s share of the expense shall be paid as provided in section eleven, no resolution thereafter adopted by such board shall have the effect of rescinding or annulling such prior resolution.”

Section 14 of the amending act also amended section 15 of the same statute, so as provide that prior to December 1, 1906, the board.of supervisors shall designate and certify to the State Engineer .and Surveyor the highways in each town which are deemed, of sufficient public importance to be. improved under the act, and which will in their opinion, when so improved, provide an appropriate system of improved main or market roads within the county; that if the supervisors have already designated highways to be improved under the statute thereby amended, or whenever a map showing such roads has theretofore been filed by the State Engineer and Surveyor, such designation shall be deemed a compliance with the section “unless different or other designations shall be made or another map filed by such board under this section prior to December first, nineteen hundred arid six.” It required the State Engineer and. Surveyor to indicate upon the map, to be filed on or before January 1, 1907, such highways within the State as lie deems' of sufficient public importance-to be improved under the act,vand to include it in his annual report to be submitted to the Legislature of 1907 for its- approval, amendment and modification, and “thereafter the improvement of such highways under this act shall be made in the respective counties upon the highways so designated upon said map ■except as the same may be thereafter altered and modified by the State Engineer and Surveyor with the approval of the Legislature or by legislative enactment.” By chapter 717 of the Laws of 1907, the foregoing provisions of sections 6 and 15 of-the Good Roads Law were re-enacted with slight changes of phraseology as sections 6 and 16.

Chapter 715 of the Laws of 1907 approved of the map of the State Engineer and Surveyor filed pursuant to the Good Roads Law and we may assume the 1906 plan of this proposed highway was upon the map so approved. Apparently these provisions made the designation of the 1906 highway valid and one which could only be changed' by legislative enactment. In 1907 the State Engineer and Surveyor prepared new plans and' specifications.for a highway between the same termini but upon an- entirely different route, which plans and specifications were approved by the board of supervisors, and this-action is brought-to restrain the defendant from constructing the highway on the plans and specifications of 1907, and' the plaintiff seeks an injunction during the pendency of the action.

Section 128 ■ of the Highway Law, in the Consolidated Laws, as amended by chapter -240 of the Laws of 1909, substantially re-enacted the provisions of section 6 of the former Good Roads. Law, adding to the declaration that the resolution adopting a plan for a-high way shall < not be rescinded or annulled by the board the following: “ except-' ing under the advice and with the consent of the Commission, notwithstanding the adoption of 'such a resolution, the Commission may modify such plans, specifications, and estimate, prior to the award of a contract therefor and, upon the approval thereof by the board of supervisors as above provided, such highway or section thereof shall be constructed or improved in accordance with such plans, specifications and estimate.”

Since the amendment of 1909 it is evident that the board of supervisors, with the consent of the Commission, may make alterations in a proposed highway at any time before the bids are accepted. The conclusion follows that the attempted change of plan in 1907 was not authorized and the plans and specifications of 1906 stand as the plans and specifications of the highway unless the board of supervisors and the Commission, pursuant to section 128 of the Highway Law, change them.

The order is, therefore, reversed, with costs and printing disbursements, and the motion for a temporary injunction is granted restraining the building upon the 1907 plan, with costs of motion.

All concurred, except Houghton, J., dissenting in opinion, in which Cochrane, J., concurred.

Houghton, J. (dissenting):

I think the Special Term properly refused to. grant an injunction in this matter and- that the order should be affirmed.

I do not think, the-change of route' between the two termini made by the supervisors in conjunction with the State Engineer was a “rescinding or annulling” of the former resolution in the sense in which those words are employed in the statute. The prohibition against any subsequent board rescinding or annulling a prior resolution adopting the plans and specifications of the State Engineer 'with respect to a State highway, and directing how the county’s share of the expense shall be paid relates, it seems to me, to the share apportioned upon the county rather than to the change in route. The object was to protect the State and to compel the county to bear the burden of expense imposed upon it by declaring that no subsequent board of supervisors should repudiate what a former board of supervisors had agreed to do. I think the subsequent amendments of the law indicate that the Legislature did not intend by the prior law to forbid a change of route. Such amendments rather show that the Legislature endeavored to make clear that so far as a change of route was concerned, in conjunction with the State authorities, the board of supervisors might make the change. The route of the proposed road might be established and an extraordinary flood might develop that the route was wholly impracticable, nevertheless, from the interpretation about to be given to the law before the amendments were enacted, the authorities would be powerless to change. At the time the original law was passed the State Engineer was the representative of the State, and to my mind it is altogether too strict a construction of. the law to say that the. State and the county authorities acting together were powerless' to make any change.' . .

If the change was not absolutely, illegal plaintiff’s complaint does not state a cause of action. The action is a taxpayer’s action, and if the change of route was legal, sufficient waste does not appear to .warrant relief.

The Highway Commission and the board of supervisors under the law as it now exists could ratify the route, and it seems to me it is idle to grant the injunction.

I, therefor vote for an affirmance of the order.

Cochrane, J., concurred.

Order reversed, with ten dollars costs and disbursements, and the motion for temporary injunction restraining building upon the 1907 plan granted, with ten dollars.costs.  