The single question is presented by this appeal whether the members of the town board and the highway commissioners of the town of Hyde Park, in the county of Dutchess, had jurisdiction to alter the route of the New York and Albany post road in that town.
The post road was created by chapter 131, Colonial Laws, 1703, and has remained a public highway ever since, a period of two hundred years.
The County Law (§ 77) contained in article 4, defining the duties of boards of supervisors relating to highways and bridges, which is a revision, without material change, of the Laws of 1882 (Chap. 317), provides that "The board of supervisors of any county may authorize and empower the highway commissioners of any town to alter, discontinue, widen, or narrow any road or public highway which shall have been laid out by the state within its boundaries, under the same conditions as would govern their action in relation to public highways that have been laid out by local authorities." (Birdseye's R.S., Vol. 1 [3d ed.], p. 839.)
It is conceded that in the case before us no power was conferred upon the town board and commissioners of highways by the board of supervisors of Dutchess county, but it is argued that the section quoted does not include the post road, for the reason that it was not laid out by the state as now existing.
The act of 1703, laying out the post road and other public highways, starts out with the declaration, "That there be laid out and kept forever," etc. We thus have the post road, a public highway, in the colony of New York, and when the latter achieved its independence the former continued a state public highway under the jurisdiction of the state of New York, and is clearly within the provisions of section 77 of the County Law as properly construed.
It is doubtless true that since the existence of public state *Page 511 roads in the early days, the colonial assembly did, from time to time, confer the power upon the local authorities of towns to alter, repair and keep in proper condition that portion of a state road lying within the boundaries of a town.
In 1817 (Chap. 83) the policy was changed and the local authorities could only alter a state public highway in a particular town with the consent of the commissioners of highways of the adjoining towns through which it passed.
It is manifest that the legislation of 1882 (Chap. 317), perpetuated in section 77 of the County Law, was a clear expression of the legislative intention to change still further its policy and to delegate to a certain extent its powers in relation to state roads to the board of supervisors in each county, thus placing under the control of the latter all alterations thereof.
It follows that the town board and highway commissioners of the town of Hyde Park were without jurisdiction in the premises until authorized to act by the board of supervisors of Dutchess county.
An evidence of the supervising care of the legislature over state public highways is found in chapter 423, Laws of 1896. entitled "An act to preserve forever the New York and Albany post road as a state public highway." The material portions of this act read as follows:
"SECTION 1. The old established road along the valley of the Hudson river from the city of New York to the city of Albany, known as the Albany post road, shall be a public highway for the use of the traveling public forever.
"§ 2. The said highway shall be kept open and free to all travelers, and shall not be obstructed in any way by any obstacle to free travel.
"§ 3. No trustees of any village or corporation of any city upon its route, or board of commissioners of highways of towns, or any other person or board whatever, shall have any power or authority to authorize or license the laying of any railroad track upon said highway, except to cross the same, and any such action shall be void and of no effect. * * *" *Page 512
It is argued that sections one and two are but a repetition of the law as it exists, and that the sole object of this act was to prevent the laying of any railroad track upon the post road.
In my opinion the act is very unfortunately worded, including the title, if its sole object was as suggested. The title should have been, "An act to prevent the laying of any railroad track upon the New York and Albany post road," and section three would have sufficed in carrying out this alleged sole object of the act. The fact is that the title of the act is used with entire accuracy — "An act to preserve forever the New York and Albany post road as a state public highway."
Section one makes the post road a state public highway if in law it had not theretofore existed as such.
This act clearly brings the post road within section 77 of the County Law, and renders the authorization of the board of supervisors necessary before the local authorities can alter the route of the same.
I have already stated the reason why the post road has always been a state public highway since the Revolutionary war, but if any legal doubt existed it is set at rest by the act of 1896.
Sections two and three of this act disclose the legislative intention to prevent all interference with the post road as a state public highway, except as the board of supervisors may act under the powers delegated to them under section 77 of the County Law.
I vote for the affirmance of the order of the Appellate Division annulling the action of the town board and highway commissioners of the town of Hyde Park.
PARKER, Ch. J., O'BRIEN, VANN, CULLEN and WERNER, JJ., concur with HAIGHT, J.; BARTLETT, J., reads dissenting opinion.
Order reversed, etc. *Page 513