Sutherland v. Skene

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 *166before 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.