(dissenting). It is my opinion that the Commission of Correction, in carrying out the provisions of subdivision 8 of section 46 of the Correction Law, was acting in an administrative capacity. By section 5 of article XVII of the New York State Constitution, the Legislature is charged with the maintenance and support of institutions for the detention of persons charged with or convicted of crimes. A county jail is such an institution and the Legislature has provided that each county shall maintain one. (County Law, § 217.) A county is merely a subdivision of the State itself. It can exercise no powers except those conferred upon it by the Legislature. “ A county is a municipal corporation comprising the inhabitants within its boundaries and formed for the purpose of exercising such powers and discharging such duties of local government and administration of public affairs as may be imposed or conferred upon it by law.” (County Law, § 3.) The only right of a county to maintain a county jail for the detention of its prisoners derives from the Legislature. I think no one would question the -authority of the Legislature to abolish county jails and require the several counties to maintain and support their prisoners in some other institution fixed by law. No consent or approval of a county would be required. What the Legislature, in this relation, has authorized, the Legislature may revoke.
In carrying out the constitutional mandate to maintain and support penal institutions, the Legislature has set up the Department of Correction as a part of the State Government. It thereby delegated to an administrative body the duties laid upon it by the Constitution. It gave the commission the power and placed upon it the duty to close a county jail “ which is unsafe, unsanitary or inadequate to provide for the separation and classification of prisoners required by law.” (Correction Law, § 46, subd. 8.) Again, it can hardily be questioned that the Legislature could have provided for such closing without any notice whatever to a county, had it so desired. As a subdivision of the State, possessed of no powers except those given by the Legislature, the county could not complain. In deference, however, to the local authorities, the Legislature saw fit to provide a procedure by which the commission’s power to close should be exercised (§ 46, subd. 8). The record in this case shows that the procedure so provided was meticulously followed by the commission. A citation was duly served directing the county officials to appear before the commission at a designated time and place to show cause why the jail should not be closed. The county officials duly appeared as directed and were *306afforded a hearing. They filed a brief and made such statements to the commission as they desired. The statute was fully complied with. There is no requirement that any charges, specifications or reports be served upon the county officials. There is nothing in the statute to the effect that there is any burden upon the commission to sustain charges against the county. It is within the discretion of the commission to close the jail, as an administrative act, upon compliance with the procedure laid down. The purpose of serving notice by way of citation to show cause is to give an opportunity to the officials to be heard so that they may bring forward for the consideration of the commission such explanations, recommendations and future plans as they see fit. The £ £ hearing ’ ’, however, is not of a quasi-judicial nature. To close or not to close is purely an administrative matter delegated to the commission by the Legislature pursuant to the constitutional mandate. Provided the statute (§ 46, subd. 8) is complied with and provided the commission did not act unreasonably, arbitrarily or capriciously, the court may not interfere with the determination. Due process or the substantial evidence rule are not in this case. There are no personal or property rights involved and cases relating to revocation of licenses and the like are inapposite. Here the State, through its commission, is simply taking back control of a county jail as it has the right to do. (Gardner v. Ginther, 232 App. Div. 296, affd. 257 N. Y. 578; Matter of McAneny v. Board of Estimate, 232 N. Y. 377; People ex rel. Simon v. Bradley, 207 N. Y. 592; Matter of New York State Employees’ Retirement System v. Board of Supervisors, 157 Misc. 87, affd. 251 App. Div. 198, affd. 278 N. Y. 496.) In the McAneny case (supra) the court in citing People ex rel. Simon v. Bradley (supra, p. 390) said: ££ The decision was placed upon the ground that the state, in its sovereign capacity, might, subject to constitutional limitations, resume powers delegated to localities and either by itself or through an agent, directly control matters of local government.”
The determination of the Commission of Correction should be confirmed and the order affirmed.
All concur, except Kimball, J., who dissents and votes to confirm the determination in a separate opinion. Present — McCubn, P. J., Vaughan, Kimball, Williams and Bastow, JJ.
Determination annulled, without costs, and matter remitted to the State Commission of Correction for further proceedings in accordance with the opinion.