In re More

Hasbrouck, J.: In the town of Andes in Delaware county stretching from the corporation line of the village of Andes towards Shavertown, there lies the Tremper’s Kill road. In pursuance of the Highway Law two taxpayers of the town in 1922 petitioned the superintendent of highways to alter the road in order to obviate certain grades and to build a new road running closer to the kill and to abandon such existing road. The town superintendent has failed and neglected to lay out and alter said highway and has refused to secure a dedication or lease of the lands necessary for such alteration. The respondents showing these and other necessary facts petitioned the County Court for the appointment of commissioners to condemn the lands necessary for such alteration and such proceedings were had that the County Court made an order appointing commissioners in condemnation and a report has been made by them declaring, among other things, the necessity of the alteration of such highway and the discontinuance of the old road and awarding damages for the lands taken. An order was made confirming such report, from which order the town superintendent of highways and supervisor of the town of Andes have appealed to this court. Section 320-a of the Highway Law (added by Laws of 1914, chap. 61, as amd. by Laws of 1920, chap. 871), in force during 1921, among other things contained this provision: “ The board of supervisors of a county may aid a town or towns in the construction or improvement of a highway or highways therein, and shall designate the highway or highways which the town or towns are to construct or improve by the aid of the county. Such county may prepare a map of the system of highways thus to be improved in that county.” Under such authority and section 320-b of the Highway Law (as added by Laws of 1920, chap. 840), in force during the year 1921, the board of supervisors passed a resolution to improve with county aid to the town, and State aid to the county, the existing Tremper’s Kill highway. The súbstantial question raised by the appeal herein is whether the County Court was warranted in appointing commissioners to determine inter alia the public necessity of abandoning the old road. There are several classes of highways and roads described in the statute (Highway Law, § 3, as amd. by Laws of 1910, chap. 567; Laws of 1912, chap. 83, and Laws of 1916, chap. 578), and over [81] them all the State has regulatory power by legislation. It is part of its sovereignty to control these agencies of commerce and communication. To supply the public necessity for highways the State has delegated to municipalities the power of eminent domain that private property may be subordinated to the public use. The road in question prior to the passage of the resolution for its improvement by the board of supervisors was a town highway. The effect of the resolution was not to change the character of the road but to take the manner of its improvement out of the town and to cast the cost upon the county and State. The respondents argue that in the improvement of the Tremper’s Kill road “ the town board and the town superintendent shall constitute a board for the purpose of determining the places where and the manner in which such moneys shall be expended.” (Highway Law, § 105, as amd. by Laws of 1915, chap. 322.) The moneys referred to are those arising from State aid under section 101 (as amd. by Laws of 1913, chap. 375). The moneys described in section 320-b are never to be received by the town. They are to be received and disbursed by the county. Concerning such money section 320-b provides that the board of supervisors of the county “ shall determine the place where and the manner in which such money shall be expended ” for the construction and improvement of highways. It is apparent that if the moneys described in sections 101 and 320-b of the Highway Law had the same character the provisions of the law would stand in violent contradiction. Our effort should be if such were the case to seek a construction which would result in harmonizing discordant parts. This we think has already been done by this court in approving what was written by the trial court in Pilbeam v. Sisson (204 App. Div. 764). The facts of that case brought up for review here the precise question which this appeal presents and the court held that when the board of supervisors had undertaken to establish a system of highways within the county and had mapped them and determined their improvement by county and State aid or improvement under the provisions of sections 320-a and 320-b, thereafter the towns in which such highways were located were without jurisdiction to determine the manner of their improvement. The argument against the interpretation placed upon the statute in the Pilbeam case that roads so designated for improvement by county and State aid are under the control of the county in every "respect and that they may remain unfit for public use pending improvement by the county is not regarded as sound for the statutes do not provide for any such thing. The towns are not relieved [82] meantime from the obligation of making ordinary repairs. Upon the county there is only conferred the power to name the place and determine the manner of the improvement. The improvement determined upon but not made has no effect upon the highway except to save its location until the improvement is actually undertaken and made. The road in other respects is in control of the town. When the improvement by the county has been completed the road again becomes, under the existing law, a town road. (Pilbeam v. Sisson, supra) The amendment of section 320-a in 1923 empowers the board of supervisors to place the maintenance of roads maintained under the provisions of that section under the supervision and direction of the county superintendent of highways. (See Laws of 1923, chaps. 426, 430, amdg. said § 320-a.) Such amendment, of course, has not as yet been availed of to change the character of the highway in question. We conclude that when the board of supervisors passed the resolution for the improvement of the Tremper’s Kill road it fixed that road as part of the highway system of Delaware county, and that until such improvement was made and the highway ceased to be controlled by the board of supervisors the court was without power to determine its abandonment to be a public necessity. We think the order confirming the report of the commissioners should be reversed and the proceedings vacated, with costs and disbursements. Cochrane, P. J., H. T. Kellogg and McCann, JJ., concur; Van Kirk, J., dissents with an opinion.