Matter of Niland v. . Bowron , 193 N.Y. 180 ( 1908 )

Our examination of the statutes which bear upon this controversy convinces us that the highway commissioner acted without authority in letting the contract to the relator for the construction of the road. The procedure provided by the statute for the determination of the necessity for a highway, which need not be set forth at length, does not confer authority upon a highway commissioner to pledge the town credit for the actual opening and construction of the road. The provisions of the statute covering the subject will be found in the Highway Law (L. 1890, ch. 568, §§ 83, 84-98), in force when these proceedings were taken. The sections cited relate to the laying out, altering or discontinuance of highways. Nothing contained therein has reference to the actual physical opening of roads.

The relator contends that the last of these sections (98) invests highway commissioners with power to enter into contracts for the physical construction of roads. That section provides: "The final determination of commissioners appointed by any court, relating to the laying out, altering or discontinuing a highway, * * * shall be forthwith filed and recorded in the town clerk's office of the town where the highway is located; and every such decision shall be carried out by the commissioners of highways of the town, the same as if they had made an order to that effect." The language of that section in connection with the preceding sections, as applied to a proceeding like this, simply directs a highway commissioner to take the necessary steps for the laying out of the highway. He is given no power to expend town money, except such as may be in his hands within the statutory limit of five hundred dollars, and he cannot create an indebtedness against his town for the actual opening of a road. Any attempt to exercise such power under that section is directly contrary to the explicit statutory limitations by which the duties of highway commissioners are hedged about. The functions of these officers as to the expenditure of town moneys and the pledging of town credit are very narrowly circumscribed. "They have no general power or authority to bind the town by their contracts or undertakings, and are individually responsible alone to those with whom they contract, if any responsibility is thereby created." (People ex rel.Everett v. Bd. of Supervisors, Ulster Co., 93 N.Y. 397;People ex rel. Van Keuren v. Board of Town Auditors, 74 id. 310.) They can only impose liability upon towns for the construction of roads when they have direct statutory authority therefor, and this has been the settled policy of this state for many years. (People ex rel. Morey v. Town Board of OysterBay, 175 N.Y. 394; Acme Road Machinery Co. v. Town ofBridgewater, 185 id. 1.)

Sections 10 and 53 of the Highway Law, which were in force when the highway commissioner of New Castle entered into the contract with the relator, authorized highway commissioners to incur liability and expend moneys in limited amounts for the repair and improvement of highways. The first of those sections relates to repairs in cases of emergency, and the expenditure in such cases is expressly made subject to the approval of the town board. The other section (53) prescribes the method of raising moneys by taxation for the repair and improvement of highways and the manner of their disbursement. The relator concedes that nothing contained in these two sections authorized the contract in question and, as we have observed, section 98, upon which the relator relies, did not confer the requisite authority. Thus the contract sought to be enforced in this proceeding was void. It is indisputable that a person who deals with the agent of a municipal corporation is chargeable with notice of the limitations upon the agent's authority, and it is, therefore, clear that the town in the case at bar cannot be held liable, for the acts of the highway commissioner were manifestly in excess of his powers.

The relator contends, however, that even if the action of the commissioner was illegal it was subsequently ratified by the resolution of the town board to liquidate the relator's claim by the payment of $6,000. The answer to this suggestion is that the town board was as powerless in the premises as the commissioner. The statute limits and defines the powers and duties of town boards quite as strictly as those of highway commissioners, and the acts of either in excess of statutory authority are equally void. Prior to the enactment of chapter 396, Laws 1902, which has no application here, a town board had no power to let or approve contracts in relation to highways which called for the expenditure of more money than was raised by taxation under section 53, except in the case of emergencies under section 10, or except as provided by section 69 of the County Law (L. 1892, ch. 686). That section of the County Law, so far as material, provides that upon the application of a majority of the electors of a town, or the highway commissioner and town board, the board of supervisors may authorize the construction of a road and the borrowing of money to pay therefor. This section was not complied with. The town board, therefore, had in the first instance no power to enter into this contract, and it could not by its subsequent action ratify a contract which neither it nor the highway commissioner had the power to make. "When the act done is ultra vires it is void, and there can be no ratification; and when the mode of contracting is limited and provided for by statute, an implied contract cannot be raised." (Kramrath v. City of Albany, 127 N.Y. 575, 581.)

The order appealed from should be affirmed, with costs.

CULLEN, Ch. J., EDWARD T. BARTLETT, HAIGHT, VANN, HISCOCK and CHASE, JJ., concur.

Order affirmed.