DECISIONS OF COURTS AS TO QUESTIONS ARISING UNDER SECTION 59 OF

THE RAILROAD LAW.

I.

COURT OF APPEALS.

THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant, v. THE AUBURN INTERURBAN ELECTRIC RAILROAD COMPANY, Respondent.

(178 N. Y. 75.)

APPEAL from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 30, 1903, affirming a judgment in favor of defendant entered upon a decision of the court on trial at Special Term.

The nature of the action and the facts, so far as material, are stated in the opinion. WERNER, J. This action was brought to restrain the defendant from constructing and operating an alleged proposed extension of its street surface railroad between the village of Skaneateles and the city of Syracuse, in the county of Onondaga. The complaint was framed upon the theories: (1) That the alleged extension was invalid because the defendant had failed to obtain from the board of railroad commissioners a certificate that public convenience and necessity required it, and (2) that the socalled extension was such only in name and was in reality a new road, the construction and operation of which was illegal without such certificate. These allegations of the complaint were met by the denials of the answer, and upon the issue thus joined and the proofs made, the defendant was given a judgment, which has been affirmed by the Appellate Division.

The appellant now contends that the findings of fact and conclusions of law of the learned trial court do not support the judgment, because the allegations of the complaint and the evidence given in support thereof tend to prove the construction and operation of a proposed extension between Skaneateles and Syracuse, while the only findings and conclusions upon the subject are to the effect that a bona fide extension was projected and made between Skaneateles and Marcellus. Of this contention it is enough to say that there is evidence to support the findings and conclusions made, and these are sufficient to sustain the judgment rendered, unless the main contention of the plaintiff as to the construction of sections 59 and 90 of the Railroad Law is upheld, in which event the judgment must, of course, be reversed without regard to the evidence or the findings of fact based upon it.

The failure of the trial court to find certain facts which the appellant claims to have established by evidence is not, in the present state of this record, an error of law reviewable by this court (National Harrow Co. v. Bement & Sons, 163 N. Y. 505); and if there is any evidence to support the findings of fact actually made, the result in that regard is binding upon this court, even though a different conclusion should or might have been reached in the courts below. (Ostrom v. Greene, 161 N. Y. 363.) In the last analysis, therefore, the only question that we can review is whether the extension of defendant's road, projected and constructed as found by the trial court, was valid under the statute, without the certificate of the board of railroad commissioners as to the public convenience and necessity thereof.

The defendant was organized in 1895 for the purpose of constructing an electric street surface railroad over certain routes described in its charter. One of these routes extended from a given point in the city of Auburn in the county of Cayuga, over and along stated courses to the intersection of Genesee street with the easterly boundary of the village of Skaneateles in the county of Onondaga. The defendant had complied with the then existing requirements of section 59 of the Railroad Law which, among other things, provided that "no railroad corporation hereafter formed shall exercise the powers conferred by law upon such corporation or begin the construction of its road until the Board of Railroad Commissioners shall certify that public convenience and a necessity require the construction of said railroad as proposed in said articles of association." The route above referred to was one of the routes specified in the defendant's articles of association. At the time of the commencement of this action the defendant had constructed and was operating about six and one-half miles of its road over that route, from the point of its beginning in the city of Auburn to a point in Genesee street at or near its intersection with Jordan street in the village of Skaneateles, and was about to begin the construction of the remainder of its road along Genesee street from its intersection with Jordan street to the easterly boundary of the village of Skaneateles. After the completion of its road along this route and on the 2d day of October, 1901, the defendant made and filed a statement and certificate of a proposed extension of its road from its easterly terminus in the village of Skaneateles, easterly along specified courses for a distance of about six miles to the village of Marcellus in the county of Onondaga. This statement and certificate complied in all essential particulars with section 90 of the Railroad Law which provides that "Any street surface railroad corporation, at any time proposing to extend its road or to construct branches thereof,

may, from time to time, make and file in each of the offices in which its certificate of incorporation is filed, a statement of the names and description of the streets, roads, avenues, highways, and private property in or upon which it is proposed to construct, maintain or operate such extensions or branches. Upon filing any such statement and upon complying with the conditions set forth in section 91 of the Railroad Law, (which relates to the consents of the local authorities and adjoining property owners in cities and villages), every such corporation shall have the power and privilege to construct, extend, operate and maintain such road, extensions or branches, upon and along the streets, avenues, roads, highways and private property named and described in its certificate of incorporation or in such statement."

The

The courts below have held that section 59 of the Railroad Law as it stood in 1901 had no application to proposed extensions of then existing street surface railroads, and that it was not necessary for the defendant to apply to the board of railroad commissioners for a certificate of public convenience and necessity for the extension of its road above referred to. We concur in that construction of the statute. history and the language of section 59 very clearly indicate the legislative purpose behind its enactment. When it first became a part of the Railroad Law in 1892 street surface railroads were expressly exempted from its provisions. Thus it stood until 1895, when that exemption was removed. In plain and unequivocal language it referred only to new railroads to be constructed by railroad corporations thereafter to be formed. In 1902 it was amended (Sec. 59a) by providing that "any street surface railroad company which proposes to extend its road beyond the limits of any city or incorporated village by a route which will be practically parallel with a street surface railroad already constructed and in operation shall first obtain the certificate of the Board of Railroad Commissioners that public convenience and a necessity require the construction of such extension as provided in the case of a railroad corporation newly formed."

During the whole of the period from 1890, when the present Railroad Law was originally enacted, down to 1902, when section 59 was so amended as to bring proposed extensions of street surface railroads within the rule requiring the certificate of the board of railroad commissioners as to public convenience and necessity, section 90 has also been a part of the same law, and, although amended in 1893 and again in 1895, its substance has remained unchanged and it has always dealt exclusively with extensions and branches of street surface railroads. Thus we see that in 1890, when newly projected street surface railroads were concededly exempted from the changed policy of the state towards its steam railroads, as manifested in section 59 of the Railroad Law, the statutory provision (Sec. 90) for extensions of street surface railroads was in effect the same as in 1895 when new street surface railroads were placed upon the same footing as new steam railroads, and this was the condition of the statute down to 1902 when section 59 was amended as above stated.

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The reason of this difference in the earlier legislative treatment of the two kinds of railroads are obvious. Under the law as it stood prior to 1890 the requisite_number of persons with sufficient capital could organize a railroad corporation and construct a railroad at any time and over any route, they might choose. In the formative period of our state this was doubtless a most beneficent policy and contributed very materially to the development of our commerce and resources. Experience, however, demonstrated that railroad enterprises are not exceptions to the ordinary trade laws of supply and demand. Ill-advised and speculative railroad enterprises soon phasized the necessity of protecting, not only existing railroad corporations against destructive competition, but the investing public against the disastrous consequences of indiscriminate and unrestricted railroad schemes backed by alluring but impracticable promise of gain. These were the conditions which brought about the enactment of section 59 as part of the Railroad Law. The reasons for then exempting street surface railroads from its operations are equally apparent. At that time street surface railroads were operated by horse power, chiefly in the larger cities, and they were comparatively few in number. With the advent of electricity as a motive power new conditions were created. Not only was urban traffic greatly augmented, but interurban street surface railroads were projected on every hand, until the history of steam railroads found its counterpart in this new outlet for corporate enterprise and capital. In 1895 the legislature again interposed, this time in favor of existing street surface railroads and the investing public, by striking out of section 59 the exemption in favor of street surface railroads, thus placing all railroads of every kind thereafter to be projected upon precisely the same footing. That this amendment of section 59 was not quite far reaching enough has been made evident by later developments and legislation. After the legislation of 1895, section 90 of the Railroad Law still gave practically unlimited power to extend existing street surface railroads. Under this power long interurban lines could be constructed by means of successive existence, and existing lines could be paralleled by the same methods. To remedy this new phase of an old evil, section 59a was enacted in 1902 and, as the law now stands, no street surface railroad corporation can extend its road beyond the limits of any incorporated city or village, if the effect of such extension will be to practically parallel any existing street surface railroad, without first cbtaining from the board of railroad commissioners a certificate that public convenience and a necessity require such extension.

The construction of section 59 and 90 of the Railroad Law, supported by their language and history, is reinforced by several incidental considerations. While it is true that these sections must be read together, it is equally true that such a reading is useful only so far as the two sections relate to precisely the same subject. Originally section 59 had reference only to steam railroads, and section 90 has always dealt exclusively with street surface railroads. The Railroad Law has never permitted the extensions of steam railroads, while it has always provided for extensions of street surface railroads. The same legislative policy which in 1890 applied the provisions of original section 59 to steam railroads, excluded street surface railroads from its operation and, as that section related only to newly projected railroads, it is clear that the mere excision in 1895 of the exemption in favor of street surface

railroads had no other effect than to place the latter upon exactly the same footing with the former. Sections 59 and 90 were, therefore, entirely independent of each other until 1902, when the legislature again announced a change of policy, not as to railroads generally, but only as to extensions of street surface railroads as expressed in section 59a, which for the first time brought sections 59 and 90 into relations with each other. All this is supplemented by the practical construction that has been given to these sections by the board of railroad commissioners and by the legislature. The former, in its annual reports of 1897, 1898 and 1899, very pointedly called attention to the need of amendatory legislation in respect of street surface railroad extensions; and the latter, in 1902, adopted the recommendations therein made by the enactment of section 59a. Much might be said as to the farreaching effect of this practical construction and the legal weight which should be given to it, but since it is in perfect accord with our own view of the statute we deem it unnecessary to further extend the discussion.

The judgment should be affirmed, with costs.

PARKER, Ch. J., O'BRIEN, MARTIN and VANN, JJ., concur; GRAY, J., not sitting; BARTLETT, J., taking no part. Judgment affirmed.

II.

APPELLATE DIVISION, SUPREME COURT, THIRD DEPARTMENT.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY agt. THE BOARD OF RAILROAD COMMISSIONERS OF THE STATE OF NEW YORK and ASHLEY W. COLE et al., being the members thereof, and MONROE COUNTY ELECTRIC BELT LINE COMPANY.

(96 Appellate Division, 616.)

Determination uninimously confirmed, with $50 costs and disbursements.

opinion.

No

This case was not appealed to the Court of Appeals. For determination of this Board in this matter see 1st vol. report of this Board for 1901, p. 201.

III.

APPELLATE DIVISION, SUPREME COURT, THIRD DEPARTMENT.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Relator, v. THE BOARD OF RAILROAD COMMISSIONERS OF THE STATE OF NEW YORK and Others, the Members Thereof, and ROCHESTER, SYRACUSE AND EASTERN RAILROAD COMPANY, Respondents.

(92 App. Div., 126.)

CERTIORARI issued out of the Supreme Court and allowed on the 19th day of November, 1902, directed to The Board of Railroad Commissioners of the State of New York and others, the members thereof, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proccedings had in granting to the Rochester, Syracuse and Eastern Railroad Company a certificate of public necessity to construct a railroad to be operated by electricity between the cities of Rochester and Syracuse.

The route of the Rochester, Syracuse and Eastern Railroad Company is from Rochester to Syracuse, paralleling to an extent the road of the relator. It runs through the various villages along the route, in some cases running a considerable distance from the relator's road. The certificate given recites that "the Board of Railroad Commissioners hereby certifies that public convenience and a necessity require the construction of the railroad of the Rochester, Syracuse and Eastern Railroad Company as proposed in the articles of association of said company, provided that said railroad shall be built upon private right of way and not in the highway, except through cities, villages and hamlets on its route." The validity and propriety of this certificate is sought to be here raised by this writ of certiorari. SMITH, J.:

By section 2 of the Railroad Law (Laws of 1890, chap. 565, as amd. by Laws of 1892, chap. 676) the certificate of incorporation of the applicant road was required to state "the names and description of the streets, avenues and highways in which the road is to be constructed." By section 59 of that law (added by Laws of 1892, chap. 676, and amd. by Laws of 1895, chap. 545) it is provided that no railroad corporation shall exercise the powers conferred by law upon such corporations or begin the construction of its road "until the directors shall cause a copy of the articles of association to be published in one or more newspapers in each county in which the road is proposed to be located, at least once a week for three successive weeks, and shall file satisfactory proof thereof with the Board of Railroad Commissioners, nor until the Board of Railroad Commissioners shall certify that the foregoing conditions have been complied with, and also that public convenience and a necessity require the construction of said railroad as proposed in said articles of

association. The foregoing certificate shall be applied for within six months after the completion of the three weeks' publication herein before provided for."

By section 59a (added by Laws of 1898, chap. 643, and amd. by Laws of 1902, chap. 226) it is provided that upon such an application, where "it shall appear to the Board of Railroad Commissioners, after examination of the proposed route of the applicant company, that public convenience and a necessity do not require the construction of said railroad as proposed in its articles of association, but do require the construction of a part of the said railroad, the Board of Railroad Commissioners may issue its certificate for the construction of such part of the said railroad as seems to it to be required by public convenience and a necessity."

In People ex rel. Steward v. Railroad Commissioners (160 N. Y. 202) it is held: "A determination by the railroad commissioners that a certificate of public convenience and necessity shall issue is a final determination of the rights of the owners of land through which the railroad will pass if constructed as to the question of public convenience and necessity." At page 211, PARKER, Ch. J., in writing for the court, says: "The machinery provided by the statute requires the publication of the articles of association in each county through which the proposed railroad is to pass, so that every owner of lands to be affected, as well as the public generally, may have notice of the fact that a tribunal created by the State for that purpose, among others, is about to determine as against them whether public convenience and a necessity require the construction of the proposed railroad."

The commissioners have not changed the proposed route, locating the same definitely in some other place, but have in effect said to the corporation that it might locate its route wheresoever it would, so long only as it is kept without the highway and conformed to the route proposed within the cities, villages and hamlets.

If this certificate be within the power of the commissioners to grant, it is difficult to see why they might not authorize the construction of the road between Rochester and Syracuse, leaving to the corporation itself the right to select its route between those cities. The difference is in degree and not in principle. To the commissioners is left by the law the determination of the public necessity and convenience of the route proposed in the articles of association. Under the certificate as given the route which they shall select between the hamlets, villages and cities has not been approved by the Board of Railroad Commissioners. The corporation is left free to choose that part of its route without their approval. This, we think, is opposed both to the spirit and the letter of the law. The necessity or convenience of these interurban roads depends largely upon the route taken between the villages, hamlets and cities. In the case at bar the necessitics of travel from village to village, or village to city or city to city, are fairly well met by the roads already in existence. It is important then that the Board of Railroad Commissioners shall have before them the specific route proposed by the applicant company and shall approve or disapprove of that route.

In People ex rel. Depew R. Co. v. Commissioners (4 App. Div. 259) Justice HERRICK, in writing for this court in reference to the act, said (at p. 263): "Under that the railroad commissioners have to pass upon the specific application of each company; they are to determine whether 'public convenience and necessity require the construction of said railroad, as proposed in said articles of association' of the petitioning company; that is something more than determining whether public necessity and convenience require the construction of a railroad between the points mentioned in the articles of association as the proposed termini of their road. It means something more than merely determining whether public convenience and necessity require the building of any road between the proposed termini; they must determine whether public convenience and necessity require the construction of the specific road proposed in the articles of association of the petitioning corporation."

In examining this question it is important to consider the effect of the holding in the case of People ex rel. Steward v. Railroad Commissioners (supra). The determination of the Board of Railroad Commissioners is a determination once and for all of the necessity of the proposed road. Landowners whose land the company would appropriate for the purposes of the road can no longer resist that appropriation on the ground that the location of the road upon their premises is unnecessary. In view of this holding it would seem to be of the utmost importance that by this publication each landowner should have notice that his land is sought to be taken to the end that he may contest before the Board of Railroad Commissioners the necessity of the road.

Also, in examining this question, the provisions of section 59a of the Railroad Law (as amd. supra) have, I think, some significance. It is therein provided that the Board of Railroad Commissioners may grant a modified certificate approving of a part only of the proposed road. If the maxim expressio unius est exclusio alterius be applied there would seem to be fairly indicated an intention to limit the right of the commissioners in the granting of their certificate to a variation from the route proposed in the articles of association only to the extent of authorizing the granting of the certificate as to a part of the route. Against such a variation the reasons suggested against the granting of the certificate in the case at bar would be without force.

There are cases, in which the Board of Railroad Commissioners have conditioned their certificates, where the certificates have been upheld by the court, but in no case has a condition attached compelled a change of route originally proposed.

The reading of the statute seems to require the granting of the certificate only as to the route proposed in the articles of association except in the single instance specified in section 59a. It is for the Legislature and not the court to grant to the commissioners more extended powers, and there is apparently substantial reason for denying to them the power which they have assumed here to exercise.

We are of the opinion, therefore, that the determination of the Board of Railroad Commissioners, as expressed in their certificate, should be reversed.

All concurred, except CHESTER, J., dissenting in memorandum in which HOUGHTON, J., concurred.

CHESTER, J. (dissenting):

I cannot agree that the determination of the Board of Railroad Commissioners in granting the certificate that public convenience and necessity require the construction of the railroad in question as proposed in its articles of association should be reversed because of the provision contained in the certificate that such railroad "shall be built upon private right of way and not in the highway, except through cities, villages and hamlets on its route." That I think is a condition to be commended.

While it is true that compliance with the provision will not result in building a road upon the exact route proposed in the articles of association, yet it will be upon substantially the same route. The line as proposed passes through certain hamlets, villages and cities, and it is required to be constructed on the route stated in the articles of association. It is only with respect to the country highways connecting the several villages and hamlets where any change in the route of the road is required. Notwithstanding such change the road must proceed from place to place in the exact order named in the articles of association and pass through the respective places upon the route there indicated.

Under section 13 of the Railroad Law (Laws of 1890, chap. 565, as amd. by Laws of 1897, chap. 235), after the certificate of public necessity has been granted, the company may change its route within the county named in its certificate of incorporation for the purpose of improving the line, and this may be done without the consent of the Board of Railroad Commissioners. With that power existing in the law the change from the route proposed in the articles of association in the present case is unsubstantial and could be effected by the respondent without application to the Board of Railroad Commissioners if that board had issued the certificate applied for without the provision or condition which it contained.

The relator had a right to insist that no certificate should issue for the proposed road, but I do not think it is aggrieved because of the slight change in the route between the villages and hamlets, required by the condition upon which the certificate was issued.

I think the determination should be confirmed.

HOUGHTON, J., concurred.

Determination annulled, with fifty dollars cost and disbursements against the re spondent Rochester, Syracuse and Eastern Railroad Company.

This case was not appealed to the Court of Appeals. See 1st vol. report of this Board for 1902, p. 254. See also determination of this Board, on a new application by this company, published in this volume under the title "Applications for a Certificate Under Section 59 of the Railroad Law."

IV.

APPELLATE DIVISION, SUPREME COURT, FOURTH DEPARTMENT.

THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant, v. THE BUFFALO AND WILLIAMSVILLE ELECTRIC RAILWAY COMPANY, Respondent.

(96, Appellate Division, 471).

APPEAL by the plaintiff, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 10th day of July, 1903, upon the decision of the court rendered after a trial at the Erie Special Term dismissing the plaintiff's complaint upon the merits.

The defendant, a street surface railroad company, was incorporated pursuant to the Railroad Law (Laws of 1890, chap. 565) in August, 1891. In its certificate of incorporation its projected road was set out as extending from the northerly boundary of the city of Buffalo at its intersection with the Buffalo and Williamsville road, and running northerly and easterly along said road to the easterly boundary of the village of Williamsville, a distance of five miles. Its termini were declared to be the northerly boundary of the city of Buffalo and the easterly boundary of the village of Williamsville. The road was completed in 1893 along the course outlined in its certificate, and has since been in operation.

In March, 1902, the defendant filed its certificate of intention to extend its railroad from the easterly line of the village of Williamsville to the westerly boundary of the city of Rochester. It has made maps of its projected route, procured rights of way and expended money preliminary to the construction and in the actual building thereof, and intends to continue the same, making a continuous road from its present Williamsville terminus to the city of Rochester.

The said company has not obtained or applied to the Board of Railroad Commissioners for its certificate "that public convenience and a necessity require the construction of said railroad as proposed in said articles of association." (Railroad Law, § 59, added by Laws of 1892, chap. 676, and amd. by Laws of 1895, chap. 545.) Said company intends to construct and operate its contemplated road without obtaining said certificate, claiming that the same is unnecessary, as it intends merely to extend its existing road. (Railroad Law, § 90, as amd. by Laws of 1895, chap. 933.)

The plaintiff has been operating a railroad between Buffalo and Rochester for many years, and now has five distinct lines connecting the two cities, the facilities to some one of which are readily accessible to every part of the territory to be traversed by the road of the defendant, and to each line of which it would be a competitor. This action is commenced to restrain the defendant from constructing its said road unless and until the Board of Railroad Commissioners has certified to the convenience and necessity thereof.