with that view of the province of this court in these proceedings. Unless the court can see that the decision of the Board of Railroad Commissioners was founded upon erroneous legal principles, or that it proceeded contrary to the clear weight of evidence in arriving at its conclusion upon any question of fact, or that it has abused the discretion vested in it, and has arbitrarily refused to issue the necessary certificate, I do not think that the court should reverse its determination and compel it to issue a certificate." The same rule was announced in Matter of Depew & Southwestern R. R. Co. (92 Hun 406), in the fifth department of the General Term, in an opinion delivered by BRADLEY, J., and was reiterated by the Appellate Division in the Fourth Department in Matter of Auburn & Western R. Co. (37 App. Div. 162), and by the Appellate Division in the second department in Matter of Kings, Queens & Suffolk R. R. Co. (supra). Applying this rule to the evidence as it was developed in this case we think that the conclusion reached by the majority of the commissioners finds abundant justification. If we were examining this case as an original question upon the merits we should reach the conclusion that the application was properly denied. The policy of the Legislature with respect to authorizing the construction of a new railroad in territory where a railroad already exists and is being operated has been steadily progressive. In the beginning consent to the construction was only required from owners of property through which the proposed road was to run, and from local authorities granting the right. In practical operation many franchises were obtained for the construction of railroads which the promoters and persons obtaining the grant never intended to construct, but to acquire and hold the same for purposes of speculation. The abuses in this regard prompted the Legislature from time to time to pass laws regulating and controlling the subject, and the granting of a franchise to construct a road under the present law is made subject, not alone to the consent of property owners and local authorities, but the Board of Railroad Commissioners are vested with control, subject to review by the courts as to whether the public convenience and a necessity require the construction of the line. Such authority is now found expressed in section 59 of the Railroad Law and also in section 59a of said statute (added by Laws of 1898, chap. 643, and amd. by Laws of 1902, chap. 226). In practical administration of this power the Railroad Commissioners are called upon to consider and protect vested interests against reckless or unfair competition, produced by the construction of new lines, the paralleling of existing lines and to protect vested interests in railroad property against the attacks of promoters, who, in the main, are largely actuated in forcing existing railroads to pay tribute in order to protect their property. No railroad should now be permitted to be constructed in a territory where one already exists which is reasonably supplying existing needs, or which by extensions may meet the demands of the general public. When such a condition exists, public convenience and a necessity do not require added lines of road. Such are the principles which have been acted upon by the Railroad Commissioners, and which have been expressed by the courts whenever the question has arisen. (Matter of Empire City Traction Co., 4 App. Div. 103; People ex rel. Steward v. Railroad Commissioners, 160 N. Y. 202; Matter of Amsterdam, J. & G. R. R. Co., supra; Matter of Auburn & Western R. Co., supra.) There may be added to these general considerations a further suggestion that it is also the policy of the law with respect to street surface railroads that so far as possible in large cities and towns the railroads existing therein shall by a system of transfers transport passengers between all points over the lines operated by a single company for a single fare, and to make that fare as low as is permissible and make fair return upon the money invested in the enterprise. Competing lines of railroad under different corporations and antagonistic administrations, instead of promoting, operate to defeat this policy of the law. Nor do separate corporations so operating produce what has been termed a "healthy competition." Public utilities of this character rarely do when so utilized. The uniform history has been that where one line of railroad already in existence is permitted to be paralleled by another line of railroad under antagonistic management the effect is first to produce a ruinous competition, then to force consolidation of conflicting interests, or one, not being able to survive, is driven into bankruptcy and absorbed by the other unless restrained by law. Healthy competition "becomes represented in the survivor and it proceeds to force out of the public the greatest possible revenue. The result is to compel the public to pay interest upon capital invested in the unnecessary line and thereby a burden becomes fastened upon it, which, if the construction had never been authorized, would have ultimately promoted a reduction in the price of carriage. It is evident, therefore, that where it appears that the line of railroad already existing does, or may by proper extensions, fairly serve the public need a new line is not justified upon any theory. The argument that has been addressed to us, that it does not lie in the mouth of the remonstrants to object to such construction when the applicants are willing to take the chances of a fair return upon their investment, is utterly unsound and should not prevail. It ignores vested rights and what is of more importance, it ignores the rights of the public that are interested in obtaining not only the most convenient but the cheapest transportation possible. These applicants are not engaged in a philanthropic enterprise and ultimately except that from some source there will be an abundant return from their investment. This return can only come from one of two sources; either by forcing the existing railroad to some terms, which always operates as a surrender of a part of its rights, or the burden becomes imposed upon the public and they make the payment. In either case the public is always the one that ultimately finds itself between the upper and nether millstone of the two enterprises. The railroad already constructed is subject in its charater rights to legislative control and it has become after much trial and tribulation the policy of the law to compel existing corporations to supply the reasonable needs of the traveling public by operation and extension of its own lines rather than to permit the building of competitive railroads, which only operate in the end as a burden upon the public without making adequate return, either in convenience or in cheapness of transportation. In view of these considerations which have been sanctioned by the courts and by experience, it appears from the undisputed

ROUTE.

testimony in this case that the construction of this railroad is not justified by public convenience or a necessity. The routes which it proposes to construct approximately aggregate thirty-six miles of double track, eight in number. The granting of the certificate for the construction was opposed by the Union Railway Company of New York, operating surface lines of electric railways in the borough of The Bronx, and by the People's Traction Company, which already holds a franchise for construction in this territory, but whose lines have not yet been constructed. The Union Railway Company owns or controls or operates practically all the existing surface railway lines in the borough of The Bronx and also controls operating corporations of practically all the surface lines in the adjoining portion of Westchester county as far as Tarrytown, White Plains and New Rochelle. It is also allied with the lessee of the Metropolitan Street Railway system, which operates all of the surface lines upon Manhattan island. The lines of railway which the Union Company operate aggregate seventy-eight and forty-eight one-hundredths miles, nearly all of which are double-track lines, and eighty-eight and eighteen one-hundredths miles in Westchester county. In the borough of The Bronx they are all operated under one system by means of transfers and nearly all of them areu nder the same transfer system in Westchester county. The same territory is also intersected by various branches of railroad under the control of and operated by the New York Central and Hudson River Railroad Company. The Third Avenue Elevated railroad also runs into a part of this section and the People's Traction Company, also affiliated with the Union Railway Company, has franchises for the construction of many additional miles of street railways. The maps introduced in evidence, conceded to be correct, show that the applicant railroad purposes for a large proportion of its construction to parallel already existing lines of the Union Railway Company and so close thereto that its patronage would be practically drawn from the same territory. The mort striking illustration of parallelism is in route designated upon the map as No. 8m, where the applicant road is to be laid along Railroad avenue, and for over four miles it runs within 900 feet of lines operated by the Union Railway Company. Route No. 5 is almost the same. It commences at the Willis avenue bridge, runs thence in a northerly direction for nearly four miles within 900 feet of the Union line and for quite a considerable distance within 400 feet. Its route on Aqueduct avenue, which is next to the longest of the proposed construction, parallels the whole of the Union line located on Sedgwick and Jerome avenues and the greater portion of the way is within 400 feet. The following table is most instructive upon this subject, as it shows in detail the extent of the paralleling:

33.04 miles. 10.6 miles. 22.44 miles. 13.47 miles. 19.57 miles.

Totals of sections W. of Bronx river.... 28.36 miles. 7.32 miles. 21.04 miles. 9.54 miles. 18.82 miles.

118,496

71,158

103,307

or

or

or

In addition to this, it appears that the Union railroad has never paid any dividends upon its stock and that the business which it has been able to do has only been sufficient to pay interest upon its outstanding obligations, meet running expenses and fixed charges. The surplus amounted for the fiscal year ending June 30, 1903, to only $24,308. Its capital is $2,000,000; five per cent. first mortgage bonds, $2,000,000, and the floating debt, $5,390,867.04; aggregating $9,390,867.04. It is evident, therefore, that to authorize the paralleling of its lines of road would so seriously impair its earning power as in all human probability to cause it to default upon the payment of its fixed charges and obligations. In any view, therefore, of the case as thus made it is evident that the views of a majority of the Board of Railroad Commission

ers were correct and that public convenience and a necessity did not exist in the allowance of this application, and that to have granted it would seriously affect, if it did not produce the bankruptcy of the Union Railway Company.

It follows, therefore, that the determination of the Board of Railroad Commissioners should be sustained and the application be denied, with costs.

LAUGHLIN, J., concurred

Application granted to the extent stated in opinion.

This case has been appealed to the Court of Appeals and at the time of writing this report has been argued. (See page 294, first volume, Railroad Commission Report 1903.)

VIII.

COURT OF APPEALS.

IN THE MATTER OF THE APPLICATION OF ROBERT C. WOOD ET AL., AS DIRECTORS OF THE NEW YORK CITY INTERBOROUGH RAILWAY COMPANY, FOR AN ORDER REQUIRING THE BOARD OF RAILROAD COMMISSIONERS TO ISSUE A CERTIFICATE UNDER SECTION 59 OF THE RAILROAD LAW.

(Decided March 7, 1905. 99 App. Div., 335, affirmed.)

APPEAL, by permission, from an order of the Appellate Division, First Department, requiring the board of railroad commissioners to issue to the New York City Interborough Railway Company a certificate of public convenience and necessity for the construction of certain lines of street railways proposed by that company.

HAIGHT, J. The Appellate Division in allowing the appeal herein has certined two questions to be answered: 1st, "Was there evidence to support the finding of the railroad commissioners of the State of New York, that the New York City Interborough Railway Company was incorporated and had a franchise from the local authorities for the construction of its line?" 2nd, "Did the Appellate Division of the Supreme Court in the First Department have the power in its discretion to order said board of railroad commissioners, in this proceeding and upon the record herein, for the reasons stated, to issue a certificate of public convenience and a necessity for routes 1, 2, 3, 4, 6 and 7, applied for?"

It appears from the record in the case that the New York City Interborough Railway Company, which will be hereinafter designated as the Interborough Company, after filing its certificate of incorporation, applied to the local authorities of the city for their consent to the construction and operation of a surface street railroad in certain streets specified, and that the municipal authorities granted the application in the form of an ordinance passed by the board of aldermen and approved by the mayor. Thereupon that company applied to the State board of railroad commissioners, under section 59 of the Railroad Law, for a certificate of public convenience and necessity, and upon that application the certificate was refused. After such refusal an application was made to the Appellate Division, upon the evidence, papers and maps which were before the railroad commissioners, for an order requiring the commissioners to give such certificate, and that court granted the order prayed for as to certain of the lines embraced in the franchise granted by the local authorities. It is from that order that this appeal is taken.

As to the first question certified, the only criticism made to the validity of the incorporation of the Interborough Company was as to whether the ten per cent. vi capital stock subscribed for had been paid in in good faith as required by the statute. The question presented is purely one of fact and under the provisions of the Constitution our jurisdiction is confined to the review of questions of law; therefore, our examination of the evidence is limited to the determination as to whether there is any evidence that supports the finding. For that purpose we have examined the testimony that was given before the railroad commissioners, and have reached the conclusion that there was evidence tending to show that the ten per cent. had been paid in in cash and in good faith.

As to the second question the statute expressly provides that the General Term (now the Appellate Division) of the Supreme Court has the power, in its discretion, to order the railroad commissioners to grant a certificate of public convenience and necessity. This question being substantially in the form of the statute, we should have no difficulty in answering it in the affirmative, were it not for the clause " the record herein." That clause calls for the determination as to the correctness of the practice adepted in bringing up the proceeding for review in the Appellate Division.

*

upon

that

Section 59 of the Railroad Law, so far as it is material, provides as follows: "No railroad corporation hereafter formed under the laws of this State shall exercise the powers conferred by law upon such corporations or begin the construction of its road until the board of railroad commissioners shall certify public convenience and a necessity require the construction of said railroad as proposed in said articles of association. After a refusal to grant such certificate the board shall certify a copy of all maps and papers on file in its office and of the findings of the board when so requested by the directors aforesaid. Such directors may thereupon present the same to a general term of the supreme court of the department within which said road is proposed in whole or part to be constructed, and said general term shall have power, in its discretion, to order said board, for reasons stated, to issue said certificate, and it shall be issued accordingly."

It must be conceded that the statute is exceedingly meagre in its provisions as to the practice to be followed, and doubtless for that reason most of the proceedings for the review of the actions of the board of railroad commissioners have been by certiorari. But we think the legislative intent is sufficiently apparent from the provisions to which we have referred. It was intended to vest in the General Term (now Appellate Division) power to review the determination of the railroad commissioners in case they should refuse the certificate of public convenience and necessity. (Matter of New Hamburgh & P. C. R. R. Co., 76 Hun, 76.) For this purpose the railroad commissioners were required, on the request of the directors of a railroad company to certify a copy of all maps and papers on file" in their office and of the findings of the board. It is true that the statute does not in express terms state that the commissioners shall certify a copy of the testimony taken before them, but we think that the certification of the testimony was implied and intended. The testimony, with the maps and papers on file, together with the findings of the board, furnish a complete record of all the proceedings before the commissioners and enable the Appellate Division to review the determination made thereon. It is also true that the statute has not pointed out the precise practice that should be adopted in bringing the case to a hearing before the Appellate Division, but that court may by rule or otherwise specify the time and notice that shall be given to the parties interested upon which it will entertain the application. In this case the evidence was certified by the railroad commissioners, together with all of the maps and papers before them and a copy of the findings. The record was, therefore, complete, and one upon which the Appellate Division had the jurisdiction to make the order in question.

A motion for the dismissal of the appeal herein was submitted. We have only to say that the order herein was a final order in a special proceeding, and that in the absence of any provisions in the Railroad Law giving a right to appeal to this court, it was reviewable as a matter of right, under section 190 of the Code of Civil Procedure, so far as the questions of law were concerned.

The motion to dismiss the appeal should be denied and the other appealed from affirmed, with costs.

CULLEN, Ch. J., GRAY, O'BRIEN, BARTLETT, VANN and WERNER, JJ., concur.
Order aflirmed.

Abandonment of Part of Route

I.

IN THE MATTER OF THE APPLICATION OF THE BENNINGTON AND HOOSICK VALLEY RAILWAY COMPANY, UNDER SECTION 103 OF THE RAILROAD LAW, FOR AP

PROVAL OF A DECLARATION OF ABANDONMENT OF A PORTION OF ITS ROUTE.

March 9, 1904.

This application was filed with this Board on October 29, 1903. The applicant asked approval of a declaration of abandonment of the portion of its railway in the village of Hoosick Falls from the junction of Church and Main streets to the end of the line at the tracks of the Boston and Maine Railroad, a distance of about 4,500 feet, on Church, Diver, Third and Elm streets. Public hearings were given before this Board in Albany on December 21, 1903, and March 9, 1904. Considerable opposition developed at the hearings. At the close of the evidence on March 9 the application was denied, without opinion. (Case No. 3026.)

II.

IN THE MATTER OF THE APPLICATION OF THE CROSSTOWN STREET RAILWAY COMPANY OF BUFFALO, UNDER SECTION 103 OF THE RAILROAD LAW, FOR AP

PROVAL OF A DECLARATION OF ABANDONMENT OF A PORTION OF ITS ROUTE.

December 9, 1903.

This application was filed with this Board on June 22, 1903. The applicant asked approval of a declaration of abandonment of that portion of the route of the applicant's railway in the city of Buffalo in Elk street between Abbott road and Seneca street. A public hearing was given before this Board in the city of Buffalo on November 23, 1903. Considerable opposition developed at the hearing. On December 9, 1903, the application was withdrawn. (Case No. 2948.)

III.

IN THE MATTER OF THE REMOVAL OF TRACK OF THE PLATTSBURGH TRACTION COMPANY FROM COURT STREET, PLATTSBurgh.

July 8, 1904.

It was reported to this Board that the Plyattsburgh Traction Company had removed its track from Court street, Plattsburgh. An inspector of the Board made a report in the matter as follows:

The single track of the Plattsburgh Traction Company which was removed from Court street, Plattsburgh, was a spur track about 500 feet long, used for the storage of cars; the track formerly made connection with one of the company's regular lines at the intersection of Court and Margaret streets. The track had a dead end at a theatre and it was probably originally put in in order to store care sufficient to accommodate the theatre business.

The case was closed. (Case No. 3164.)