36 N.Y.S. 991 | N.Y. Sup. Ct. | 1895
The Depew & Southwestern Railroad Company was duly incorporated, and the termini of its proposed line of railroad were Depew and Blasdell, in the county of Erie. The Terminal Railway of Buffalo was also duly incorporated, and the proposed termini were the same. Each company made application to-
The convenience and necessity of a railroad from Depew to Blasdell are not questioned, and, for the purpose of facilitating transportation of freight both east and west between New York and Chicago, its importance is apparent. It will shorten the distance about six miles, and the time about that number of hours, and will obviate the necessity and inconvenience of taking freight cars through the city of Buffalo to interchange with connecting roads. There are five railroads passing through Blasdell, to be brought into more immediate or direct connection with four at Depew by the proposed line between those two places. Both companies, in their organization, complied in all respects with the statute, and did all that was essential preliminarily to the applications to the board, proceeded in good faith, and had the purpose and ability to construct the road proposed by their articles of association. But the public convenience and necessity required the construction of only one line of railroad having those termini. The question, as treated by the board, was one of preference between them. In this it is insisted on the part of the Depew & Southwestern Railroad Company that the board misapprehended its powers given by the statute, and, in violation of it, issued the certificate in behalf of the Terminal Company; that it was within the province of the board to determine whether or not the public convenience and necessity required a railroad having the proposed termini; and that when that was determined in the affirmative the Depew & Southwestern Company was, by reason of the priority of its corporate creation, entitled to the benefit of the certificate, which the board was thereupon required to issue. The directors of both companies proceeded concurrently in process of organization. While the articles of associa
Without the aid of some statute to that effect, the priority in such case of corporate existence does not necessarily furnish priority of legal right, as against a competing application to the board. There is no statute in support of such a proposition applicable to that stage of the corporate action of a railroad company. While the creation of a railroad corporation is a right to be exercised in the manner provided by the statute, the right to exercise the power of proceeding to the construction of its proposed railroad is subject to and dependent upon the supervisory consideration of the board, and its certificate, preliminarily made, that “public convenience and necessity require the construction of said railroad as proposed in said articles of association.” This has reference to the articles of association of some particular company to be mentioned in the certificate. It would not answer the purpose of the statute for the board to certify merely that public convenience and necessity required the construction of a railroad having the termini mentioned. It is to certify that such convenience and necessity require the construction of the road as proposed in said articles, and the certificate is apparently available only to the company having the articles thus mentioned in the certificate. And, although the termini described in the articles of both companies were the same, it may be assumed that, as represented by the maps and profiles, there were some distinguishing features in the route or line of the road as proposed by the companies. In reaching the conclusion essential to the issuing of a certificate, the board act judicially, and when, after refusal to grant it, the matter is brought to the general term, the action of the court is in the nature of a review of the determination of the board; and the burden is with the moving company to make it affirmatively appear that the board erred in its conclusion and in its refusal of the certificate, upon the facts as presented to it. The reasons given for the action of the board do not necessarily control the disposition to be made of the case on the review, unless the facts required a different conclusion on the hear
The suggestion that in this matter the court may reverse the action of the board in granting the certificate, and direct it to issue one to the Depew & Southwestern Company, or require the board to issue a certificate to the latter company, and place the other company in a subordinate relation to it in respect to the right to proceed in the construction of the proposed railroad, is not tenable. No such power is within the contemplation of that given by the statute from which the court derives all its power in a proceeding of this character. The issuing of the certificate in behalf of the one company was not the refusal of a certificate in behalf of the other, although it furnished to the board a reason for the denial of one to the latter company. The relative merits of the two companies, on whatever grounds or for whatever reasons they may be claimed to exist, in favor of one and against the other company, as respects their applications to the board, are not here for consideration. It was in the power of the board to issue a certificate, and, having granted the certificate in behalf of the Terminal Company, it refused a like certificate to the other company. With the certificate issued we have nothing to do, except so far as it bears upon the question whether public convenience and necessity require the construction of more than one railroad hating the termini before mentioned. It cannot well be urged that such necessity exists, or that the board was required to issue more than one certificate for that purpose. And, since this was done, the refusal to grant another certificate to the Depew & Southwestern Railroad Company requires no further consideration.
The application for direction to the board of railroad commissioners should therefore be denied. All concur.