52 N.Y.S. 908 | N.Y. App. Div. | 1898
The relator is a street surface railroad company, incorporated by special act (Chap. 517, Laws of 1871) to construct, maintain and operate a railroad through the streets of the village of Babylon
Section 100 of the Railroad Law (Chap. 565, Laws of 1890) pro-. vides that “ any street surface railroad may operate any portion of its road by animal or horse power or by cable, electricity or any power other than locomotive steam power, which may be approved by the State Board of Railroad Commissioners and consented to by the owners of one-half of the property bounded on that portion of the railroad with respect to which a change of motive power is proposed.” ‘
Section 90 of the act subjects every existing street surface railroad to the above provision, and hence the charter of the relator allowing it to use dummy engines is modified accordingly, certainly so far as substituting such power after the Railroad Law took effect for the horse power in use when said law took effect. In view of the power which the. Constitution reserves to the Legislature to alter or repeal statutes creating corporations (Art'. 8, §'l), the suggestion-that the special act creating this corporation and', its acceptance of the conditions created a contract is not well founded. Whether, if the dummy engine had been in use when the Railroad Law took, effect, it would have been necessary to procure the approval of the board to the continuance of its use, we need not inquire. We think, however, that the kinetic. motor of the relator is not the “locomotive steam power” contemplated by the statute. Tlie statute evidently contemplátes the locomotive steam engine commonly employed upon other than street surface railroads^ an engine obvi
"We think when the Board of Railroad Commissioners decided that the statute forbade them to givé their approval they misconceived the law. The relator had the right to have its application considered free from such misconception, and hence the determination should be reversed. We do not think that the statute requires the board to withhold its approval because the motor is still in its experimental stages, or because the relator is controlled by persons interested in this motor system. Unless the rights or safety of the' public, or of its members, are exposed to danger, it is not unreasonable to tolerate experiments having for their object private gain-through a new means of public benefit. These, however, are matters which the statute leaves to the discretion of the Board of Railroad Commissioners, and the court will not revise or review its exercise of discretion in these respects so long as no statutory rule I or legal principle affecting the rights of the relator is violated.
The objection is taken in the return and was pressed upon the argument that the action of the board was not in its nature judicial, but was either legislative or administrative, and, therefore, not reviewable by the court.. It was not legislative, since it was not law making in its nature. -It was not executive. or ministerial, because the statute does not prescribe that the board shall approve the application or disapprove it, according as certain consents shall be given or withheld, or certain formal proofs made or left unmade (People ex rel. Stapleton v. Bell, 119 N. Y. 175); but it was judicial because the' statute makes the board a tribunal to hear and determine the
It is a part of our State system to commit many governmental, powers, involving judicial,' executive and ministerial functions, to a single officer, or a board or commission, the exercise of the executive or ministerial duty being in some cases dependent upon the exercise of the judicial function. Our Constitution, unlike that of the United States, does not commit the whole judicial power to the courts in the first instance, hence our system of review by certiorari of “ the determination of a body or officer.” (Code Civ. Proc. § 2120, et seq.) If such a body* in the exercise of its functions, renders its determination in pursuance of a misapprehension of the law, such error should be corrected. (Id. § 2140, subd. 3.)
• The determination . of the Railroad Commissioners should be reversed, with fifty dollars costs and disbursements.
All concurred.
Determination of Railroad Commissioners reversed, with fifty dollars costs.