195 N.Y. 157 | NY | 1909
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The appellant insists that the relator did not sue out the writ of certiorari within the time prescribed by law. Section 2125 of the Code of Civil Procedure provides that the writ "must be granted and served, within four calendar months after the determination to be reviewed becomes final and binding, upon the relator." The certificate of the board was announced and was dated as of July 15th, 1901; but it was *163
not delivered to the appellant until August 14th, 1905. The argument is that, within the meaning of the statute, a determination was made when the board decided that public convenience and a necessity required the construction of the road and that the time, within which the writ might be granted, commenced to run then. Included with the return is an extract from the minutes of a meeting of the railroad commissioners on August 14th, 1905, in which it is stated that the certificate, which was granted "but which was not issued owing to the company having failed to pay the organization tax, was to-day issued and delivered * * * there having been filed with the Board a receipt from the State Comptroller and State Treasurer showing that the organization tax of the company had been paid." Section 180 of the General Tax Law (L. 1896, ch. 908, as amended) provides for the payment of an organization tax by every stock corporation and forbids the filing by the secretary of state, or county clerk, of any certificate of incorporation, until he has been furnished with a receipt for the tax from the state treasurer; except in the case of a railroad corporation. A railroad corporation need not pay such a tax at the time of filing its certificate of incorporation; but, (the section provides), that the certificate required by the Railroad Law, authorizing the construction of the road, "shall not be granted by the Board of Railroad Commissioners until it is furnished with a receipt for such tax from the State Treasurer." In refusing, therefore, to grant, that is to deliver, the certificate, under section
As to the merits of the case, it is argued for the appellant that the board of railroad commissioners had no power to determine whether the corporation had complied with the provisions of the second section of the Railroad Law. The basis of the argument need not be considered; for the statute and the authorities do not support any such contention. The section provides that the filing of every certificate of incorporation, where the amount of stock required by this section has not been in good faith subscribed and paid in cash, shall be void. The fact of this preliminary payment is made an essential one and it affects the lawfulness of any corporate undertaking. The board, in acting under section 59, proceeds judicially and is required to determine, at the outset, whether the corporation is one dejure, by reason of a compliance with what the statute commands as essential to due incorporation. If the ten per cent. of the minimum amount of capital stock has not been subscribed, nor paid in good faith and in cash, there has been no legal incorporation and that question the board must determine. Being a judicial one, the right to review it by a writ of certiorari is accorded by law. (See People ex rel. Steward v. R.R. Comrs.,
In the second place, the appellant argues that the Appellate Division had no power to review the determination of the *165
board, upon the question of the payment of the ten per cent. required by the statute, as it was not one of fact. That it is, generally, a question of fact is evident, (Matter of Wood,
Nor was the court precluded from looking into the evidence by the statement in the return to the writ, with respect to the payment of the ten per cent. having been made as required by the statute. If the return had not included, as a part thereof, all of the proceedings and testimony, had and taken before the railroad commissioners, the argument *166 might have some force, that the statements of the return must be taken as conclusive. With all the evidence incorporated, as a part of it, the Appellate Division was not confined in its review to the mere allegations in the return. That court could examine the evidence and finding, as it did, that it failed to support the determination of the board, could annul it. There being a question of fact upon the evidence, it is beyond the jurisdiction of this court to review that decision.
It is also insisted by the appellant that the relator was not a party aggrieved by the action of the board of railroad commissioners. That was a question for the board and the Appellate Division to consider. It turned upon the facts relating to the relator's situation, as affected by the proposed railroad construction. The relator showed that it would be affected, inasmuch as it owned other roads more or less paralleling the proposed road and serving the same territory. It appeared at the hearings and was allowed to take part in the proceedings by the tribunal, as having an interest in the controversy. The certificate of public convenience and necessity is to be granted upon considerations, not alone, bearing upon the convenience of the public, but affecting the other transportation companies, which are already serving the territory. They have the right to be considered and to be protected, where there is no necessity for a wider public service, against the designs of persons more interested in forcing terms from them, than in subserving the public convenience. Certainly the rights of shareholders in the existing roads demand fair consideration.
No other question presented by the appellant requires discussion by us and I advise the affirmance of the order appealed from.
CULLEN, Ch. J., EDWARD T. BARTLETT, HAIGHT, VANN, WERNER and HISCOCK, JJ., concur.
Order affirmed, with costs. *167