160 N.Y. 202 | NY | 1899
Lead Opinion
The Goshen Railroad Company, having performed the preliminary requirements of the statute, applied to the railroad commissioners for the certificate authorized by section fifty-nine of the Railroad Law; the railroad commissioners inspected the location of the proposed new road, and in pursuance of notice duly given a public hearing was granted *206
to enable those of the public who were opposed to the granting of the certificate to appear and present their reasons for their opposition; upon said hearing the relators appeared in person and by counsel and produced witnesses who were duly sworn by the railroad commissioners, and thereupon gave testimony in opposition to the claim of the railroad company that the building of the railroad was a work of public convenience and a necessity; later on the railroad commissioners issued the certificate prayed for, whereupon the relators applied for a writ of certiorari to review such determination on the part of the railroad commissioners, and the same having been allowed by the Special Term, and the Goshen Railroad Company brought in as a party, a hearing was had in due course in the Appellate Division, which resulted in a decision by that court reversing and annulling the determination of the railroad commissioners. The Goshen Railroad Company on this appeal taken from the order, urges that this court should hold that the Appellate Division was without authority to review such determination; that the statute confers upon the railroad commissioners an important duty which it prefers to call administrative rather than judicial, and which it insists is subject to no review by the courts. The issuing of a common-law writ of certiorari to review the judicial determinations of inferior judicial tribunals and officers acting judicially under authority of statute, to correct errors of law affecting property rights of the parties, has for a long time formed a part of our judicial procedure. (Starr v. Trustees ofRochester, 6 Wend. 564; People ex rel. Loughran v. RailroadCommissioners,
Now, the section before us prohibits a railroad corporation from exercising any of the powers conferred by law upon such a corporation until the board of railroad commissioners shall certify that certain specific conditions have been complied with, and also that "public convenience and a necessity" require the construction of such railroad as proposed in said articles of association. The granting of such a certificate cannot be treated as an idle ceremony, required by the legislature as a mere matter of form, for the board of railroad commissioners, in order to certify, must first determine what the fact is, and it must decide that the public convenience and a necessity require the construction of the proposed railroad before it can certify that such is the fact. To enable it to pass upon that question of fact it must be in possession of the necessary evidence upon which to base a decision, and in order that the people may have an opportunity to be heard and be permitted *208
to produce evidence in opposition to the railroad's claim of a necessity, the statute requires the publication of the articles of association for three weeks in each county in which the road is proposed to be located, and further requires that the certificate shall be applied for within six months after the completion of such publication. Upon such hearing the commissioners have the right to administer oaths to witnesses, to authorize their examination and cross-examination by counsel, and while not bound by the technical rules governing the admission of evidence in actions and proceedings pending before the courts, the commissioners are authorized to, and do receive oral testimony, written and printed documents, and affidavits which in their opinion tend to throw light upon the question which in the end they are to pass upon, namely, whether "public convenience and a necessity" require the construction of the proposed railroad. This determination is one of great importance from a public point of view, and so the statute requires that it shall be passed upon at the very threshold of the corporation's existence, for thus is prevented, if the railroad ought not to be built, a waste of the money contributed by the stockholders in proceedings which may come to naught should some owner of land through which the railroad is intended to pass, succeed in establishing, in condemnation proceedings, that there is no necessity for the building of the railroad, as in Matter ofNiagara Falls Whirlpool Railway Company (
It is not my purpose to attempt to present all of the arguments that can readily be marshalled to establish that the determination made by the railroad commissioners that a certificate shall issue as called for by section fifty-nine, constitutes a judicial determination of great importance, for, as I view it, that question was settled in this court in People exrel. Loughran v. Railroad Commissioners (supra). It is true that in that case another section of the Railroad Law was involved, but every argument presented by the opinion to prove that the power under consideration in that case was a judicial power is alike applicable to the power conferred upon *209 the commissioners by section fifty-nine. In that case the statute provided that no railroad station "shall be discontinued without the consent of the Board of Railroad Commissioners first had and obtained." In this case it provides that no railroad corporation shall exercise the powers conferred by law "until the Board of Railroad Commissioners shall certify * * * that public convenience and a necessity require the construction of said railroad as proposed in the said articles of association." The reasoning which we deemed conclusive in that case is equally applicable to this one, and need not be repeated here. The attempt that has been made to distinguish the two cases is not rested upon the claim that there is any difference in the character of the power exercised by the railroad commissioners, nor that in the one case, any more than in the other, the determination is not the final determination in that proceeding; but it is urged that in the Loughran case the relator residents had no other remedy than a review by certiorari, while in this case the relator residents will have a further remedy when proceedings shall have been instituted to acquire their lands by condemnation. But it will be observed that this claim relates to the parties and not to the remedy. That argument does not deny that such a determination by the railroad commissioners is reviewable by certiorari, but challenges merely the right of the owners of lands affected to sue out the writ, because it is said they have another remedy.
The right of the Appellate Division, therefore, to review such a determination by the railroad commissioners as is involved in this case, seems to be settled in terms by the Loughran case, as it is in principle by a long line of earlier cases, and this brings us to a consideration of the claim that these relators are not in a position to invoke a review of the determination by the courts. It is true that they are residents of Goshen, as the relators in the Loughran case were residents of Kingston, but it is urged that the particular residents who are relators in this case also happen to own land through which the railroad will pass, if constructed, and, therefore, will have *210 an opportunity in that proceeding to try out the question of public convenience and necessity, and hence this case is within the prohibition of section 2122 of the Code of Civil Procedure, which forbids a review by certiorari of a determination which does not finally determine the rights of the parties with respect to the matter to be reviewed. There are several answers to this contention, but the one which I prefer to make takes issue with the assertion that these relators have still the right to have tried out and decided in proceedings in invitum the question whether this railroad, when constructed, will subserve a public use. Prior to the enactment of chapter 676 of the Laws of 1892, authorizing the making of a certificate of necessity by the railroad commissioners, it was the undoubted right of the landowner, in condemnation proceedings, to defend on the ground that the taking of private property for the purposes of the railroad petitioner was not a taking for public use. (Matter ofNiagara Falls Whirlpool Ry. Co., supra.) This was not one property owner's right, but it was every property owner's right along the line of the railroad, while on the other hand other property owners living close to the line of the railroad, and perhaps with property so situated as to cause them to suffer far greater damage than their neighbors through whose land the railroad passed, were given no opportunity whatever to present for judicial determination the question whether the public use required the building of the railroad. Experience had shown that there were other reasons why this important question of the public convenience and necessity of a proposed railroad should be tried out and decided at the very beginning of the career of the corporation. Railroad construction was often threatened, and sometimes undertaken, with the view of securing for its promoters tribute from a railroad corporation thus threatened with competition. And again, the interests of the investors in railroad enterprises seemed to require that the promoters of such enterprises should not be permitted to undertake the construction of such a work where it was clear that public convenience and necessity did not require it. These and other *211 reasons undoubtedly moved the legislature to provide a method by which the question of public convenience and necessity should be judicially determined at the very beginning of the corporate life of a railroad corporation, and to accomplish that result it conferred upon the board of railroad commissioners the power and the duty to hear and decide this question in all cases. 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. Reasonable regulations for the working out of the scheme have been adopted by the railroad commissioners, and an opportunity is always given, as in this case, to the landowners and others interested to challenge the claim of the corporation that the construction of its railroad is a public convenience and a necessity. The fact that the question to be decided is a judicial one insures a right of review in the courts by a writ of certiorari, and thus, by a simple method of procedure, the legality of the enterprise and the public need for it are settled in one proceeding, instead of being the subjects of controversy in many, and all question is put at rest at a very early stage of the corporate existence.
If the views expressed are well founded, it follows that the determination of the railroad commissioners finally determined the rights of these parties as to the question of public convenience and necessity for the railroad, and, therefore, section 2122 of the Code of Civil Procedure does not affect them.
At the Appellate Division the attorney-general appeared by one of his deputies and asked to be heard on behalf of the board of railroad commissioners. The court held that the board had no right to be heard by counsel, but permission was given to the attorney-general to address the court on behalf of the People, and to the Goshen Railroad Company to use the *212
attorney-general's brief, if so desired, and it was used. The board of railroad commissioners, by the attorney-general, appealed from such order, as did the Goshen Railroad Company, and all now insist that the denial of the right of such commissioners to be heard by the attorney-general was error for which the order should be reversed. It is the general rule that a court or board exercising judicial functions by permission of some statute, has no interest in maintaining its determination, and, therefore, can neither appeal from an order of the court reversing the proceedings, nor be heard on the appeal. (People ex rel.Breslin v. Lawrence,
Our examination of the record leads to the conclusion that upon the merits the order of the Appellate Division is right, and should be affirmed. *213
Dissenting Opinion
The Erie Railroad Company is a corporation operating a railroad between New York, Buffalo, Chicago, and other points in the west. Its main line runs through the village of Goshen, crossing numerous streets at the surface upon a steep grade with sharp curves, and its heavily-laden trains require the services of an additional engine in order to pass through the village. In order to save time and expense in the running of the trains and to enable the company to compete with other trunk lines from the west, the officers of the Erie Company devised a plan for a cut-off road running partly outside of the village and partly within the corporate limits, but beyond the thickly-settled portions, of about two and three-quarters miles in length over which they could run their through freight trains, thereby relieving the village of the noise, smoke and delay at street crossings occasioned by the taking of trains through the village, and at the same time save to the company the expenses of maintaining a pusher engine, as well as considerable time. For the purpose of accomplishing this result, the Erie officials organized a new corporation under the name of Goshen Railroad Company, designed, as they say, as an auxiliary company to the Erie for the purpose of building the proposed new road. The reason for this, as given by their counsel, is, that the Erie road is mortgaged to the full extent of its value and that company was unable to raise the necessary money to build the new road; that the Goshen Company could mortgage the new road separate from the Erie's and thereby raise the necessary money for its construction, and then rent it to the Erie Company for a sufficient sum to pay the interest on the mortgage.
The Goshen Railroad Company, having been organized and conformed to the preliminary requirements of the statute, applied to the railroad commissioners for a certificate required by section
We do not regard the fact as to whether the proposed road is a public convenience and necessity as properly before us; indeed, we do not understand that the Appellate Division has reversed upon the ground that the new road was not a public convenience and necessity. The prevailing opinion written seems to indicate that the court reached the conclusion that the Goshen corporation was unnecessary and not the proposed road; that the new corporation was considered to be a parasite on the old and that the Erie Company could construct its own cross-cut road and thereby secure all of the good to be accomplished and rectify all of the evils complained of. We shall not stop to consider all of the questions discussed, not even the question as to whether a new corporation was proper, or whether the commissioners had any jurisdiction to determine that question; for to our minds there are other questions which we think dispose of this case before reaching those alluded to.
Section 2127 of the Code of Civil Procedure provides that "An application for the writ must be made by, or in behalf of, a person aggrieved by the determination to be reviewed; must be founded upon an affidavit, or a verified petition, which may be accompanied by other written proof; and must show a proper case for the issuing of the writ."
Section 2122, so far as is material, provides that "Except as otherwise expressly prescribed by a statute, a writ of certiorari cannot be issued, in either of the following cases: 1. To review a determination which does not finally determine the rights of the parties, with respect to the matter to be reviewed." *215
It will at once be seen that a review by certiorari can only be had by a person aggrieved by the determination of the commissioners, and that it cannot be had by such a person, unless it finally determines his rights with respect to the matter to be reviewed.
The relators are the owners of lands through which a portion of the new road is proposed to be built. Section
In Matter of Niagara Falls and Whirlpool Railway Company *216
(
It will at once be seen that certiorari is not the remedy provided by the statute for the relators, and that a remedy has been provided in which the question raised by them upon this review may be tried out and determined in a proceeding in which they are necessary and proper parties. It will also be seen that a review by certiorari does not necessarily finally determine the rights of the relators, for if they are unsuccessful upon this review, they may again litigate the same question when their land is sought to be taken.
It is contended that the case of People ex rel. Loughran v.Railroad Commissioners (
Our conclusion is, that the writ of certiorari in this case was prohibited by the provisions of section 2122 of the Code of Civil Procedure. The order of the Appellate Division should be reversed and the writ dismissed, with costs.
GRAY, O'BRIEN and VANN, JJ., concur with PARKER, Ch. J., for affirmance; BARTLETT and MARTIN, JJ., concur with HAIGHT, J., for reversal.
Order affirmed.