People Ex Rel. Steward v. Board of Railroad Commissioners

Parker, Ch. J. 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 oh 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 of Rochester, 6 Wend. 564; People ex rel.Loughran v. Railroad Commissioners, 158 N. Y. 421, and cases cited.) Counsel has, therefore, found it necessary to call the duty enjoined upon the railroad commissioners by section fifty-nine of the Railroad Law something else than a judicial duty in order to obtain even the suggestion of a foundation upon which to construct an argument intended to convince the mind that such a determination as this is not reviewable by certiorari. But it is clear that if the duty enjoined upon the board of railroad commissioners by' this section calls upon *207 them to decide some question of fact every time there is an application made to them for the issuing of the certificate authorized hy it, then in the making of that decision it acts judicially, notwithstanding there may he closely interwoven with it certain administrative or ministerial functions that must also he exercised. (People ex rel. Babylon R. R. Co. v. Railroad Commissioners, 32 App. Div. 179 ; 158 N. Y. 711.) In that case the certiorari was issued for the purpose of reviewing the action of the hoard of railroad commissioners in authorizing a change of motive power, under section one hundred of the Railroad Law, and in the course of the opinion by Hr. Justice Laxdox, which expressed the views of both appellate tribunals, it was said: “ It is a part of our staté 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.” Row, 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 per *208 mitted 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 con-, tributed 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 of Niagara Falls c& Whirlpool Railway Company (108 N. Y. 375). ' 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 ex rel. 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 Bailroad Commissioners first had and obtained.” In this case it provides that no railroad corporation shall exercise the ¡lowers conferred by law “until the Board of Bailroad 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 hy 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 hy 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 hy 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 he reviewed. There are several answers to this contention, hut 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 invitwn the question whether this railroad, when constructed, will sub-serve 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 of Niagara 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 2Drovided by the statute requires the publication of the articles of association in each county through which the pi^xised railroad is to 2>ass, 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 projiosed. railroad. Eeasonable regulations for the working out of the scheme have been ado2>ted by the railroad commissioners, and an op2)ortunity 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 2>roceeding, instead of being the subjects of controversy in many, and all question is 2>ut 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 Eailroad 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 Kailroad 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 oil the appeal. (People ex rel. Breslin v. Lawrence, 107 N: Y. 607; People ex rel. Burnham v. Jones, 110 N. Y. 509.) In the latter case, which furnishes an exception to the general rule, it was held that the land commissioners were in a legal sense aggrieved by the reversal of their resolution directing that a patent for 'certain lands under water issue to the Bartholomay Brewing Company, and, therefore, it was their duty to defend their decision. The reason assigned for the decision was that the land commissioners having determined that under the statute they ought to convey the land to the brewing company, it was their duty to do so, but so long as' the order of reversal stood they were prevented from exercising the power of conveying the lands, and, hence, the decision stood in the way of a future discharge of that which they deemed a public duty. This case is not within the exception created by the decision in Burnham’s case. The board of railroad commissioners have no fúrther duties to perform in the premises. Their duty ended with the issue of the certificate, which the Appellate Division reversed and annulled. Having, made the determination that the public convenience, and a necessity required the construction of the Goshen railroad, they had no other or greater interest in its being sustained than has a court in having an order or judgment made by it upheld. 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.