In Re City of Buffalo to Open Delavan Avenue

Landon, J. It may be conceded that the right of appeal here in question does not exist unless conferred by statute. On behalf of the city it is urged that the terms of the statute do not embrace such an appeal. The point of the contention is that the right of appeal is given only from a decision óf the board of railroad commissioners and not a determination of a municipal body. Section 61 of the Railroad Law (Oh. ■754, Laws 1897; ch. 520, Laws 1898) provides that when a new street, or new portion of a street, shall hereafter be constructed across a steam surface railroad, other than by a change .of a grade crossing, pursuant to section 62 of the act, it shall pass over or under such railroad or at grade as the board of railroad commissioners shall direct. But the municipal corporation shall first determine whether such new street, or portion of a street, is necessary. If it determines it to be necessary, then the municipal corporation shall apply to the board of railroad commissioners to determine whether the new street, or portion of a street, shall pass over or under the railroad or at grade, and that board must determine these matters. The act requires, in both cases, that the railroad company shall have notice of the time and place of the hearing and the right to be heard. In the case before us the railroad company had notice, and having been heard before the municipal corporation, namely, the common council of the city, appealed from its determination to the Appellate Division. Section 62 provides that the board of railroad commissioners shall determine what alterations or changes, if any, shall be made in changing an existing grade crossing to one above or below grade, and speaks of its determination as a decision, *259 and then provides : “ Any person aggrieved by such decision, or by a decision made pursuant to sections 60 and 61 hereof and who was a party to said proceeding, may appeal therefrom to the Appellate Division of the Supreme Court in the department in which such grade crossing is situated and to the Court of Appeals, in the same manner and with like effect as is provided in the case of appeals from an order of the Supreme Court.” We think this authorizes the appeal taken in this proceeding to the Appellate Division. The determination of the necessity of extending a new street or new portion of a street across an existing railroad is certainly of as much importance as the determination of the details of such crossing. The common council has the determination of this necessity; it is a single subject, and the determination upon it is a decision although not expressly so styled in section 61. The determination by the railroad commissioners whether the street shall cross over, or under, the railroad, or at grade, is but one.of the determinations to be made by that body. Whichever method is adopted, the board must further determine the details of executing it. It is convenient to embrace these several determinations in one decision and to speak of the whole as a decision. Thus the use of the word decision in connection with the several "determinations of the railroad commissioners, and the absence of its use in connection with the single determination of the common council, is apparent. We do not think any distinction in the right to appeal was intended. It is further objected in behalf of the city that the determination of the municipal authorities is not an exercise of any judicial function, but is an act of political sovereignty, legislative in its nature, to be exercised by the body to whom the legislature has delegated the authority, and, therefore, not the proper subject of judicial review. If the legislature had delegated the authority to the municipal body without qualification to determine as to the necessity of this crossing, the case would be different. (People ex rel. Herrick v. Smithy 21 N. Y. 595 ; Matter of Townsend, 39 N. Y. 171; Matter *260 of Fowler, 53 N. Y. 60; Matter of Sackett Street, 74 N. Y. 95.) But section 61 provides that the municipal body must give fifteen days’ notice of its intention to the railroad company, and of the time and place of hearing, and expressly provides that the railroad company shall have a right to be heard upon the question of the necessity of such street. The reason is manifest. The railroad company is already using its railroad by virtue of the right of eminent domain, and although that is not prohibitive of legislative authorization of new street and highway crossings (Prest., etc., Delaware & Hudson Canal Co. v. Village of Whitehall, 90 N. Y. 21; Buffalo, B. & L. Ry. Co. v. N. Y., L. Erie & W. R. R. Co., 72 Hun, 587), yet it presents such questions of fact of a judicial nature, touching relative necessities, public uses, public danger, comparison of cost to benefits, promotion of private enterprises under guise of public uses, all of which are suggested by this record, as might well induce the legislature to submit the question of necessity to municipal determination, subject to judicial review. There is no constitutional restriction upon such a delegation of authority and such an exercise of judicial jurisdiction. The cases first above cited, and the statutes touching railway crossings, and statutes regulating the exercise of the power of eminent domain (Condemnation Law; Code C. P. sec. 3357), show that judicial jurisdiction and revision are, whenever the state does not directly act for itself, an important feature of its policy. The same judicial revision may not be necessary, but it may be proper in cases where the state itself is the direct actor; it is for the legislature to decide. We think section 62 of the Bailroad Law authorizes the appeal to the Appellate Division, and that that court has the power to review the determination of the common council. We' answer both questions in the affirmative and affirm the order, with costs. Parker, Oh. J., O’Brien, Bartlett, Martin, Vann and Cullen, JJ., concur. Order affirmed.