Opinion
January, 1905.
W.D. Painter, for the relator.
Eliot Norton and Theodore R. Tuthill, for the respondent railroad company.
The several objections taken by the relator in this proceeding cannot, in my judgment, be sustained.
The certificate of incorporation of the Binghamton and Southern Railroad Company fixes the western terminus of its proposed road at the point where the Apalachin creek crosses the boundary line between the States of New York and Pennsylvania, and at the northern terminus of the road of the "Pittsburg, Binghamton and Eastern Railroad Company" and the eastern terminus at "the city of Binghamton." It gives the length of the proposed road as about eighteen miles and fixes the capital stock at $180,000. Upon the hearing before the Board of Railroad Commissioners it appeared that the distance from such western terminus to the city of Binghamton, viz., the western boundary thereof, is fifteen and three-tenths miles, and that, if the road were extended from such latter point through the city of Binghamton, along a line that had been surveyed and mapped, to a certain point in Robinson street near the Delaware and Hudson railroad, it would be about four miles longer. In that event the total length to Robinson street would be nineteen and three-tenths miles.
The first objection taken is that, because the proposed line is in fact nineteen and three-tenths miles, the capital stock should have been fixed at $193,000 instead of $180,000, and that there should have been paid in $19,300 instead of $18,000, and that for this reason the certificate is void.
But the line as proposed in the articles of association extends no further east than the "city of Binghamton," and the certificate granted to it by the Board of Railroad Commissioners is for the road as proposed in such articles. A complete road is proposed in such articles of association and certified as necessary, etc., and if under it a road cannot be built to Robinson street (and whether one can or cannot we express no opinion now), nevertheless such articles are not void on that account.
The next objection is that the board acquired no jurisdiction to grant the certificate required by section 59 of the Railroad Law (Laws of 1890, chap. 565, added by Laws of 1892, chap. 676, and amd. by Laws of 1895, chap. 545), because the articles of association had not been published in both of the counties of Broome and Tioga, into which the proposed road extended before the application for such certificate was made to such board.
But, first, the statute does not seem to require it. Secondly, the articles of association were published for three weeks in each of such counties before any hearing was had before the board. A formal application by petition was made to the board for such a certificate on or about November thirteenth, but no action was then taken, except to adjourn the matter indefinitely. By December twenty-fourth, publication having been completed in both counties, the board fixed the 14th of January, 1904, as the time for the first hearing on such application; and notice of that hearing was published in those counties and given as required by such board. Thus the required publication had been made before any action whatever had been taken on the application, and the requirement and purpose of the statute in this respect was fully observed.
The objection that the Board of Railroad Commissioners has no authority to grant a certificate for a part of a proposed route, is not presented by the facts of this case. The road which the board has certified as necessary, etc., is the one proposed in its articles of association. As suggested above, all that we may assume the company proposes to build is specified therein, viz., eighteen miles from its western terminus to the city of Binghamton, and all that is specified therein is certified to be required by public convenience and a necessity; hence this objection is not well taken.
The objection that the evidence does not warrant the conclusion that public convenience and a necessity require the proposed road, is not sustained, for the reasons stated in People ex rel. New York, N.H. H.R.R. Co. v. Comrs. ( 81 App. Div. 242, 249).
The determination of the Board of Railroad Commissioners, therefore, should be confirmed, with fifty dollars costs and disbursements.
Determination of the Railroad Commissioners unanimously confirmed, with fifty dollars costs and disbursements.