Opinion
January 5, 1916.
Hoyt Spratt, for the New York Central and Hudson River Railroad Company.
Rogers, Locke Babcock, for the Delaware, Lackawanna and Western Railroad Company.
Moot, Sprague, Brownell Marcy, for the Erie Railroad Company.
Kenefick, Cooke, Mitchell Bass [ Maurice C. Spratt of counsel], for the Lehigh Valley Railroad Company.
John L. Romer, for certain landowners.
John L. Ahern, attorney in person.
Williams, Minard Howell, for Wood and Brooks Company.
Ledyard P. Hale, for the Public Service Commission.
Clinton, Clinton Striker [ George Clinton, Sr., of counsel], for residents and taxpayers.
William S. Rann, Corporation Counsel [ Harry D. Sanders of counsel], for the city of Buffalo.
White Babcock [ Edward P. White of counsel], for the King Sewing Machine Company.
Edward W. Hatch and Frank B. Church, for the Frontier and Western Railroad Company.
This application, by certiorari, seeks review of the determination of the Public Service Commission, Second District, awarding to the Frontier and Western Railroad Company a certificate of convenience and necessity, under section 9 of the Railroad Law (Consol. Laws, chap. 49; Laws of 1910, chap. 481), and section 53 of the Public Service Commissions Law (Consol. Laws, chap. 48; Laws of 1910, chap. 480).
The application presents not only the propriety of the granting of any certificate, but also assails the power of the Commission to fix the particular route it has approved and as to which it has granted its certificate.
The efforts of the respondent railroad company to procure a certificate of the Commission have heretofore brought the controversy before the Appellate Division of the Fourth Department. ( Matter of Frontier Western R.R. Co., 155 App. Div. 57. ) The history of the project and the essential facts are all sufficiently therein set forth. In that decision the court pointed out the scope of the authority of the Public Service Commission upon applications of this character, and particularly with reference to the route of the contemplated railroad. The conclusion was there reached that the Commission had authority to consider and approve any route for the railroad which left unchanged the termini of the road.
As there pointed out, it is the description of the proposed line, as embodied in the certificate of incorporation, which forms the sole limitation to the investigation of the Commission, and such general identification is not required to and does not in this instance proceed further than a location of the two ends of the line.
Following that decision, the matter was remanded to the Commission for determination of the question of convenience and necessity, under the rule there indicated, and the order was later enlarged to admit of the taking of further evidence upon such rehearing. Voluminous additional proof has been taken, and the Commission has now approved a route for the line, designated as the A-B-C route. It is now urged that such route is at variance with the route designated in the certificate of incorporation, and hence without the power of the Commission to approve, within the rule as laid down by the Appellate Division in the Fourth Department.
In connection with this claim it appears that the southerly terminus of the A-B-C route is identical with that described in the certificate of incorporation; and hence the sole question of variance in the location of the termini, between the route approved and that specified in the certificate of incorporation, arises with reference to the northerly terminus.
The certificate of incorporation describes this northerly terminus as being 50 feet northerly of the southerly line of lot 44, in the town of Tonawanda, and about 500 feet westerly of the westerly line of the right of way of the Niagara Falls branch of the New York Central and Hudson River railroad. It further identifies that point as being in the center line of the Buffalo Frontier Terminal railroad (a contemplated and heretofore approved line).
Upon the A-B-C, or approved route, this terminus is identified as being about 1,200 feet easterly of the New York Central and Hudson River railroad, and there is further indicated another connection some 700 feet westerly of that right of way.
It will be noted that the certificate fixes the distance from the New York Central lands approximately only, and that the real objective point, in this location, is the line of the Buffalo Frontier Terminal railroad. Nor was there need of fixing the location of this terminus with the degree of exactitude followed by this certificate. Section 5 of the Railroad Law, which re-enacted section 2 of the former Railroad Law (Gen. Laws, chap. 39 [Laws of 1890, chap. 565], as amd. by Laws of 1892, chap. 676, and Laws of 1905, chap. 727), controls the contents of the certificate of incorporation, and merely requires such to state the termini and length of the road and the counties through which same is to run.
In view of the fact that the real objective is identified as the line of the Buffalo and Frontier Terminal railroad, and that the point of intersection with such line is somewhat indefinitely described in the articles of incorporation, we feel at liberty to hold that there has been no substantial variance in the location of this northerly terminus.
With the location of the line, between the termini, we are not concerned, and the selection of the route approved lies, therefore, wholly within the power of the Commission.
A careful examination of the new evidence, taken since the hearing before the Appellate Division, Fourth Department, discloses nothing leading to a contrary conclusion than there reached. The determination of the Commission as to necessity, including the prospective business success of the project, seems well founded in the proof, and we find no reason for disturbing its conclusions.
The writ should be dismissed.
All concurred, except COCHRANE, J., dissenting; KELLOGG, P.J., not sitting.
Determination of the Public Service Commission confirmed, with fifty dollars costs and disbursements, and writ dismissed.