#### In re DEPEW & S. W. R. CO.

(Supreme Court, General Term, Fifth Department.

December 28, 1895.)

1. Railroad Commissioners—Certificate of Public Necessity.

The determination of railroad commissioners, on an application for a certificate, that the public necessity and convenience require the construction of the railroad as proposed (Laws 1892, c. 676, § 59), is entitled to support so far as it is fairly justified by the facts, the same as that of any other tribunal subject to review; and where two railroad companies, incorporated to build separate lines of road with the same termini, make such application at the same time, the fact of granting a certificate to one will be recognized as a reason for not granting one to the other.

2. Same—Propriety of Granting Certificate.

The provision of said section 59 that, after a refusal to grant such certificate, the board shall certify a copy of all maps and papers on file in its office and of the findings of the board, when so requested by the directors, who may thereupon present the same to the general term of the supreme court, which shall have power, in its discretion, to order said board, for reasons stated, to issue such certificate, does not give the court authority to pass on the propriety of granting a certificate.

8. Same—Evidence—Burden of Proof.

On application to the supreme court to review the decision of the board refusing a certificate, the burden is on the moving company to show affirmatively that the board erred.

4. Same—Simultaneous Applications—Priority.

There is nothing in the statute which contemplates that one company applying to the board of railroad commissioners for a certificate shall have priority over another company because it was first incorporated.

Application by the Depew & Southwestern Railroad Company, pursuant to Laws 1892, c. 676, § 59, for direction to the board of railroad commissioners to issue a certificate that public convenience and necessity required the construction of the railroad as proposed in the articles of association of said company.

Denied.

Argued before LEWIS, BRADLEY, WARD, and ADAMS, JJ.

Wilson S. Bissell, for the motion.

Daniel H. McMillen, opposed.

BRADLEY, J.

The Depew & Southwestern Railroad Company was duly incorporated, and the termini of its proposed line of railroad were Depew and Blasdell, in the county of Erie. The Terminal Railway of Buffalo was also duly incorporated, and the proposed termini were the same. Each company made application to-*992the board of railroad commissioners for a certificate under the statute which provides that “no railroad corporation hereafter formed under the laws of this state shall exercise the powers conferred by law upon such corporations or begin the construction of its road until the board of railroad commissioners shall certify,” among other things, “that the public convenience and necessity require the construction of said railroad as proposed in said articles of association.” Laws 1892, c. 676, § 59. The two applications were heard together, and the board of railroad commissioners granted the application of the Terminal Railway, and issued a certificate to the effect that the public convenience and necessity required the construction of the railroad proposed by the articles of association of that company. The board denied the application^ of the Depew & Southwestern Railroad Company. The case was brought here pursuant to the statute which provides that, “after a refusal to grant such certificate, the board shall certify a copy of all maps and papers on file in its office and of findings of the board when so requested by the directors,” who “may thereupon present the same to the general term of the supreme court of the department within which said road is proposed in whole or in part to be constructed, and said general term shall have power, in its discretion, to order said board for reasons stated, to issue said certificate, and it shall be issued accordingly.” Laws 1892, c. 676, § 59.

The convenience and necessity of a railroad from Depew to Blasdell are not questioned, and, for the purpose of facilitating transportation of freight both east and west between New York and Chicago, its importance is apparent. It will shorten the distance about six miles, and the time about that number of hours, and will obviate the necessity and inconvenience of taking freight cars through the city of Buffalo to interchange with connecting roads. There are five railroads passing through Blasdell, to be brought into more immediate or direct connection with four at Depew by the proposed line between those two places. Both companies, in their organization, complied in all respects with the statute, and did all that was essential preliminarily to the applications to the board, proceeded in good faith, and had the purpose and ability to construct the road proposed by their articles of association. But the public convenience and necessity required the construction of only one line of railroad having those termini. The question, as treated by the board, was one of preference between them. In this it is insisted on the part of the Depew & Southwestern Railroad Company that the board misapprehended its powers given by the statute, and, in violation of it, issued the certificate in behalf of the Terminal Company; that it was within the province of the board to determine whether or not the public convenience and necessity required a railroad having the proposed termini; and that when that was determined in the affirmative the Depew & Southwestern Company was, by reason of the priority of its corporate creation, entitled to the benefit of the certificate, which the board was thereupon required to issue. The directors of both companies proceeded concurrently in process of organization. While the articles of associa*993tion of the Terminal Company were executed two days prior to those of the Depew & Southwestern Company, the latter was, by the filing of them, incorporated two days earlier than was the other company. The application of each of the companies for hearing was filed with the board the same day, the publication of the articles of association of both companies occupied the same time, the notices for hearing were given at and for the same time, and the applications were heard together. It may be that the situation presented in this case was not contemplated by the statute. And, in case of competing companies in applications made to the board, there may be some reason, in the matter of fairness and propriety, for granting the certificate to the one first incorporated, other things being equal as between them. But it is not seen that there is any vested legal right of any one of two or more companies making applications, concurrently heard and considered by the board, to have the benefit of a certificate upon its determination that public convenience and necessity for the proposed railroad exist.

Without the aid of some statute to that effect, the priority in such case of corporate existence does not necessarily furnish priority of legal right, as against a competing application to the board. There is no statute in support of such a proposition applicable to that stage of the corporate action of a railroad company. While the creation of a railroad corporation is a right to be exercised in the manner provided by the statute, the right to exercise the power of proceeding to the construction of its proposed railroad is subject to and dependent upon the supervisory consideration of the board, and its certificate, preliminarily made, that “public convenience and necessity require the construction of said railroad as proposed in said articles of association.” This has reference to the articles of association of some particular company to be mentioned in the certificate. It would not answer the purpose of the statute for the board to certify merely that public convenience and necessity required the construction of a railroad having the termini mentioned. It is to certify that such convenience and necessity require the construction of the road as proposed in said articles, and the certificate is apparently available only to the company having the articles thus mentioned in the certificate. And, although the termini described in the articles of both companies were the same, it may be assumed that, as represented by the maps and profiles, there were some distinguishing features in the route or line of the road as proposed by the companies. In reaching the conclusion essential to the issuing of a certificate, the board act judicially, and when, after refusal to grant it, the matter is brought to the general term, the action of the court is in the nature of a review of the determination of the board; and the burden is with the moving company to make it affirmatively appear that the board erred in its conclusion and in its refusal of the certificate, upon the facts as presented to it. The reasons given for the action of the board do not necessarily control the disposition to be made of the case on the review, unless the facts required a different conclusion on the hear*994ing. It is not enough, to overcome the refusal there, that the facts merely permitted the issuing of a certificate, unless the determination of the board was contrary to the clear weight of the evidence. Its judgment is entitled to support so far as it is fairly justified by the facts, the same as is that of any other tribunal subjected to review. People v. Ulster & D. R. Co., 58 Hun, 267, 12 N. Y. Supp. 303; In re New Hamburgh & P. C. R. Co., 76 Hun, 76, 27 N. Y. Supp. 664; In re Amsterdam, J. & G. R. Co., 86 Hun, 578, 33 N. Y. Supp. 1009. The only power of the general term to reconsider the action of the board is that given by the statute before referred to, and it can be sought and exercised only when the certificate is refused. In the present case it was denied to the Depew & Southwestern Company, and that refusal is subject to review by this court. The propriety of granting the certificate to the Terminal Company cannot be the subject of consideration in this matter. The claim urged in behalf of the moving company, that it was not within the power of the board to deny to it the certificate, and to grant one to the other company, presents a question which can only be considered and determined elsewhere than on this statutory review.

The suggestion that in this matter the court may reverse the action of the board in granting the certificate, and direct it to issue one to the Depew & Southwestern Company, or require the board to issue a certificate to the latter company, and place the other company in a subordinate relation to it in respect to the right to proceed in the construction of the proposed railroad, is not tenable. No such power is within the contemplation of that given by the statute from which the court derives all its power in a proceeding of this character. The issuing of the certificate in behalf of the one company was not the refusal of a certificate in behalf of the other, although it furnished to the board a reason for the denial of one to the latter company. The relative merits of the two companies, on whatever grounds or for whatever reasons they may be claimed to exist, in favor of one and against the other company, as respects their applications to the board, are not here for consideration. It was in the power of the board to issue a certificate, and, having granted the certificate in behalf of the Terminal Company, it refused a like certificate to the other company. With the certificate issued we have nothing to do, except so far as it bears upon the question whether public convenience and necessity require the construction of more than one railroad hating the termini before mentioned. It cannot well be urged that such necessity exists, or that the board was required to issue more than one certificate for that purpose. And, since this was done, the refusal to grant another certificate to the Depew & Southwestern Railroad Company requires no further consideration.

The application for direction to the board of railroad commissioners should therefore be denied. All concur.