#### The People of the State of New York ex rel. Town of West Seneca, Appellant, v. The Public Service Commission for the Second District of the State of New York and the Terminal Railway of Buffalo, Respondents.

Third Department,

January 22, 1909.

Railroads — grade crossings — powers of Public Service Commission — right to reconsider matters determined by former Board of Railroad Commissioners.

The Public Service Commission has full power and jurisdiction to do whatever the former Board of Railroad Commissioners might have done under the grade crossing provisions of the Railroad Law, even if the matter was pending and undetermined before the Railroad Commissioners when the jurisdiction of that board was transferred to the Public Service Commission.

The former Board of Railroad Commissioners had power to reinvestigate, hear and determine on new testimony matters previously decided by that board concerning grade crossings, and had the right to change its decision on all matters involved whether of substance or detail.

Hence, the Public Service Commission possessing all the powers of the former board can rehear and redetermine on new evidence the proper method of constructing a grade crossing although" an application for the reconsideration of a prior determination on the matter was pending undetermined when the Board of Railroad Commissioners was abolished.

The Public Service Commission is not barred from reconsidering a prior determination of the Railroad Commissioners merely because that decision had been sustained on appeal.

Appeal by the relator, the Town of West Seneca, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 24th day of September, 1908, denying the relator’s motion for an absolute writ of prohibition and dismissing an alternative writ of prohibition previously granted.

On Movember 30, 1906, the respondent the Terminal Railway of Buffalo, a steam surface railroad operating a double-track road through the town of West Seneca, the appellant herein, in Erie county, presented to the Board of Railroad Commissioners a petition alleging that it was building extensive railroad yards in said town ; that its tracks were crossed at grade by Clinton street and Mineral Springs road, two highways of said town; that public *336safety required an alteration in the method of said crossings, their approaches and the location thereof; that for the purpose of the yard of petitioner then under construction it would be necessary to lay more tracks across. said highway thus creating an additional reason why such crossings should be changed. The petitioner demanded a decision that public safety required a change in the existing crossings; as to the manner in which such change should be made; and that the petitioner was entitled to immediately lay four additional standard gauge tracks across said highways at grade.

On April 30, 1907, hearings having been had on said petition under sections 60 and 62 of the Railroad Law (Laws of 1890, chap. 565, as amd.*), the Board of Railroad Commissioners made a decision that four additional tracks of the Terminal Railway of Buffalo should immediately cross Clinton" street and the Mineral Springs road highways in said town. It also further determined as follows : “ That the Clinton street highway grade crossing of the Terminal Railway of Buffalo in the town of West Seneca, Erie County, shall be changed to an overhead bridge crossing of said railway to be situated at the present location'of the crossing; that said overhead bridge shall be of steel, of a width of thirty feet for roadway and have a five feet sidewalk on brackets, and be of a length to span the entire right of way of said railway; that the floor of said overhead bridge shall be of asphalt; that the approaches to said overhead bridge shall be on a grade not greater than four per cent, and shall be of a width of ■ thirty-five feet, including roadway and sidewalk ; that said' approaches shall be paved with brick.; that said overhead bridge shall be of sufficient strength to carry a street surface railroad car weighing fifty tons loaded; that the Terminal Railway of Buffalo shall maintain the roadway and sidewalk on the said overhead bridge and said approaches thereto, irrespective of the provisions of section 64 of the Railroad Law;ϯ that the Terminal Railway of Buffalo shall pay all damages lawfully due adjoining property owners where the approaches to said overhead bridges are erected in front of private property.” A similar determination, was made as to the Mineral Springs road highway, and the order *337also contained this provision: *“*This Board also hereby determines, under section 65 of the Railroad Law,* that none of the costs of the work or expenses or claims connected therewith under this determination shall be borne by the State or by the town of West Seneca, Erie County.”

The town of West Seneca, feeling" aggrieved by such decision, appealed therefrom to the Appellate "Division, fourth department, where the decision was affirmed *(Matter of Terminal*Railway, 122 App. Div. 896), and to the Court of Appeals with like result. (192 IT. Y. 534.) The railroad company appeared on said appeals in support of the decision of the Railroad Commissioners.

Pending such appeals and on June 24, 1907, the Terminal Railway Company filed with the Board of Railroad Commissioners another petition setting forth the proceedings previously had, stating that it was necessary for the purposes of its yard construction that it should have six instead of four additional tracks crossing said highways.; alleging facts which it was claimed demonstrated that the viaduct provided for by the previous decision should be changed in size, character of structure and carrying capacity; and that the petitioner should be relieved from a portion of the burden of building and maintaining said viaduct as required by the former decision. Such petition concluded as follows: “ Wherefore, your petitioner prays that your Honorable Board shall appoint a time and place for a rehearing .and that said Board shall determine (l).that your petitioner shall have the right to construct and maintain immediately at grade six additional tracks across Clinton Street in the Town of West Seneca, instead of four as granted by your determination of April 30th, 1907; (2) that said determination of this Board be modified by providing that the structures shall be of a character to maintain a load of thirty tons; (3) that the said determination shall be so modified as to change the width of the structures exclusive of said walk from thirty to twenty-four feet; (4) that the said determination shall he so modified as to provide that the roadways and approaches shall be maintained pursuant to the statute governing the maintenance of highways <jf the towns; *338(5) that the said determination of this Board be modified so as to provide for* such roadways upon said viaducts shall be of first-class planking, and that the approaches shall be constructed of a.character similar to the adjoining and connecting roadways.”

On June 28, 1907, a hearing was had on said last-mentioned application by the Board of Railroad Commissioners at which hearing the relator appeared and objected to any action being taken: Counsel were heard at length concerning the matter, but no conclusion was reached by the Board of Railroad Commissioners or disposition made of the pending application. Three days/thereafter and on July 1,1907, the Public Service Commissions Law (Laws of 1907,: chap. 429) became effective and thereby the Board of Railroad Commissioners was abolished and the Public Service Commissions came into existence.

On July 17, 1907, the Public Service Commission of the second district took up the matter of the Terminal railway’s application for a rehearing before the former Board of Railroad Commissioners. The relator appeared in objection thereto. Extensive arguments were had and the matter was held in abeyance until June 29,1908, when the Public Service Commission announced. its position in reference to the matter as follows: “ *Resolved,*that a hearing be had at the office of this Commission in the City of Buffalo, on the 29th day of June, 1908, upon the application of the Terminal Railway of Buffalo,, relative to the order of the former Board of Railroad Commissioners, dated April 30th, 1907, concerning the highway crossings of said railway at the Mineral Spring road and Clinton street highway crossings in the Town of West Seneca, Erie County. That upon such hearing the Commission will take under consideration and receive evidence upozz the following *matters:*(1) The proper construction of the roadway of the'steel viaducts directed by said order; (2) the clear width of the roadways upon such viaducts; (3) whether the viaducts upon the Clinton street highway shall be of sufficient strength and capacity to support a fiftydon loaded trolley car; (4) whether the provisions of said order that the' Terminal! Railway of Buffalo shall maintain the roadway and sidewalk on the said viaducts or bridges, irrespective of the provisions of section 64 of'the. Railroad Law, is a lawful provision. That copies *339of this resolution be served by the Secretary forthwith upon said Railway Company and upon all other- parties interested.”

Thereupon the relator procured an alternative writ of prohibition restraining the respondents from further proceeding in the matter prior to the return to said writ, and .on such return the court at Special Term denied the application for an absolute writ and vacated the alternative writ theretofore granted. From such order of the Special Term the relator appeals. '

*William J. Evans*and *William Brennan, Jr.,*for the appellant.

*Ledyard P. Hale,*for the respondent, The Public Service Commission.

*Charles A. Pooley,*for the respondent, Terminal Railway of Buffalo.

*

 See Railroad Law, §§ 60, 62, added by Laws of 1897, chap. 754; and § 62, amd by Laws of 1898, chap. 520, and Laws of 1899, chap. 359.— [Rep.

ϯ

 Added by Laws of 1897, chap. 754, and amd. by Laws of 1902, chap. 140.— [Rep-

*

 Added by Laws of 1897, chap. 754, and amd. by Laws of 1898, chap. 520, and Laws of 1900, chap, 517.— [Rep.

*

Sic.

Cochrane, J.:

The question is as to the jurisdiction of the Public Service Commission to rehear and redetermine a matter heard and determined by the Board of Railroad Commissioners, under the grade-crossing provisions of the Railroad Law (§§ 60 *et seq.).*

Section 80 of the Public Service Commissions Law. is as follows: “ On and after the talcing' effect of this act the board of railroad commissioners shall be abolished. All the powers and duties of such board conferred and imposed by any statute of this State shall thereupon be exercised and performed by the public service commissions.” The grade-crossing provisions of. the Railroad Law under which the proceedings before the Railroad Commissioners were had which resulted in their decision of April 30, 1907, are left unrepealed, except that by said section 80 of the Public Service Commissions Law said Board of Railroad Commissioners is abolished, but the powers and duties conferred on said board are to be exercised and performed by the Public Service Commissions.

Section 85 of the Public Service Commissions Law provides: “Any investigation, examination or proceeding undertaken, commenced or instituted by the said boards or commission, .or either of them (which includes the board of railroad commissioners), prior to the taking effect of this act, may be conducted and continued to a final determination by the proper public service commission in the *340same manner, under the same terms and conditions,' and with the same effect as though such boards or commission had not been abolished.”

There seems to be no doubt, therefore, but that the Public Service Commissions have full power and jurisdiction to do whatever, under the grade-crossing provisions of the Railroad Law, the former Board of Railroad Commissioners might have done, and it is immaterial whether or not the subject-matter of their proposed action was pending undetermined before the Board of Railroad Commissioners. If the latter board being in existence would have jurisdiction to rehear the proceeding instituted by the Terminal Railway Company and make another decision in respect thereto, the Public • Service Commissions under the statutes referred to possess like jurisdiction. This requires us to consider the jurisdiction of the Board of Railroad Commissioners to rehear the controversy.

The Public Service Commission does not propose to arbitrarily modify or change the decision of the board which preceded it but to rehear the matter *db initio*in certain specified particulars on new evidence and thereby arrive at an independent result. The application of the Terminal Railway Company to the former Board of Railroad Commissioners was for a *“*rehearing ” of the matter decided by said board. The purpose of the Public Service Commission as evidenced by its disposition of that application and as announced by it is to *“*receive evidence ” on matters included within the decision of the Board of Railroad Commissioners.

As to the power of thé Board of Railroad Commissioners to reinvestigate and hear and decide again on new testimony matters once decided by such board concerning grade crossings and the elimination thereof we think from an examination of the grade crossing provisions of the Railroad Law and from the nature of the duties and responsibilities of such board that such power existed and in the nature of things must have existed. There is more reason why such board should have had great latitude in respect to such matters than is usually exercised in the courts concerning ordinary controversies between individuals. The Board of Railroad Commissioners was clothed with grave responsibilities, wide discretion and comprehensive supervisory powers in respect to grade crossings and the elimination thereof not merely with reference to private rights *341and interests but also with reference to the public safety, convenience and utility. Such board was concerned with matters of public policy and interest. It not only determined as to the plan and project of the enterprise but it was expressly provided in the statute that the work should be performed “ subject to the supervision of and approval of the Board of Bailroad Commissioners.” Plans and specifications were required to be submitted to it for its approval before letting any contract. The proposals of contractors might be rejected by the board. It was authorized to employ experts and engineers in the supervision and accomplishment of the work. It may properly be said that the work was planned, designed and executed under the authority and supervision of the board. It is true that many of these matters related to details of construction and it is doubtless true that the Board of Public Service Commissioners in the present instance contemplates a reinvestigation to a certain extent which involves the substance or essence of the decision which has been made and which goes to the foundation of such decision. But when it is considered that the board was responsible not only for details of construction but for the existence of the project, relating as it did to matters of public safety and convenience and to so many widely diversified interests, and that it had plenary and comprehensive powers/in reference to such project from its inception, there can be little doubt but that the statutes by clear implication conferred on the board the' power to change its own plans and decisions whether relating to substance or detail. The board could not foresee and anticipate every emergency which might present itself or make proper provision for conditions which might arise in the future. Judicial and administrative powers and duties are so closely interwoven in such cases that it is sometimes difficult to draw the line of demarcation. It was evidently the purpose of the statute to surround and clothe the board with continuing powers and duties and to give it the right to change its decisions in respect to all matters involved, whether of substance or detail, whenever experience, observation or subsequent information should demonstrate their unwisdom. Such power was necessary in the interests of municipalities no less than in the interests of railroad companies. Suppose it had become apparent after the decision in question that the viaduct would be too small for necessary traffic or that it would be *342unsafe for public use, does the relator claim that the Board of Railroad Commissioners would have been powerless to correct this mistake simply because' it had already decided that public use and public safety would be properly subserved by a smaller or a weaker structure ? In the present instance it is claimed by the Terminal Railway Company that the decision as made requires an unnecessary expenditure of approximately half a million dollars without any corresponding benefit to the municipalities affected. The Ptíblie Service Commission proposes to investigate this allegation and to receive evidence in reference thereto, and should the claim be well founded there would be a strange remissness in the statutes if the board was without power to grant relief. The policy of the State was to vest extensive powers in the Board of Railroad Commissioners in reference to these matters,, and if such board was without, power to reconsider a matter simply because it had once reached a conclusion in reference thereto its usefulness must have been seriously hampered and the policy of the law largely thwarted.

It is true that section 22 of the Public Service Commissions Law expressly provides for a rehearing in respect to any determination and- such express power was not in terms, conferred on the former Board of Railroad Commissioners. But the Public Service Commissioners have conferred upon them the powers and duties of several boards and in respect to manifold matters other than grade crossings, and no inference can, therefore, be drawn from the provisions of said section 22 that the Board of Railroad Commissioners could not have granted the rehearing in question. We think the power- of the Board of Railroad Commissioners to change its decisions in reference to. matters pertaining -to grade crossings, after further investigation, was clearly implied from the provisions of the statutes having in view the nature and character of the duties such board was required to perform. Undoubtedly it was necessary that such change should be effected with due regard to the rights of all- parties and in such a manner as to conserve such rights, blit we think the power clearly, existed and that the Board of Public Service Commissioners now succeeds to such power and that in the proper exercise thereof it should not be interrupted.

The appellant places particular' emphasis on the fact that the decision of the Board of Railroad Commissioners safely ran the *343gauntlet of the appellate courts. All that the appellate courts held in reference to such decision was that the Railroad Commissioners had power to make the same and that as against the appeal of the appellant there was no improper exercise of such power. . That is apparent from the opinion in the case of *Matter of Terminal Railway*(122 App. Div. 59), which was a companion case to the present one and on which opinion the appeal of the appellant herein in.the Appellate Division was determined. It was decided merely that the appellant had no cause for complaint. It does not follow that if the decision had been more favorable to the railway company such decision would not likewise have been affirmed. The courts in these cases are accustomed to leave very much to the discretion and wisdom of the Commissioners and to permit a wide latitude in the exercise thereof. The affirmances by the courts were based on the former evidence. And if on a subsequent investigation it should appear that some other disposition of the matter is more just and appropriate for all interests concerned the former action, of the appellate courts presents no obstacle.

The point is strenuously urged by the respondents that by this writ of prohibition the appellant has mistaken its remedy. We have preferred' to treat the matter' as properly before us that we might dispose of the case on its merits.

The final order should be affirmed, with costs.

Final order unanimously affirmed, with costs.