XI.

IN THE MATTER OF THE APPLICATION OF THE ITHACA STREET RAILWAY COMPANY FOR THE APPROVAL OF THE BOARD OF RAILROAD COMMISSIONERS OF AN INCREASE OF ITS CAPITAL STOCK FROM $250,000 TO $300,000.

July 9, 1895.

Application having been made to the Board of Railroad Commissioners by the Ithaca Street Railway Company for the approval of the Board of an increase of the capital stock of said company from $250,000 to $300,ooo, and certificates of the proceedings of the stockholders' meeting having been submitted to the Board, as required by the Stock Corporation Law, with proof of the publication of the notice of such meeting, it is

Ordered, that the increase of the capital stock of the Ithaca Street Railway Company from $250,000 to $300,000 be and the same is hereby approved, and that the endorsement of such approval shall be made upon the certificates of the stockholders' meeting, according to the provisions of the Stock Corporation Law.

XII.

IN THE MATTER OF THE APPLICATION OF THE SUSQUEHANNA VALLEY ELECTRIC TRACTION COMPANY FOR THE APPROVAL OF THE BOARD OF RAILROAD COMMISSIONERS OF AN INCREASE OF ITS CAPITAL STOCK FROM $20,000 TO $50,000.

September 9, 1895.

Application having been made to the Board of Railroad Commissioners by the Susquehanna Valley Electric Traction Company for the approval of the Board of an increase of the capital stock of said company from $20,000 to $50,000, nunc pro tunc September 27, 1894, and it appearing from the papers filed with the Board that such increase is a proper one, therefore, it is

Ordered, that the approval of the Board be granted of an increase of the capital stock of the Susquehanna Valley Electric Traction Company from $20,000 to $50,000, nunc pro tunc September 27, 1894, and that such approval be endorsed upon the certificates of the stockholders' meeting, as required by the Stock Corporation Law.

Applications for a Certificate under Section 59

of the Railroad Law.

IN THE MATTER OF THE

I.

APPLICATION

OF THE AMSTERDAM, JOHNSTOWN AND GLOVERSVILLE RAILROAD COMPANY FOR A CERTIFICATE UNDER SECTION 59 OF THE RAILROAD LAW.

November 20, 1894.

The application of the Amsterdam, Johnstown and Gloversville Railroad Company for a certificate under section 59 of the Railroad Law having been duly filed with the Board, August 13, 1894, together with the articles of association thereof, with proof of publication as required by law, and hearing on the same having been set down for September 4, at the office of the Board at Albany; now, after filing due proof of publication of the notice of such hearing, and after further hearing thereon, and after due consideration of the evidence taken and all proceedings had and taken therein, and after hearing Matthew Hale and others as counsel for said petitioners, and Hamilton Harris and others appearing in opposition thereto, and it not appearing to the Board that public convenience and necessity require the construction of said railroad as proposed in said articles of association and as set forth on the maps and profiles filed therein,

Ordered, that the application of the Amsterdam, Johnstown and Gloversville Railroad Company for a certificate under section 59 of the Railroad Law be and the same is hereby denied.

MEMORANDUM FILED WITH ORDER IN THE ABOVE ENTITLED MATTER.

This application is made under section 59 of the Railroad Law. The General Railroad Act of 1850 was passed at a time when it was the natural policy of the State to favor commercial freedom so as to stimulate every kind of enterprise. Under the operation of that law the business interests of the State were rapidly developed, and numbers of railroads were projected and constructed. At the time of the passage of section 59, in 1892, various incidents connected with railroad history had made it clear that the time had come for a change in State policy. In different reports from the time of its organization, and notably in that of 1885, to which reference is hereby made, this Board had set forth certain evils that had been inflicted upon existing enterprises and upon the

general community by the construction of unnecessary railroads. Such unnecessary railroads, after a brief period of unwholesome competition, had speedily gone into bankruptcy, and had finally become a burden upon the older projects and upon the general community.

It is believed by the Board that the statute of 1892 was intended to protect all interests belonging to the public which might be injuriously affected by ill-considered and unnecessary enterprises. The enactment of such a statute was urged upon the Legislature for a series of years by the Board in its annual reports. In determining the intent and meaning of the section, the recommendations of the Board to the Legislature and the facts which led the Board to make those recommendations must be considered.

In the pending application, the route of the proposed road runs from Akin, a small settlement about three miles west of the Amsterdam station on the New York Central, westerly for about three miles to Tribes Hill on a line substantially parallel with the line of the Central and lying a few hundred feet north of it. There are stations on the New York Central at both Akin and Tribes Hill. From Tribes Hill the proposed line runs northwesterly on a course gradually diverging from the line of the Central, passing at the most distant point within from two to two and one-half miles of the Fonda station of the Central, which station is some five miles west of the Tribes Hill station on the Central. The proposed line then turns northerly and runs to Johnstown, on a course in the immediate neighborhood of and parallel to the lines of the Cayadutta Electric Railroad and the Fonda, Johnstown and Gloversville Railroad, and, in fact, crossing these roads in several places. From Johnstown to Gloversville it follows practically a route already occupied by three existing railroads, viz. the two just mentioned and the Johnstown, Gloversville and Kingsboro Horse Railroad. Considered as a whole, it offers a route from Akin to Gloversville of fourteen miles in length as against an existing route of about sixteen miles by the New York Central to Fonda, and from thence to Gloversville by the Cayadutta Electric road, and a second route of about twenty-one miles by the Central to Fonda, and the Fonda, Johnstown and Gloversville. Conceding that the new road may make a saving of a few miles, this saving is of no consequence, except for passenger traffic. The only manner in which the proposed road would reach the city of Amsterdam would be by a connection with an existing electric street railroad now running to Akin, which from Akin to Amsterdam parallels and is adjacent to the New York Central. The proposed road does not touch any community or inhabited region not now amply supplied with railroad facilities. The evidence is undisputed that the existing roads are abundantly able to transact all business now offered, or that is likely to be offered for many years to come. If the charges made for transacting such business are exorbitant, there is a better method of curing this evil than by inviting superfluous competition. Furthermore, if the existing roads between Fonda and Gloversville are making exorbitant charges, this fact may indicate that there is hardly business enough to support them upon reasonable charges, in which case there is obviously no occasion to build another road in a neighborhood already oversupplied.

The Board is of the opinion and finds that public convenience and necessity do not require the construction of said railroad.

DECISION OF THE GENERAL TERM.

An appeal was taken in the above case by the applicants for the certificate to the General Term, Third Department, and the following de cision, sustaining the action of the Board, was handed down at the May Term of said Court:

Application by the Amsterdam, Johnstown and Gloversville Railroad Company to the General Term of the Supreme Court for the certificate provided by section 59 of chapter 676 of the Laws of 1892, upon a certified copy of all maps and papers on file in the office of the Board of Railroad Commissioners of the State of New York, in the matter of the application of said railroad company for such certificate, said Board of Railroad Commissioners having, by an order made at the capitol, in the city of Albany, on the 20th day of November, 1894, denied the application of said railroad company for such certificate.

Matthew Hale and Andrew J. Nellis for the petitioner.

Hamilton Harris and A. D. L. Baker, for property owners and others, in opposition.

Herrick, J.:

The Amsterdam, Johnstown and Gloversville Railroad Company was incorporated July 12, 1894, pursuant to chapter 565 of the Laws of 1890, and the laws amendatory thereof, for the purpose of constructing a steam railway between Amsterdam, Montgomery County, and Johnstown and Gloversville, Fulton County, a distance of about fourteen miles.

The company has paid to the State Treasurer the taxes upon the capital stock as required by statute.

Section 59 of chapter 676 of the Laws of 1892 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 directors shall cause a copy of the articles of association to be published in one or more newspapers in each county in which the road is proposed to be located, at least once a week for three successive weeks, and shall file satisfactory proof thereof with the Board of Railroad Commissioners, nor until the Board of Railroad Commissioners shall certify that the foregoing conditions have been complied with, and also that public convenience and necessity require the construction of said railroad as proposed in said articles of association. * 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 aforesaid. Such directors may thereupon present the same to a 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."

The corporation so formed complied with the necessary preliminary requirements of this statute, and made application to the Board of Railroad Commissioners for a certificate "that public convenience and necessity require the construction of said railroad."

The said Board of Railroad Commissioners, holding that it did not appear to the Board that "public convenience and necessity" required the construction of said road as proposed in said articles of association

"and as set forth on the maps and profiles filed," denied the application for such certificate.

Whereupon, the directors of said railroad corporation procured certified copies of all maps, papers and evidence presented on said application, and have presented the same to this court, and ask for an order to compel the Board of Railroad Commissioners to issue the certificate applied for.

In The Matter of the New Hamburgh Railroad (76 Hun, 76), where a similar application was made to the General Term of the Supreme Court, after stating the manner in which the application was brought before it under the statute, the court said: "This mode of proceeding, while it grants the court power to review the action of the commissioners, plainly indicates that the court is to treat the application as in the nature of a review of the decision of a subordinate tribunal, and not as it would an original application made to it in the first instance. The burden rests upon the petitioner to show affirmatively that the commissioners erred in their determination, and the commissioners should be credited with some technical knowledge which this court is not presumed to possess."

I concur with that view of the province of this court in these proceedings. Unless the court can see that the decision of the Board of Railroad Commissioners was founded upon erroneous legal principles, or that it proceeded contrary to the clear weight of evidence in arriving at its conclusion upon any question of fact, or that it has abused the discretion vested in it, and has arbitrarily refused to issue the necessary certificate, I do not think that the court should reverse its determination and compel it to issue a certificate.

The Railroad Commissioners are vested with the supervision of the railroads of the State; it is made their special and peculiar duty to investigate and inform themselves as to the condition of existing roads, and as to the needs of the various parts of the State for transportation facilities; and their opinion upon these matters, in regard to which a proper discharge of their official duty requires them to be specially informed, is entitled to respect and consideration.

Upon the hearing before the Railroad Commission cral testimony was given by witnesses sworn both on behalf of and in opposition to the application. Petitions signed by hundreds of the residents of Amsterdam, Gloversville and Johnstown were presented to, and filed with, such Board of Railroad Commissioners.

Some of the petitioners certify that public convenience and necessity require the construction of the proposed road, and others certify that public convenience and necessity do not require the construction of the proposed road.

The Board of Railroad Commissioners, in making its order denying the application, filed a memorandum, which, amongst other things, contains the following statement: "In the pending application the route of the proposed road runs from Akin, a small settlement about three miles west of the Amsterdam station on the New York Central, westerly for about three miles to Tribes Hill, on a line substantially parallel with the line of the Central and lying a few hundred feet north of it. There are stations on the New York Central at both Akin and Tribes Hill. From Tribes Hill the proposed line runs northwesterly on a course gradually diverging from the line of the Central, passing at the most distant point, within