
    The New York Central and Hudson River Railroad Company, Appellant, v. The Buffalo and Williamsville Electric Railway Company, Respondent.
    
      Street surface railway—extension of its line—what is an extension and what a new road under the guise of an extension—-how determined—when the certificate of public convenience is necessary.
    
    A street railroad company organized in August, 1891, pursuant to the General Railroad Law (Laws of 1890, chap. 565), which in March, 1902, filed a certificate of its intention to extend its line, was. not obliged to obtain the certificate of the Railroad Commissioners mentioned in section 59 of the Railroad Law (added by Laws of 1892, chap. 676, and amd. by Laws of 1895, chap. 545) to the effect that public convenience and a necessity require the construction of the extension.
    It cannot, however, without obtaining the statutory certificate, under the guise of extending its line, construct an entirely new road which will constitute the main body &f its line.
    Thus, where a street railroad company was organized for the purpose of building, and did build, a road running in a northeasterly direction from the northern boundary of the city of Buffalo to the eastern boundary of the village of Williamsville, a distance of five miles, it cannot, without obtaining the statutory certificate, extend its road in an easterly direction from the easterly boundary of the village of Williamsville to the westerly boundary of the city of Rochester, a distance of seventy miles.
    The question whether a proposed addition constitutes an extension of the line of a street railroad company, or the construction of an entirely new rpad, must be determined upon the facts arising in each case.
    Appeal by the plaintiff, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 10th day of July, 1903, upon the decision of the court rendered after a trial at the Erie Special Term dismissing the plaintiff’s complaint upon the merits..
    The defendant, a street surface railroad company, was incorporated pursuant to the Railroad Law (Laws of 1890, chap. 565) in August, 1891. In its certificate of incorporation its projected road was set out as extending from the northerly boundary of the city of Buffalo at its intersection with the Buffalo and Williamsville road, and running northerly and easterly along said road to the easterly boundary of the village of Williamsville, a distance of five miles. Its termini were declared to be the northerly boundary of the city of Buffalo and the easterly boundary of the village of Williams ville. The road was completed in 1893 along the course outlined in its certificate, and has since been in operation.
    In March, 1902, the defendant filed its certificate of intention to extend its railroad from the easterly line of the village of Williams-ville to the westerly boundary of the city of Rochester. It has made maps of its projected route, procured rights of way and expended money preliminary to the construction and in the actual building thereof, and intends to continue the same, making a continuous road from its present Williamsville terminus to the city of Rochester.
    The said company has not obtained or applied to the Board of Railroad Commissioners for its certificate “ that public convenience and a necessity require the construction of said railroad as proposed in said articles of association.” (Railroad Law, § 59, added by Laws of 1892, chap. 676, and amd. by Laws of 1895, chap. 545.) Said company intends to construct and operate its contemplated road without obtaining said certificate, claiming that the same is unnecessary, as it intends merely to extend its existing road. (Railroad Law, § 90, as amd. by Laws of 1895, chap. 933.)
    The plaintiff has been operating a railroad between Buffalo and Rochester for many years, and now has five distinct lines connecting the two cities, the facilities to some one of which’ are readily accessible to every part of the territory to be traversed by the road' of the defendant, and to each line of which it would be a competitor. This action is commenced to restrain the defendant from constructing its said road unless and until the Board of Railroad Commissioners has certified to the convenience and necessity thereof.
    
      Maurice C. Spratt, for the appellant.
    
      George L. Lewis, for the respondent.
   Spring, J.:

When the Legislature (Laws of 1890, chap. 565, § 59, added by Laws of 1892, chap. 676) made it an essential preliminary to the construction of a railroad that the Board of Railroad Commissioners should certify “ that public convenience and necessity ” required its construction, street railroads were in terms exempted from this provision. The exempting clause was not eliminated until the amendment thereto in 1895 (Chap. 545), and hence after the organization of the defendant and the completion of its road described in its certificate of incorporation.

Again, said section provides that “ no railroad corporation hereafter formed ” shall be exempted from the requirement of obtaining the certificate referred to.

By section 90 of the Railroad Law (as amd. by Laws of 1895, chap. 933) a street surface railroad corporation was permitted to extend its lines by complying with certain specific requirements which did not include obtaining the preliminary certificate from the Railroad Commissioners. This law remained unchanged until chapter 226 of the Laws of 1902 (amdg. Railroad Law, § 59a, added by Laws of 1898, chap. 643), which prohibited the extension of a street surface railroad outside of a city or incorporated village by a route which would be practically parallel with an existing street surface railroad until it obtained the certificate of the Board of Railroad Commissioners as to the convenience and necessity therefor.

Two propositions must, therefore, be deemed well settled: First, that a street surface railroad corporation desiring to extend its line is not required to obtain the certificate of the Board of Railroad Commissioners as to its convenience and necessity, except as provided in chapter 226 of the Laws of 1902, which has no application to the- present case. Second, that only a railroad corporation formed after the passage of the act is obliged to obtain this certificate. The defendant was certainly formed before this enactment, and if this proposed extension is in fact an extension, and can be nurtured by the identical company which projected the original five miles of road to Williamsville, then it is not required to apply to the Board of Railroad Commissioners for any preliminary certificate. It is not intimated that the defendant may construct an entirely new surface road without the consent of the Board of Railroad Commissioners. It was organized to construct a road from Buffalo to Williamsville, and within its certificate it cannot construct a road from Loclcport to Horneilsville, or from Warsaw to Watertown, or between any other two points entirely separate and disconnected from its existing line unless permitted to do so by the proper authority. The only reason it may be able to avoid the necessity of applying to the Board of Railroad Commissioners is upon the ground that the proposed line from Williamsville to Rochester is an extension of its present road, and that a continuous line will thereby be laid from the Buffalo city line to the easterly terminus of the extended line.

It is an extension in that the two parts would he joined, making a continuous whole; but in construing a statute with the wide scope of the one requiring the certificate of the Board of Railroad Commissioners to precede the construction of a railroad, a practical and sensible interpretation, rather than a metaphysically literal one, should be given to it.. The creation of the Board of Railroad Commissioners was a new departure in the' State’s regulation of the building of railroads, and the aim was in" a large measure to relegate the matter to that body. The Legislature was influenced to adopt this new system to restrain the construction of useless railroads, not alone for the purpose of protecting railroads already in operation, but also to check individuals from embarking in enterprises fraught with financial disaster. (New York Central & H. R. R. R. Co. v. Auburn Interurban Electric R. R. Co., 178 N. Y.,75 ; Matter of Amsterdam, J. & G. R. R. Co., 86 Hun, 578, 584.)

The same purpose which induced the original enactment impelled its application to street surface railroads. We have, therefore, a policy adopted by the Legislature pertaining to the construction of railroads over the State, and" the courts should give full effect to it in the light of the purpose which inspired it. As was said in People ex rel. Wood v. Lacombe (99 N. Y. 43, at p. 49): “In the interpretation of statutes, the great principle which is to control is the intention of the Legislature in passing the same, which intention is to be ascertained from the cause or necessity of making the statute as well as other circumstances. A strict and literal interpretation is" not always to be adhered to, and where the case is brought within the intention of the makers of the statute it is within the statute, although by a technical interpretation it is not within its letter. It is the spirit and purpose of a statute which are to be regarded in its interpretation, and if these find fair expression in the statute it should be so construed as to carry out the legislative intent even although such construction, is contrary to the literal meaning of some provisions of the statute. A reasonable construction should be adopted in all cases where there is a doubt or uncertainty in regard to the intention of the lawmakers.”

The rule is thus succinctly stated in the American and English Encyclopaedia of Law (Vol. 26 [2d ed.], 602); The intention of the Legislature and the object aimed at, being the fundamental inquiry in judicial construction, are to control thé literal interpretation of particular language in a statute, and language capable of more than one meaning is to be taken in that sense which will harmonize with such intention and object, and effect the purpose of the enactment.”

The privilege accorded to a street surface railroad corporation by section 90 of the Railroad Law (as amd. supra) “ to extend its road or to construct branches thereof” without application to the Board of Railroad Commissioners, must be reasonably construed having in view the general policy of the State which submits to that body the determination of the convenience and necessity of a -new road. If the branch proposed to be added to the main trunk will in fact be the corpus itself, if the contemplated extension really will compose the main body, then it" will be a parody on the statute to permit the branch or extension to be added without the permission of the Railroad Commissioners. A corporation organized to construct and which is operating a street surface railroad a mile in length ought not to be permitted to add 100 miles without the consent, of the Railroad Commissioners on the pretext that the construction is a mere extension of the main line. The term " extension ” conveys to the mind an enlargement of the main body, the addition of something of less import than that to which it is attached. If the contrary interpretation is to prevail then it was an idle ceremony to brivig street surface roads within the compass of the Board of Railroad Commissioners for a corporation desiring to cross the State with a street surface:- railroad may purchase an insignificant road and attach its proposed'-line to it.

It is suggested by the counsel for the respondent that the defendant could accomplish its purpose by adding a few miles of the road each year and eventually cover the entire- distance to Rochester. That may be true. (New York Central & H. R. R. R. Co. v. Auburn Interurban Electric R. R. Co., supra, 82.) Ho exact rule like the rate of interest may he laid down applicable to every case. A proposed improvement in one instance may be clearly construed an extension and in another it may be equally clear that the extension is intended in effect to be a new road. If the contention of the respondent is correct then it can readily, upon filing the certificate of intention, extend its road to New York.

We appreciate that it often may be very difficult to determine whether a contemplated addition to an existing road is an extension within the scope of the statute or is a new road, thus requiring the preliminary certificate of the Board of Railroad Commissioners. Unless there is additional legislation defining what constitutes an extension, the courts must dispose of each case as it is presented on its own merits. In that disposition the policy of the Legislature to vest in one tribunal the authority to determine as to the propriety of constructing a road will be a pregnant circumstance. That is, the Legislature in its wisdom having vested a board with this power, the courts in their decisions should proceed as far as possible in harmony with the legislative intent, especially as the tendency is to enlarge rather than to restrict the powers of that body.

It may be that the present line will be beneficial for the inhabitants to whom it will be available. It may be a public convenience, and a necessity, and also may prove a judicious financial investment. It may be that the plaintiff is merely an obstructionist in the prosecution of this action. Those are matters, however, not within the province of this court to pass upon. The Legislature has fixed an arbitrary standard which must govern if a new street-surface road is to be constructed, and if this proposed extension is a new road the defendant must conform to that rule.

By section 59a of the Railroad Law (added by Laws of 1898, chap. 643, and amd. by Laws of 1902, chap. 226) the Board of Railroad Commissioners, upon an application for a,,certificate to build a proposed street surface railroad, may certify as to the convenience and necessity of a part of the projected line. If the position, now-asserted is to prevail, a convenient method, exists to circuinvent the decision of the commissioners to prevent the construction of, a part of the line desired. The part. which meets the approval of the commissioners may be constructed, and thereafter the road may be extended the entire length although the extension may be the substantial part of the proposed line and has already received the disapproval of the board which is by training peculiarly well qualified to determine as to the necessity for constructing the same.

A more palpable attempt to build a new road upon the pretense that it is an extension can hardly be conceived than the one up for review. The original line was only five miles long. Its termini were definitely given. Its course was northeasterly. • It had been in operation since 1893. Its capital stock was $50,000. Row the company propose to jut off easterly seventy miles, involving a length of road and an additional outlay wholly disproportionate to that originally contemplated.

It is urged that the case of New York Central & H. R. R. R. Co. v. Auburn Interurban Electric R. R. Co. (178 N. Y. 75, supra) is conclusive in favor of the defendant. We do not so interpret that case. The defendant operated a street surface railroad from Auburn to Skaneateles and filed a certificate of intention to extend the same to Marcellus, a distance of six miles. The trial court held this was an extension, and its decision was affirmed by the Court of Appeals. The facts in that case are not at all parallel with those here involved. The addition of six miles might very well be held to be within the scope of the statute, while the joining of seventy miles to a line of five miles would nut be controlled by the holding. If the proposed extension there considered had been westerly from Auburn to Buffalo and southerly from Auburn to Binghamton we assume the court would not have decided that it was an extension within the meaning of the statute referred to. Such a construction would strip the Board of Railroad Commissioners of the very substance of its power and usefulness in passing upon the building of street surface railroads, for it would permit the projection of existing lines all over the State without let or hindrance from that body. If the act committing the construction of street surface railroads to the Board of Railroad Commissioners is to be nullified it would be better that it be accomplished by a repealing act of the Legislature rather than it be emasculated by the courts under the guise of declaring a new road to be an extension, because, forsooth, it happens to use a few miles of an existing line.

The second proposition urged by the respondent, that there is no necessity for the certificate from the Board of Railroad Commissioners for the reason that it is -not a corporation formed after the passage of the act, is in a large measure covered by the discussion already had.

If the building of the line to Rochester is a new road instead of an extension, the company has no authority to construct it under its present certificate'; The respondent was organized to build a definite street surface railroad and may add what is naturally an adjunct or a tributary of the original road by virtue of section 90 of the Railroad Law (as amd. supra). The prohibition in section 59 of the Railroad Law (as amd. supra) that “ no railroad corporation hereafter formed * * * shall exercise the powers conferred by 'law upon such corporations ” until the certifieate of the Board of Railroad Commissioners has been procured applies to every railroad corporation. The interdiction prevents- any construction at all until the requisites contained in the section have been complied with. The respondent because of that provision would be debarred from making any extension except for section 90 already adverted to.

. The corporation in existence at the time of the passage of chapter 2.26 of the Laws of 1902, transferring the authority to the Board of Railroad Commissioners, may complete the road set out in its articles of association pursuant to the law then in force. It could not under that certificate or simply by retaining its original name build a new road in defiance of the Board of Railroad Commissioners on the pretext that it was an existing corporation when the board was first given authority in such cases. For instance, a railroad corporation then organized to build and operate-a steam railroad from Utica to Cortland and called- the Utica and Cortland Railroad Company might not ten years later extend its line to New York and to Oswego by virtue of its original certificate and name and vindicate its course by reason of its priority to the creation of the Board of Railroad Commissioners. Such action would be too palpable a violation of section 59 of the Railroad Law (as amd. supra).

We accordingly start with the general proposition that no railroad corporation hereafter formed may begin the construction of its road until it has secured the necessary certificate .of the Board of Railroad Commissioners. Then we have the exception in section 90 of the Railroad Law (as amd. supra) relating wholly to street surface roads setting forth the essentials to enable a corporation of that kind to make an extension and which does not include the application to the Board of Railroad Commissioners. In the final analysis, therefore, the pivot on which the respondent’s whole contention turns is whether the proposed extension is in fact an extension within the contemplation of section 90 of the Railroad Law (as amd. supra) or a new road, and our views on that subject have already been sufficiently elaborated.

The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

All concurred.

Judgment reversed and new trial ordered, with costs to the appellant to abide event upon questions of law only, the facts having been examined and no error found therein.  