
    The People of the State of New York ex rel. The Depew and Southwestern Railroad Company, Relator, v. The Board of Railroad Commissioners of the State of New York and Others, Respondents. The Terminal Railway of Buffalo (made a party by order of the court).
    Railroads-.— rival applicants for a certificate of public convenience .and necessity,— the Board of Railroad Commissioners may determine to which it shall issue—to review what, a certiorari will not lie — a right of appeal or another proceeding pending is a bar to a certiorari ■—• to review what, a certiorari is proper — the prior filing of a certificate of incorporation creates no. vested right — the corporation is indioate until the commissioners’ certificate is issued to it—rival applications considered together—discretionary powers of the commissioners — burden of proof.
    
    In a proceeding to review by certiorari the action of the Board of Railroad Commissioners, in refusing to issue to The Depew and Southwestern Railroad Company a certificate of public convenience and necessity under section 59 of the Railroad Law (Laws of 1890, chap. 565, as amended by Laws of 1892, chap. 676), and in issuing such certificate to The Terminal Railway of Buffalo, it appeared that the relator filed its articles of association on the loth of June, 1895, and The Terminal Railway of Buffalo filed its articles on the 17th of June, 1895, and that, on the same day, each company applied to the Board of Railroad Commissioners for the certificate in question, each company proposing to build a road between the villages.’of Depew and Blasdell, in the county of Erie, upon practically the same routes and of the same length, the termini and capital stock of each road being the same Each road was of standard gauge and was to he operated by steam power, and each company had complied with the requirements of said section 59.
    Both the applications were heard together, and a certificate was refused to the relator, and one was issued to The Terminal Railway of Buffalo. The hoard of directors of the relator thereupon took proceedings, under section 59, to review the determination of the hoard; these proceedings were pending béfore the General Term of the Supreme Court for the fifth department when the writ of certiorari was granted in this matter hy which it was sought to review:, by certiorari, the determination of the Board of Railroad Commissioners, and to reverse its action in refusing to issue a certificate to the relator, and in issuing • one' to The Terminal Railway of Buffalo, or, at least, to reverse its action in issuing such a certificate to The Terminal Railway of Buffalo.
    
      Held, that under section 59 of the Railroad Law the Board of Railroad Commissioners had jurisdiction to determine, in a case of rival applicants, whether certificates should be issued to both, or a certificate should issue to one only, and, if only to one, to which one;
    That, so far as related to the refusal of the Board of Railroad Commissioners to grant a certificate to the relator, the action of the board could not be reviewed hy certiorari.
    
      Mrst. The remedy for the grievance of the relator, provided by section 59, was adequate, and, having been initiated, excluded the right to a writ of certiorari,
    
      Second. The action of the Board of Railroad Commissioners in refusing to grant a certificate did not finally determine the rights of the parties, as a proceeding to review it was given by the Railroad Law, and, therefore, a writ of certiorari would not lie to review the determination of the board.
    
      Third. The application to the General Term of the fifth department to review the proceedings of the board was a proceeding in the nature of an appeal from the decision, and for that reason a writ of certiorari should not be granted while an appeal was pending in the same matter;
    That, as no provision was made for an appeal from or a review of the determination of the Board of Railroad Commissioners in granting a certificate to a rival applicant, its review might be effected under a writ of certiorari;
    That the Board of Railroad Commissioners had j urisdiction in the proceeding, and had not violated any rule of law to the prejudice of the relator;
    That the relator obtained no vested right by reason of its having first filed its articles of association;
    That, until the certificate in question was issued, the corporation had no right to exercise the “powers conferred by law upon such corporations,” and that until ■ it could exercise its statutory powers it was an inchoate thing;
    That the Board of'Railroad Commissioners properly considered the rival applications at the same time;
    That, while some of the considerations which apparently influenced the Board of Railroad Commissioners in its decision, viz., the parties in interest (both concededly acting in good faith and having ability to build the road), the lines of railroad that were to furnish them business, whether the corporations were organized in New York or other States, and whether their capital stock was owned by residents or non-residents, were improper, there still remained, after their elimination, enough in the case to call for the exercise of their discretion as to which applicant should receive the certificate;
    That the burden was upon the relator to show that the decision of the commissioners was contrary to the clear weight of evidence, and that this did not appear.
    Parker, P. J., dissented.
    
      Certiorari issued out of the Supreme Court and attested on the 26th day of November, 1895, directed to the Board of Railroad Commissioners of the State of New York and to Samuel A. Beardsley, Michael Rickard and Alfred 0. Chapin, as Railroad Commissioners of the State of New York, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings in the final determination of the granting of the application of The Terminal Railway of Buffalo. and awarding a certificate thereon and refusing the application of The ■ Depew and Southwestern Railroad Company and denying it the certificate applied for.
    By an order of the court The Terminal Railway of Buffalo was made a party to the proceeding.
    
      W. S. Bissell, for the relator.
    
      John D. McMahon, for the Board of Railroad Commissioners.
    
      James Fraser Gluck, for The Terminal Railway of Buffalo.
   Herrick, J.:

This is a proceeding by certiorari to review the action of the Board of Railroad Commissioners in refusing to issue to the relator a certificate of public convenience and necessity, under section 59 of the .Railroad Law (Laws of 1890, chap. 565 as amended by Laws of 1892, chap. 676), and in issuing such a certificate to The Terminal Railway of Buffalo.

The relator, The Depew and Southwestern Railroad Company, filed its articles of association on the 15tli of June, 1895. The Terminal Railway of Buffalo filed its articles of association June 17, 1895. The articles of association of the relator were acknowledged June 14,1895, and those of the defendant, The Terminal Railway of Buffalo, were acknowledged June 12, 1895. Both companies made application for the certificate required by section 59 of the Railroad Law, by filing applications therefor with the Board of Railroad Commissioners July 1, 1895. Each of said companies proposed to run a railroad between the villages of Depew and Blasdell in-the county of Erie; the routes are practically the same, and each is ten miles in length.

It appears that a number of trunk lines of railroads come into close proximity with each other at the village of Depew, and that certain other railroads come into proximity with each other at the village ofBlasdell, and' that by the construction of a line of railroad between Depew and Blasdell the interchange of traffic between the group' of roads -coming into proximity to each other at said villages could be made outside of the city of Buffalo, so as to save a. distance of some six miles. .

- The termini of both proposed roads are the same; the amount of capital stock of each is the' same;' each is to be operated by steam power, and each is what is called standard gauge; also that each company has complied with the conditions and requirements of section 59 of the Railroad Law.

The relator upon filing its application for a certificate asked to be heard upon its application in advance of all others applying for a certificate for any- road between the points in question, -and also filed notice of a desire to be heard in opposition to the granting of a certificate to any other company.

The' Board of Railroad Commissioners denied the first request, and resolved to hear both applications on the same day and at the same time. ■ • '

... After such hearing the Board of Railroad Commissioners issued a certificate of -public -convenience and necessity to the defendant, the Terminal Railway of Buffalo, and refused to issue a certificate to the relator. The board of directors of the relator thereupon took' the proceedings provided by section 59 of the Railroad Law, for a review, of the action of the Railroad Commissioners in refusing to grant such certificate, which proceeding for a review was pending in.the General- Term of the Supreme Court for the fifth departs ment at the time the writ of certiorari herein was granted.

By this proceeding it is sought to review the action of the Board of Railroad Commissioners, and to reverse and vacate their action in refusing" to issue a certificate to the relator, and issuing one to the defendant, the Terminal Railway Company of Buffalo, or at least to reverse their action in issuing such certificate to the latter company.

- While the applications were heard together, and although the decision upon one might perhaps have had its. weight in influencing the decision upon the other, as appears to have been the fact in this case, yet-they were separate and distinct proceedings.-

The relator’s grievance is that no certificate of convenience and necessity was granted to it; it can have no cause for grievance because of the granting of a certificate to the defendant, the Terminal Railway Company, except as the granting of such certificate interfered with its own application, upon the ground that public necessity and convenience did not require the construction of two lines of railway between the points in question. <

It has been argued before us that the Railroad Commissioners had no jurisdiction or authority to adjudicate as between the two companies ; that its only function is to determine whether public convenience and necessity require the construction of a railroad between the points mentioned in the articles of association. I think that is. hardly an accurate reading of the section under which the certificate is asked. The portion of the section relating to the granting of the certificate is as follows : “ 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 a/nd necessity require the construction of said railroad as proposed im, said articles of association.”

Under that the Railroad Commissioners have to pass upon the specific application of each company; they are to determine whether “ public convenience and necessity require the construction of said railroad, as proposed in said articles of association ” of the petitioning company; that is something more than determining whether, public necessity and convenience require the construction of a railroa^t between the points mentioned in the articles of association as the proposed termini of their road. It means something more than merely determining whether public convenience and necessity require the- building of any road between the. proposed terminif; ;they' must determine whether public convenience and necessity . require the construction of the specific.road proposed in the articles :of association of the petitioning corporation. -And in determining that question various things are to be taken into consideration by the commissioners, as suggested in. the case of The Amsterdam, Johnstown & Gloversville R. R. Co. (86 Hun, 578). •

■ Among other things, to be taken into consideration is the route that the proposed road is to take between the named termini; it is' evident that the act contemplates the filing of maps of the proposed route, for it speaks of their certifying, copies of all maps filed with them, in order that the same may be presented to the Supreme Court, indicating that the route or line of road, as shown upon the map, is a proper subject for consideration in reaching their decision, ■thus further indicating that the question for them to decide is whether public convenience and necessity require the construction of the proposed road, not any road. If they were only to determine whether a road was required between any given termini, there would be no occasion for maps or profiles, or any consideration of its chanacter, steam or electric, its route or gauge.

It may sometimes happen, as in this case, that two companies apply for a certificate to construct a road between the same points, and it may be that such Railroad Commissioners can properly certify as to each that public convenience and necessity require the construction of its road, .or it may be that they cannot conscientiously certify that public convenience and necessity require the construction of more than one road ; it is a question that must be determined by some one, and the Board of Railroad Commissioners is the only-body or ■ tribunal vested with authority to issue the certificate, in question, and from necessity,, therefore, it has jurisdiction to determine, in the case of conflicting applicants, whether certificates shall be issued to both, or only to one; and, if only to one, which one.

While, as I have before stated, the applications for the certificates in question, made by the relator and by the Terminal Railway Company, were heard together, yet each was a separate and distinct ■proceeding, and they must be so considered by us.

For the redress of the relator’s grievance, a remedy is provided by section 59- of the Railroad Law, by a review of the -proceedings before the Railroad Commissioners, formerly by the G-eneral Term, now by the Appellate Division of the department within which it is proposed to build the road in question. The relator has availed itself of that remedy, and it appears by the return of the Bailroad Commissioners that, since the issuance of the writ herein, the General Term of the Supreme Court for the fifth department has reviewed the proceedings of the Bailroad Commissioners in refusing to grant the relator the certificate applied for, and the prevailing opinion of the court is embodied in such return. (See 92 Hun, 406.)

Whatever my views may be as to the propriety of the decision of the Railroad Commissioners, or of the General Term in affirming it) it would be unbecoming for me to assert that opinion, because this court cannot sit in review of the decision of the General Term of the fifth department, nor can it indirectly reverse that decision in passing upon the writ of certiorari now before it.

A writ of certiorari cannot be issued to review a determination which does not finally determine the . rights of the parties with respect to the matter to be reviewed,” or “ where the determination can be adequately reviewed by an appeal to a court, or to some other body or officer.” (Code Civ. Proc. § 2122, subds. 1, 2.)

It has been held, that it is not a final determination where a resort may be had to some other body, tribunal or officer, for a revision, rehearing or review. (People ex rel. Benedict v. Dennison, 28 Hun, 328; People ex rel. Hill v. Supervisors, 49 id. 476; People ex rel. The Mayor v. Nichols, 79 N. Y. 582.)

' And in a proceeding to procure a certificate of public convenience and necessity, a review of a refusal by the Railroad Commissioners to grant such certificate may be had in the Supreme Couit as I have heretofore stated. The action, then, of the Bailroad Commissioners in refusing to grant such certificate cannot be said to finally determine the rights of the parties, and, therefore, the writ of certiorari will not lie.

Adequate provision has been made for the review of a refusal to issue a certificate, and for that reason the writ of certiorari will not lie. The application to the General Term to review the proceedings of the Bailroad Commissioners is a proceeding in the nature of an appeal from their decision, and it has been held that a writ of certiorari will not be entertained while- an appeal is pending in the same matter. (People ex rel. Ludlum v. Wallace, 4 T. & C. 438; People ex rel. Benedict v. Dennison, 28 Hun, 328.)

When the .writ of certiorari was issued in this case a review of the refusal of1 the Railroad Commissioners to issue a certificate to the relator was pending before -the General Term of the Supreme Court and undecided. . ...

For these reasons I think that this court cannot, in this proceeding, review the action of the Railroad Commissioners in refusing to grant a certificate to the relator.

There is no provision made in the law for an appeal from,, or a review of, the proceedings of the Railroad Commissioners in granting a certificate of public convenience and necessity, and. no other proceeding being authorized by law to review 'their proceedings .in-that respect,, a-proper case is presented to, do , so by certiorari. At common law the office of tile certiorari was to. bring up the record of inferior tribunals to enable the court to determine whether, such tribunals had proceeded within, their jurisdiction. (People ex rel. S. & U. H. R. R. Co. v. Betts, 55 N. T. 600.) : ' . ,

The common law in that respect has been extended in. practicó and by statute, and now, in addition to jurisdictional questions, the c.ourt .is empowered to determine upon certiorari whether, “ in making the determination,, any rule, of law affecting the: rights of the parties thereto has. been violated to the prejudice of the relator.”

“ Whether .there was any competent proof of all the facts necessary to ,be proved in order to authorize the making ■ of the determination.”.

. “If there was such proof, whether there was, upon all the evidence, such a preponderance of proof. against the existence of any of those -facts that the verdict of a jury, affirming the existence thereof, rendered in -any action in the Supreme Court triable by a jury, would.be -set aside by the court as against the weight of. e.vir. evidence:” -. (Code Civ. Proc. § 2140.) :

That the Railroad Commissioners had jurisdiction in the proceeding is conceded. .

Did they, in granting the certificate to the Terminal Railway violate any. rule of- law affecting the rights ,of the parties to the prejudice, of the relator ? , . . • ■. ..

; As ■ I understand, .it, the relator contends .that. there was such a. violation -of law ¡to - its. prejudice, in this, that it,.having completed its organization first, acquired-a right to-have. its., application for a certificate heard and passed upon before that of the Terminal Railway, and that the application of the latter, being heard at the same time and passed upon before that of the relator, the decision upon its application ■ granting to it a certificate operated to. the disadvantage of the relator, because the Railroad Commissioners having decided that only one road was necessary, the issuing of a certificate to the Terminal Railway Company operated to exclude the relator, the assumption being that if the application of the relator had been heard and decided first, it would have received the certificate, and the Terminal Railway Company wotdd have been excluded. I cannot see that that result would necessarily follow ; it might not have received the certificate if there had béen no other applicant, *

The relator, however, contends that it has a vested right to such certificate as against the Terminal Railway Company..

This contention proceeds upon the theory, as stated-by the counsel for the relator, that “On June loth, 189.5,.it (the relator) became vested under the law with the right to construct its -railroad from Depew to Blasdell,' whenever it should appear to the satisfaction- of the railroad commissioners that public, .convenience and necessity required the construction of ■ a railroad between these.-poiiits.” --.

Bo authority was cited to us to sustain this claim, neither have I been able to find any, and I do not think it can be sustained either upon'principle or authority.

I have before called attention to the fact that the-certificate is not to be to the effect that public convenience and necessity require the construction of a railroad, but of the railroad. .proposed- in the articles of association of the petitioning company, and-us proposed in such articles of-association. To say that when .it; appears- that public convenience and necessity require the construction of some road between given termini, that then the persons- first associated togétller to build a. road between, sticli termini are .entitled as of right to have the Railroad Commissioners issue a certificate to them that public convenience and necessity require the construction of the particular railroad -proposed in their articles of association, regardless of the -route proposed, the kind- of a railroad,' whether steam or electric, or whether broad ór narrow gaugé, is hr deprive the "Railroad Commissioners óf a large "part, if -not: all; .of the discretion 'supposed to have been conferred Upon -them. .

But without further discussion of that portion of the statement of the relator’s claim, it does not seem to me that the relator acquired any vested right by filing its articles of association.

The association of a number of persons together does not constitute them a corporation until all the laws necessary to give them corporate powers have been complied with.

The construction of a railroad is not a matter of right; it is a privilege granted by the State, and the right to construct it can only be obtained by complying with the laws of the State regulating the granting of such privileges. *(Matter of A., J. & G. R. R. Co., 86 Hun, 578.)

One of those laws is that before any railroad corporation can exercise any of the powers- conferred by law upon such corporations, or begin the construction of its road, it must secure from the Railroad Commissioners a certificate of the kind hereinbefore described. (§ 59 of chap. 565 of the Laws of 1890, as amended by chap. 676 of the Laws of 1892.)

The statute does not recognize that prior to the granting of the certificate the corporation has any powers; it does not say it shall not exercise its powers, but the “ powers conferred by law- upon such corporations.”

If it can exercise no corporate powers, what rights or privileges has it ?

- Corporate powers and rights go together; one cannot exist without the other. The only rights a corporation has is the ability to exercise certain powers. I cannot conceive of a corporation with no corporate powers. Powers which cannot be exercised are not ■powers. The ability to exercise corporate power constitutes the breath of life to a corporation; without it it cannot exist. Practically, a corporation that has no powers that it can exercise has no power at all, and is not in fact a corporation. It is not a case of suspended animation, but a case where there has, been, as yet, no life.

It seems to me that it is not complete as a corporation until the certificate mentioned has been granted; until that time it is ■ an inchoate thing, and until that time it has no vested rights.

Both applications for certificates having been made at the -same time, I think the Railroad Commissioners had the legal right to, consider them together, without regard to who had filed their articles of association first, and that consequently no “ rule of law affecting the rights of the parties thereto- has been violated to the prejudice of the relator.”

It is conceded that public convenience and necessity require the construction of some railroad between Depew and Blasdell, and the Railroad Commissioners decided that only one railroad was required; while as an original proposition I might be inclined to differ with them in that respect, yet I do not see that we can review their detenmination in that regard here; that was a proper subject for considera^ tion upon the review of their refusal to grant the relator a certificate by the Supreme Court of the fifth department.

Having decided that only one certificate should be issued, it is a matter of no practical importance which case was in form decided first, both being considered together.

Having come to the conclusion that a railroad was required, the next tiling for them to determine was whether the particular road as proposed by either applicant' in its articles of association was required.

In determining that question they had a right, amongst other things, to take into consideration the routes to be taken in connecting the two termini, and the manner of construction of the proposed roads, and if there was any practical differences in these respects between the roads proposed by the parties applying, to consider them in determining to which of them the certificates should be granted.

It seems to me by the findings or opinion of the commission that, in considering the application of the relator, elements were taken into consideration by them that should have n-o effect or weight in determining a question of this kind; as, for instance, “ the parties in interest,” it being conceded that both were acting in good faith and of sufficient ability to build the road, and “ the lines that are to furnish the same ” (i. e., business); whether the corporations were organized in this or other States, or whether the capital stock thereof was owned by residents of this or of an adjoining State; these elements do not appear to have been coúsidered by the General Term in its review of the refusal to' grant the relator a certificate, and, presumably, were not called to its attention, and I am not clear as to whether we have a right to consider them here upon, the question as to whether the certificate was properly awarded to the Terminal Eailway Company,-for it is that certificate we are now .considering.

But, assuming that we have a right to take such alleged errors into consideration, and eliminating them from the case, still I cannot say that the action of the commissioners in refusing to award a certificate to the relator and granting one to the Terminal Eailway Company, was erroneous. '

• The -burden is upon the relator to show error, and with the improperly considered elements eliminated from the case, I Cannot say that the decision of the commissioners would- not or should not have been the same; there would still be enough left in the case to call for-the exercise of their discretion as to which of the two-applicants should receive a certificate.

We cannot consider the evidence as if we were determining the matter'in the -first' instance; some • weight and importance must be attached t-o the decision of the commissioners, and the burden is ■upon-the relator1 to show to us that the decision óf the commissioners was contrary to the clear weight of evidence. (Matter of New Hamburgh R. R., 76 Hun, 76 ; Matter of A., J. & G. R. R. Co., 86 id. 578.)'

? Tó reverse their decision upon certiorari • we must find that there was such a preponderance of evidence adverse, to the conclusion they arrived at, that if it had been the verdict of a jury we would set it aside as against the weight of evidence. (Code Civ. Proc. § 2140, subd. 5.) I can find no such preponderance of evidence.

. My conclusion, therefore, is, that the action of the Board óf Bailroád Commissioners, in refusing to issue to the relator the certificate provided for-in section 59 of the Eailroad Law, cannot be reviewed ■by us upon this proceeding, because their action did not finally •determine the rights of the relator, and because another means is provided by law whereby their decision could be adequately reviewed, and also because, at the time of issuing the writ herein a proceeding to review the action .of the Eailroad Commissioners, in. the manner prescribed by law, was then pending and undecided; -that in the proceedings oh the application for a certificate by the ■Terminal Eailway Company the said commissioners had jurisdictioh "of the proceedings, and jurisdiction to determine whether .it would issue certificates to both applicants, or to only one’, and if to 'one only, which one; that in making their determination they violated no rule of law affecting the rights of the relator to its prejudice; that there was competent proof of the facts necessary to be proved in order to authorize them to make a determination, and that there was not such a preponderance of evidence against their determination as would justify us in setting it aside.

The decision of the Bailroad Commissioners is, therefore, affirmed, and the writ of certiorari quashed, with fifty dollars costs and disbursements to the defendant, The Terminal Bailway of Buffalo.

All concurred, except Parker, P. J'., dissenting.

Parker, P. J. (dissenting) :

The Depew and Southwestern Railroad Company filed its articles of association on June 15, 1895. The Terminal Bailway of Buffalo filed its articles of association on June 17, 1895. Each made application upon the same day to the Board of Bailroad Commissioners for the certificate required by section 59 of the Bailroad'Law. Such board heard the two applications together. Upon the hearing it appeared that each company proposed to build á road from the village of Blasdell to the village of Depew, a distance of about eleven miles, all in the county of Erie, and that the road and its plan of construction, as proposed in the articles of association of each company, was precisely the same. It also appeared beyond all question that public convenience and necessity required the construction of such road, and that each company had duly published a copy of its articles of association, as required by said section 59.

The board refused to giant any certificate to the Depew and Southwestern Railroad Company, and did grant a certificate to the Terminal Railway of Buffalo. The former company thereupon obtained a writ of certiorari to review the legality of such proceedings and determination, and this matter now comes before us upon the return of such writ.'

The board, in .its decision, states that one line can perform all the service that will be required of it, for the present, at least, and the granting of one application must necessarily mean the denial of the other.” It then proceeds to examine the “ equities” off the two companies, and reaches a conclusion in favor of the Terminal Company substantially on two grounds:

First. That it appears from the profile and map filed by the Terminal Eailway, that such company’s road has a.considerable less number of grade crossings of other railroads than the Depew and Southwestern has.

Second. That the Depew and Southwestern railroad will evidently be constructed by capitalists interested in the Lehigh Yalley Railroad Company, a foreign corporation, while the Terminal road would be constructed by capitalists interested in the Hew York Central and Hudson Biver Eailroad Company, and that, therefore, in their judgment, the Hew York capitalists should be favored as against the non-resident and foreign capitalists.

The claim of the relator is, that upon the conceded facts appearing before the board, and accepted by it, the certificate should have been issued to it, instead of to the Terminal Company.

The Terminal Eailway of Buffalo has obtained an order of court, bringing it in as a party to this proceeding, and is now before us, defending the action of the board.

I concede, at the outset of this examination, that if the two companies stood with equal legal, rights before the board, at the time they made the application for a certificate, the relator can obtain,no relief in this proceeding. But the relator claims that it became a duly organized railroad company on June 15, 1895, and that the Terminal Company was not organized until J une 17, 1895 ; that by reason of such priority in organization (inasmuch as the road proposed by both companies is identical) it acquired a prior right to the certificate, if in the judgment of -the commissioners but one road was necessary,

To this it is answered by the Terminal Company that neither company became organized until it had obtained the certificate required by section 59 ; that no association of individuals can become a railroad corporation until it has complied with all the statutory requirements regulating the granting of such privileges, and that one of those requirements is found in said section 59, and is to the effect that, ■before any railroad corporation can exercise any of the powers conferred by law upon such corporations, or begin the construction of its road, it must secure from the Board of Eailroad Commissioners a certificate that public convenience and necessity require the construction of the railroad as proposed in its articles of association; that, therefore, when the applications were made to the board, neither company had perfected its organization, and neither could claim a preference over the other on that ground. In other words, the claim is that, by such section, the Board of Railroad Commissioners is given the power of granting or refusing incorporation as a railroad company to any persons applying for such a franchise.

I do not so construe the provisions of that section, and, aside from the question whether the Legislature has the power, under the Constitution, to devolve such a power upon the board, an examination of the statutes regulating this subject, and a reasonable construction of the requirements of section 59, convince me that no such power was given, and that none such was intended to be given.

By section 2 of the Railroad Law it is providéd that “ Fifteen or more persons may become a corporation for the purpose of building, maintaining and operating a railroad,” etc., by executing, acknowledging and filing a certificate, in which shall be stated,” etc. Section 9 of the General Corporation Law (Chap. 687, Laws of 1892)' provides that such certificate duly filed shall be presumptive evidence of its incorporation.

These two sections seem to contain express provisions as to how a corporation shall be formed, and as to what shall be evidence that it has been formed. The fifteen or more persons become a corporation wpon filing the certificate. Such. certificate cannot be filed until the amount of stock required has been paid in (§ 2), and not until a tax has been paid to the State for the privilege of so doing. (General Corporation Law, § 5.)

Following those sections, providing for the organization of the corporation, section 59 provides that “Ho railroad corporation hereafter formed under the laws of this State shall exercise the ■ powers conferred by law upon such corporation, or begin the construction of its road, until the di/rectors shall cause a copy of the articles of association to be published” as in such section specified, nor until the Board of Railroad Commissioners shall certify that it has been so published, and also “ that public convenience and necessity require the construction of said railroad as proposed in said articles of association.”

. Row, what is the fair purpose and intent of these provisions ? Is it equivalent to saying to the incorporators, although you have paid the tax, and fíléd your certificate, which is the evidence of your '.incorporation, yet you are not a corporation, and have not yet acquired any corporate powers, until, by some process or other, you .shall have sécured from the Board of Railroad Commissioners a certificate that the road you propose is a public necessity ? Clearly not.

The building of railroads where public necessity did not really require them had become too frequent, and the State deemed it wise to restrict It. In order to do so it did not change the existing method of organizing railroad corporations. It was still left free for any association of individuals to become such a corporation under the general laws. But the State, by- the enactment of section 59, restrains the exercise of its corporate powers, unless the corporation, when so formed, can go a step further, and make proof to the satisfaction of the Board of Railroad Commissioners that public convenience requires the construction of its road. If proof of such fact had been required as a-coiidition precedent to the filing of the certificate, then the purpose to withhold all corporate powers, except in those cases where the necessity of the road was made apparent, wpuld be plain ; but such a method seems to be impracticable where corporations are formed only under general laws, for the reason that, if the general laws were made applicable only to such associations and to such enterprises as the Board of Railroad Commissioners might, deem expedient, it would be a practical surrender of legislative powers to such board.

If the granting of corporate rights depends upon the question whether it be expedient, in the particular instance applied for,' then the proofs of expediency must .be made to the Legislature itself, and its judgment alone must determine that question. (People v. Fire Assn. of Philadelphia, 92 N. Y. 311; Barto v. Himrod, 8 id. 483.)

Such may have been the reason why a railroad corporation is allowed to be formed under the general laws, but the exercise of its corporate rights suspended until the fact of its necessity is proven to the State. But whether that is so or not, railroad corporations are still allowed to be formed and to exist,, with corporate powers conferred, upon them, without the fact of such necessity being proved, and section 59 affects only the exercise of such powers.

It is said that one cannot conceive of a corporation that cannot exercise corporate powers, and that until the right to exercise such powers is granted the corporation cannot exist. I think one might conceive of a corporation as existing, although the exercise of its corporate powers was restrained, until the directors should cause its articles of association to he published for three weeks. But concede that the organization of the corporation is not fully completed until it has performed all the conditions required before it can exercise its corporate powers ;■ nevertheless, such fact is of little force in determining the question before us.

The question is, what rights has the organizing company at the time it applies to the board for the necessary certificate. Whether it has, or has not, a complete corporate organization, it has at least so far proceeded towards that condition that certain fixed relations are created between it and the State. By taking the proceedings provided for by section 2 of the Railroad Law, and by paying the tax to the State, it has entered into, a contract with the State' that its corporate powers shall be fully enjoyed in the event that it proves to the satisfaction of the Board of Railroad Commissioners the two facts specified in section 59 ; and it is of no importance whether it appears before such board as a complete corporation or not, so long as its relations with the State secure to it the rights above stated.

The duties of such board and the extent of its powers seem to be clearly indicated in such section. It is to take proof upon two questions only: First. Have the articles of association been published, as required % Second. Is the proposed road a necessity ? Is there anything in those provisions indicating a purpose to give to the board power to grant or refuse to the applicants a franchise ? Evidently not.

They are to furnish to the State evidence of a fact, or rather two facts, which it is deemed necessary should exist before the franchise already granted shall be fully enjoyed; therefore, it is that a certificate is to be issued provided those facts are proved to the satisfaction of the board, and, therefore, it is that the certificate of the board to that effect is made satisfactory evidence to the State of the existence of each of such facts.

Can it be claimed under the provisions of this section that the board may take the proofs, and be fully satisfied that the required publication has been made, and that public convenience demands the construction of the road, and yet refuse to give a certificate, because it understands that the road is to be. built with foreign capital, or because it is informed that another company is soon to ask permission to build the same road, and it prefers to wait and give the certificate to it ?

If the applicant for the certificate has as yet acquired no organization and no rights — if it is'before the board asking from ¿¿-the right to exist, or'to act, there does not seem to be any reason why the board might not refuse, for those reasons, or any other that they might fancy to grant the desired certificate. But I hardly think that anyone, upon reading the section, would conclude from its language that such" a power was conferred upon it.

I conclude, therefore, that any association of individuals that pays the tax, and organizes a railroad corporation as provided by the 2d section of the Railroad Law, does so with .the understanding that, before it can exercise the corporate powers so acquired, it must prove to the satisfaction of the Board of Railroad Oommissioners, or to the Supreme Court, that public convenience requires the construction of its road. Such may be said to be the terms of its charter, so acquired from the State. But I also conclude that it does so with the assurance that if it is able to make such proof, it has the right to require such board to hear it, and to issue a certificate that it has been made.

I do not intend to intimate that the certificate could be claimed unless the proof is entirely satisfactory to the board, or to the Supreme Court upon application made to it under section 59. I concede that the burden of proving that fact is upon the applicant, and that a very large discretion is given to the board in determining whether the road proposed is, or is not, a public necessity, but, being satisfied of that fact, it is as much the duty of the board to issue the certificate as it is to take the proof.

In short, I conclude that section 59 does not devolve upon the Board of Railroad Commissioners "the power to determine whether the general statutes for the formation of railroad corporations shall or shall not apply to- the applicant. It does not invest the board with the power to grant or refuse a franchise. It but imposes upon it the duty to take proof upon two specified facts, and if satisfied óf their existence to issue to the applicant a certificate to that effect.

The matter of the organization of the corporation, and of its right to exist, is a matter entirely between the applicant and the State, and the relation of the board to the subject and its action on the matter is but a means provided by the State for the. benefit of the applicant. The State having required the applicant to make such proof, has in this way provided a method for its so doing, and manifest justice requires that it should be given 'the full benefit of the proof when it is made.

How in the event that two associations of individuals organize under the provisions of the statute two corporations, and each proposes in its articles of association to construct identically the same railroad as the other, and the second is organized after the first, but before the first has made application for the certificate required by section 59, what should be the rule that fixes and controls the relations between themselves and the State ?

In view of the relation which by its incoi’poration is at once created between the organizing company and the State, as above stated, should it not be that the corporation subsequently organized, should be deemed to take its franchise subject to the right of the other to make the proofs and have the certificate ? Does not the State owe that much protection to the corporation first organized ?

Such corporation has as it were applied to the State for a charter to build the railroad. The State has taken the tax for the same and given it the charter, but requires it before proceeding thereunder to prove to the satisfaction of the Bailroad Commissioners that the road it proposes to build is a necessity.

Subsequently the second company applies for a charter to build the same road. May the State give it a charter also and allow its Board of Bailroad Commissioners to refuse a certificate to the first company because it prefers to have the road built by the second.

Certainly under the old system of creating corporations by special charter it would have been a breach of public faith to grant the right to build a road to one company and then annul the charter and give the same franchise to another, and yet such action would not be different in principle and effect from the joint action of the State and board above supposed.

But discussion seems to be unnecessary on this question, for it will hardly be disputed that if upon organizing under the provisions of section 2 a corporation acquires a right to be heard before the Board of Eailroad Commissioners and to a certificate, if it proves to its satisfaction the two facts required by section 59 to exist, such right would be prior and superior to that of a corporation subsequently formed for precisely the same purpose.

It is argued that when two roads are proposed to be built between the same termini by different corporations the Board of Eailroad Commissioners may examine the maps and profiles filed by each and determine which is the better route and road, and base its action upon that ground if it concludes that but one road is necessary.

But whence does the board acquire the authority to examine into those questions? The one question presented to it by section 59 is as to the necessity of the road proposed in the articles of association. Section 2 of the Eailroad Law specifies what the articles shall contain on that subject, and not a word can be found in the statute indicating that the. organization of the corporation, or even its right to exercise its corporate powers, is made to depend upon ,its line or the grades which shall appear upon its map or profile filed before application is made for the certificate. But, on the contrary, the statute expressly provides that both its line and its grades and even its termini may be changed by the corporation after it has begun the construction of the road. (See Railroad Law, §§ 6, 13.)

True, by section 59 the board, in the event that it has refused a certificate, is required to certify to the Supreme Court, on the request of the applicant, a copy of the maps • and papers ” on file before it, but such provision is of no force in determining the question now before us.

Maps might be very convenient, may be used to explain the route of "the proposed road, and yet, so long as the map may be materially changed at any time after work is begun, it evidently cannot be deemed a controlling description-or specification of such road. The method of crossing other railroads is provided for by other sections of-the-Eailroad Law (see § 12, Railroad Law), and hence it seems clear that the line of the road as delineated on the map or profile is riot the road about which the board is to certify, Much less are they authorized to make any particular line, or grade, or mode of crossing another road, a condition of granting the certificate.

I do not dispute but that when it is not possible to build the proposed railroad without crossing at grade many highways and other railroads, the board might take that fact into consideration in determining whether public convenience and necessity required its construction. That fact might be an element in determining the real question submitted to the board by section 59, and the board might conclude that the dangers to be apprehended from such a road would exceed the public advantages to be derived from the same. (See Matter of New Hamburgh R. R. Co., 76 Hun, 76.)

But when it appears that the road can be built so as to avoid suchi grade crossings, and when the directors of the corporation state to-the board their readiness to so build it, as, it appears, was done in this case, the mere fact that the profile is drawn at grade is by no means a material fact in considering the question of its public necessity.

In the case before us the articles of association of each company state substantially as follows : That the kind of road to be built and operated shall be a railroad of standard gauge, to be operated by locomotive steam power, and that it is to be built, maintained and operated from a point at or near the village of Blasdell to a point at: or near the village of Depew, in the State of Hew York. Such a, statement is all that section 2 "requires to be contained in the articles, of association, and whether such a road is or is not required by “public convenience and necessity” was the real question presented for the decision of the board.

Hondo I understand that the board has taken into consideration the question of crossings in determining the necessity of the road which is proposed in the articles of association of each company. The board treats the road proposed as precisely the same, and says, in its decision “ that the granting of one application must necessarily mean the denial of the other.”' They do not, therefore, decide-that the road of the Terminal Company is a necessary road, and that; that of the relator is not. They refer to the fact that the profile of the relator’s road shows more crossings at grade as a reason why they select the other company, but they do not determine that tk& road as proposed by the relator in its articles of association is not. required by “ public convenience and necessity.”

It appears from the record, too plainly for contradiction, that the board did decide that the road- as proposed by the relator was so-required, and the certificate issued to the Terminal Company is based upon that very decision. Although there were two applications to the board there is but one decision.

Both applications are heard, and the “ equities ” (so called by the board) of both companies are considered togétlier, and the decision is that, inasmuch as only one of the proposed roads is necessary, the certificate of necessity must be denied to the relator, because it is issued tp the Terminal Company. Thus the question, whether the prior organization does not give the prior right, is squarely presented by this determination, and it cannot be evaded upon the theory that the board has decided that the relator’s proposed road was not a necessity..

It is said that the question presented in this proceeding was. necessarily involved in the decision made by the General Term in the fifth department, and that, hence, this writ cannot be sustained. I think that the scope of that proceeding could not include the question here presented. That was an application under section 59 to that court for a certificate thr.t its proposed road was a public necessity, made by this relator on the ground that such certificate had been denied by the Board of Eailroad Commissioners. The Terminal Conn pany. was not before that court in those proceedings, and evidently any decision that that court could then make could have no force or effect against it. Thé question whether such Terminal Company’s right to a certificate was not subordinate to the rights which this relator acquired by its prior organization, manifestly could not be adjudicated there. And even if the court had held that it would give a certificate to the relator upon the theory that the one to.the Terminal Company was improperly granted, yet such determination falls far short of the relief asked for here. By such a decision the Terminal Company would have been in no way restrained from proceeding with the construction of its road. In this proceeding the relief sought is the reversal of the whole proceeding before the Board of Railroad Commissioners, which, in effect, would be to deprive the Terminal Company of its certificate, and to lay down a rule for the guidance of the board upon another application being made. The most that the court could have done on that applica? tion was to give this relator a certificate, ■which wquld, in effect, allow both roads to be built. . In this application the question of a prior right is to be settled, and if I am correct, results in giving to the relator the one road alone which public necessity requires. And it is evident that that court did not consider that the question here could be decided there.

In its opinion, which is in the return before us, it is said : 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.”

Thus the court assumed the legality of the proceedings upon which the certificate was issued to the Terminal Company, and denied one to this relator, only on the ground that, two such roads were not necessary. So far as there are any expressions in that opinion not in harmony with the conclusions in this, they seem to be “ obiter ” to the question before the court, and, therefore, not controlling.

Upon the record in this case we are to inquire whether, in making its determination, the board violated any rule of law affecting the rights of the parties before it to the prejudice of the relator. (Code, § 2140, subd. 3.) .

The error complained of is not that the board refused to determine that the road proposed by the relator was a public necessity, but that having decided that it was, it issued the certificate to another company, and, therefore, refused it to the relator. If the refusal to issue the certificate had been solely on the ground that its road was not a necessity, I concede that the relator’s remedy, and its only remedy, would have been to apply to the Supreme Court, under the provisions of section 59, but for the error of which it now complains, no relief could have been obtained iir, such proceeding, and, therefore, it is no bar to this one.

The whole question seems to me to turn upon a single proposition. If, upon its organization under section 2 of the Eailroad Law, the relator acquired a right to make the proof before the board, that public convenience and necessity require the construction of said railroad as proposed in said articles of association,” and to demand a certificate to that effect in the event that it did satisfy the board of that .fact, an error has been committed by the board in the determination which it has made. Such determination ignores entirely such a right on the part of the relator. It proceeds upon the theory that an applicant appears before that board without any rights whatever; that although it might prove to the entire satisfaction of the board all that section 59 requires it to prove, yet the certificate may be denied on some ground not specified in any statute, and of which the applicant could have no anticipation.

Such a theory of the powers and duties of the board under the provisions of section 59 is, in my judgment, altogether too broad.

Under the application of the relator to the board, it should have determined whether the road proposed in its. articles of association was or was not a public necessity without reference to the application of the Terminal Company, and if only one road such as it proposed in such articles was necessary, the. preference should have been given to it, rather than to the Terminal Company. The relator had acquired the right of priority over that company, and the board erred in disregarding it.

For these reasons I think the determination of the board awarding the certificate to the Terminal Company, and refusing it to the elator, should have been annulled, with costs.

Decision of the Railroad Commissioners confirmed, with fifty dollors costs and disbursements to the defendant, The Terminal Railway Company of Buffalo.  