
    In the Matter of the Application of the Auburn and Western Railway Company for a Certificate Required, by Section 59 of the Railroad Law.
    
      Board of Railroad Commissioners — refusal by, of the certificate required by section 59 of the Railroad Law — what facts justify it.
    
    Upon an application to the Appellate Division to review the action of the Board of Railroad Commissioners in refusing to grant the certificate required by section 59 of the Railroad Law (Laws of 1890, chap. 565), it appeared that the railroad in question was designed to extend from the city of Auburn to the town of Seneca Falls, and, when completed, to form part of an electric railroad running from Auburn to Geneva, a distance of about twenty-five miles; that such road would parallel the New York Central and Hudson River railroad for the entire distance between Auburn and Geneva, and that it would also parallel the Lehigh Valley railroad from Auburn to a point on Cayuga lake midway between the villages of Cayuga and Union Springs, and would necessarily cross each of these roads at grade between Auburn and Cayuga; that the entire population of the territory adjoining the route of the proposed road from Auburn to its western terminus, including the hamlet of Aurelius and the village of Cayuga, did not exceed 3,000, while the total number of passengers carried between Auburn and Cayuga on the New York Central and Hudson River railroad in the year 1896 was 36,460, and between Auburn and Aurelius 8,644, or a total of about 80,000, and that only §11,000 of the capital stock of §300,000 had been subscribed, and that of this amount, one person had subscribed $9,600.
    
      Held, that the refusal of the Board of Railroad Commissioners to grant such certificate was a proper exercise of the discretionary power conferred upon it, and that for that reason the ‘Appellate Division would refuse the certificate asked for.
    Application by the Auburn and Western Railway Company to the Appellate Division of the Supreme Court for the certificate required by section 59 of the General Railroad Law (Laws of 1890, chap. 565), made upon a certified copy of all maps and papers filed in the ofíiée of the Board of Railroad Commissioners of the State of New York, on the application to that Board for such certificate, which application was denied by an order made at the Capitol in the city of' Albany on the 8th day of June, 1897.
    
      William Nottingham, for the applicant.
    
      Albert H. Harris, for the contestant, the New York Central and Hudson River Railroad Company.
   Per Curiam :

The denial by the Board of Railroad Commissioners of the petitioner’s application was the exercise of a power largely discretionary in its character which the Legislature of this State had vested in a body created for a special purpose and composed of men peculiarly qualified by experience to deal with the vexations problems arising out of the ever-increasing demand for better and more adequate means of transportation.

And while this court has been expressly empowered to review the action of the Commissioners in refusing to grant such a certificate as was asked for in this case, yet it has held in every instance where a review has been had, that for the reason above stated their determination must be treated in the same manner as that of any other subordinate judicial tribunal whose judgments are subject to review, which is equivalent to saying that their conclusion must be respected and sustained unless it be made clearly and affirmatively to appear that it was founded upon erroneous legal principles, or that in reaching the same the Commissioners proceeded contrary to the clear weight of evidence; or that they abused the discretion vested in them and arbitrarily refused to issue the certificate asked for. (Matter of New Hamburgh & Poughkeepsie Connecting R. R. Co., 76 Hun, 76 ; Matter of Amsterdam, J. & G. R. R. Co., 86 id. 578 ; Matter of Depew & S. W. R. R. Co., 92 id. 406.)

In the light of the rule just adverted to we have carefully examined the record in this proceeding with a view to determining to what extent the petitioner has sustained the burden resting upon it of showing affirmatively that the determination of the Commissioners is in any respect erroneous.

From this record it appears that the petitioning corporation was organized in July, 1896, under the name of the Auburn and Western Railway Company, for the purpose of constructing and operating by electricity a street surface railroad, which should extend from the west line of the city of Auburn, in the county of Cayuga, to the east line of the town of Seneca Falls, in the county of Seneca. It further appears that it was designed by the incorporators that when thus constructed the road should connect with the Auburn City Railroad Company at its eastern terminus, and at its western terminus with another surface railroad running from Cayuga lake to, the city of Geneva, in Ontario county, thus forming a continuous line of road operated by the trolley system from Auburn to Geneva, a distance of about twenty-five miles.

The capital stock of the petitioner’s company is $300,000, of which sum $11,000 only had been subscribed when this proceeding was commenced, and of this amount Mr. Clifford JD. Beebe, of Syracuse, appears to be the owner of ninety-six shares, the par value of which is $9,600. It is also made to appear that if the petitioner’s road is constructed upon the route contemplated, it will, in connection with the Geneva road, parallel that portion of the New York Central and Hudson River railroad, known as the Auburn Branch,” for the entire distance between Auburn and Geneva; that it will also parallel a branch of the Lehigh Valley railroad from Auburn to a point on Cayuga lake midway between the villages of Cayuga and Union Springs, and that it will necessarily cross each of these roads at grade between Auburn and Cayuga.

Notwithstanding the facilities for transportation which these two lines of railroad afford — and it appears that there are thirteen passenger trains passing over the New York Central and Hudson River railroad and six over the Lehigh Valley railroad daily — it is insisted that they are wholly inadequate, and that, consequently, public convenience and necessity require the completion of the competing line which the petitioner proposes to construct.

To support this contention, witnesses were called from the city of Auburn and from the various localities and villages intersected by the proposed road and its connections, all of whom testified unhesitatingly that in their opinion it would prove a great convenience to the public if better railroad facilities were furnished. This, doubtless, was not only the expression of an honest opinion, but it was one which to a certain extent was founded upon fact. To illustrate: One gentleman, residing in Auburn, said that if the road were in operation it would enable him to reach his cottage upon the shore of Cayuga lake in the afternoon and return in the morning before business hours, which he could not do under existing circumstances. Another, residing -at Aurelius, a small hamlet about five miles west of Auburn, said he would be glad to avail himself of the proposed road as a means of sending his children to school at Auburn ; while another, residing at Cayuga, thought it would afford him a better opportunity of transacting business at Auburn than was the case at present.

To each of these witnesses, as well as to many others similarly situated, it would undoubtedly prove more convenient if they could be furnished with additional facilities for transportation. But what would prove convenient to them personally might fall far short of amounting to a public necessity; and over and against the reasons they give for the opinions which they expressed, stand out certain pregnant facts concerning which there is happily no controversy whatever. To one or two of these brief allusion will be made.

The city of Auburn contains a population of about 30,000 souls, and the entire population of the territory adjoining the route of this proposed road, from Auburn to its western terminus, including the hamlet of Aurelius and the village of Cayuga, does not exceed 2,000.

It appears that, during the year 1896, the total number of passengers carried between Auburn and Cayuga on the New York Central and Hudson River railroad was 26,460, and between Auburn and Aurelius by the same road 3,644, or a total of about 30,000 persons.. Certainly this limited amount of patronage does not lend encouragement to persons who are asked to invest their means in the new enterprise, especially when it is distributed between two or more competing lines. But it is said that there is a pleasure resort at the western terminus of the proposed road which draws many people to it during the summer season, and that if the road were available for that purpose many large excursion parties might be induced to visit the spot. Summer resorts, however, are, at the best, too ephemeral to furnish a satisfactory basis for declaring a railroad which will accommodate its patrons, by reason of that fact, a public necessity; and the patronage from this source would necessarily be limited to a small portion of the year. Again, we are told that increased facilities for transportation invariably result in increased business, and that the history of nearly every electric road demonstrates that the mere fact of its existence has a tendency to draw to it patronage. This suggestion is not altogether without merit, and it is perhaps not unreasonable to assume that if the projected road were completed along the proposed route and were well equipped and properly managed, very many more people would use it as a means of conveyance than now use the steam railroads running along virtually the same route. But with this much conceded, the fact still remains that under the most favorable circumstances which can possibly be imagined the population of the- district to be traversed by the petitioner’s road is insufficient to sustain these different lines, and the probability is that if the local patronage thereof were to be distributed between the three it would be found that no profit resulted therefrom to either.

It was said by the learned justice who wrote the opinion in the - case of Amsterdam, J. & G. R. R. Co. (supra) that it was the evident purpose of the Legislature in adopting the section under which this proceeding was brought to restrict the building of roads not actually needed, in order to protect not only existing railroads, but also citizens from investing in alluring but profitless enterprises.” And one has but to examine, in the most cursory manner, the reported cases in this State to discover that not a few of them arise out of disappointed expectations which furnish the principal foundation for enterprises of this character, and which, when first undertaken, were equally as alluring and full of promise to the investors as the one we are now considering.

It is the undoubted policy of the law to foster and encourage every legitimate enterprise which is at all likely to prove advantageous to the general public; but, at the same time, it is the obvious duty of those upon whom the responsibility rests to exercise a wise discretion in these matters, to the end that one enterprise, however alluring it may seem, shall not be aided and encouraged at the expense of another which is, perhaps, equally deserving.

In the present instance this discretionary power has been exercised by the Railroad Commissioners in a manner to commend itself to our approval, and for that reason we feel constrained to refuse the certificate asked for from this court.

All concurred, except Follett and Ward, JJ., not voting.

Application for a certificate denied, with costs.  