
    In the Matter of the Application of The Empire City Traction Company.
    
      Raib'oad Law —purpose of the certificate of public convenience and necessity to be made by the Board of Railroad Commissioners—a street railroad in New Yorh city not having 'it may bid at a sale of a franchise.
    
    The intention of section 59 of the Railroad Law, making it requisite to the exercise of powers by a railroad corporation, formed after the passage of the act, that the Board of Railroad Commissioners should certify that public con- • venience and necessity require the construction of the proposed railroad, was to prevent the paralleling of routes and the filing of certificates of incorporation by different associations for the same route, and the holding of franchises,by the filing of such certificates, which would have the effect of preventing others, willing to do so, from proceeding with the improvement unless' they made terms with the corporation which had first filed its certificate.
    The- fact, however, that the Board of Railroad Commissioners, refuse to a proposed street railroad company a certificate of public convenience and necessity, does not preven! the railroad company in question from becoming a bidder at a sale had in the city of New York under section 98 of the Railroad Law, pro-, viding that the consent of the local authorities to the construction of a street railroad, in cities containing 1,250,000 inhabitants or more, must contain the: • condition that the right, franchise and privilege will be sold at public auction. . to the bidder who will agree to give the city .the largest percentage per annum-, of the gross receipts of such corporation.
    Application by The Empire City Traction -Company for a certificate that it had complied With the provisions of section 59 of the Railroad Law, and that the public convenience and necessity require the construction of the railroad of said-company as - proposed’-in its articles of-association: ......
    The Board of Railroad Commissioners refused to issue such certificate, but without prejudice to a renewal of the application on the ground that" the company should have first obtained -the ■ con
      -sent of the local authorities as required by section 93 of the Railroad Law.
    
      W. H. Page, Jr., for the applicant.
    
      H. A. Robinson and R. J. Moses, opposed.
   Per Curiam :

On the 30th of December, 1895, the Empire City Traction Company filed its articles of association, the purpose of said association being stated in said articles to be the building, maintaining and operating of a street railroad beginning at the Hudson river, on West One Hundred and Forty-fifth street; running thence easterly, through and along said street, to the Harlem river; and also beginning at the Hudson river on West Ninety-sixth street; running thence easterly, through and along. said street, to its intersection with Columbus avenue; running thence northerly, through and along said Columbus avenue, to its intersection with West Ninety-seventh street; running thence easterly, through and along said. West Ninety-seventh street, to the easterly side of Central Park west; thence easterly, through and along the Transverse road through Central Park, at Ninety-seventh street, to Fifth avenue; thence easterly, through and along East Ninety-seventh street, to its intersection with Madison avenue; thence southerly, through and along Madison avenue, to its intersection with East Ninety-sixth street; thence easterly, through and along East Ninety-sixth street, to its intersection with Third avenue; thence northerly, through and along said Third avenue, to its intersection with East Ninety-ninth street; thence easterly, through and along said East Ninety-ninth street, to the East river; and said company having claimed to have complied with the conditions of section 59 of the Railroad Law,, and that the public convenience and necessity required the construction of the railroad proposed in the articles of association, made application to the Board of Railroad Commissioners, under such section, for a certificate to that effect. This certificate was refused, whereupon, in pursuance of the provisions of said section 59, this application was made to this court.

. Section 59 of the Railroad Law, which was adopted in 1890 (Chap. 565), as amended by chapter 676 of the Laws of 1892, is as follows:

“ § 59. Requisites to exercise of powers of future railroad corporations. 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. The foregoing certificate shall be applied for within six months after the completion of the three weeks’ publication hereinbefore provided for. If a certificate is refused, no further proceedings shall be had before said board, but the application may be renewed after one year from the date of such refusal. Prior to granting or refusing said certificate, the board shall have a right to permit errors, omissions or defects to be supplied and corrected. 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 shall be issued accordingly. Such certificate shall be filed in the office of the Secretary of State, and a copy thereof, certified to be a copy by the Secretary of State or his deputy, shall be evidence of the fact therein stated. Nothing in this section shall prevent any such railroad corporation from causing such examinations and surveys for its proposed railroad to be made, as may be necessary to the selection of the most advantageous route, and for such purpose, by its officers or agents and servants, to enter upon the lands or water of any person, but subject to the responsibility for all damages which shall be done thereto. This section shall not apply to street railroads.”

By chapter 545 of the Laws of 1895, section 59' of the Railroad Law, above, referred to, was amended by striking out the words, “ This section shall not apply to street railroads,” leaving the section otherwise unchanged. And it is in pursuance of this amendment that it becomes necessary for street railroads to make the application to the Railroad Commissioners.

By section 93 of the Railroad Law, it is provided that the consent of the local authorities in cities containing 1,250,000 inhabitants or - more, must contain the condition that the right, franchise and privilege shall be sold at public auction to the bidder who will agree to give the city the largest percentage per annum of the gross receipts of such corporation, etc. This provision applying to the city of New York requires, in ..addition to the consent of the local authorities, that the corporation desiring to build a road within said city shall be the highest bidder at such an auction sale.

It is claimed upon the part of the applicant that in view of the restrictions contained in.section 59 of. the Railroad Law, it cannot become a'bidder at an auction sale without having a, certificate from the Railroad Commissioners. Upon an examination of the law in question, we do not see that any such construction can be put upon the law.'- It is admitted that such a construction would require the commissioners to issue a certificate to every applicant who might file certificates of incorporation for building a railroad, to the building of which the local authoritiés might give their consent. It was manifest' that such was not the intention of the law. It was the intention of the law, beyond doubt, to prevent the paralleling of routes and the filing of certificates of incorporation by divers associations for the same routes, and the holding of franchises by the-filing of such certificates, thereby preventing others willing so to do from proceeding with the improvement without making terms with the corporation first filing its certificate. Such being the evident intention of the act at the time of its adoption when it excluded •street railroads from its operation, the whole construction and intent of the act cannot be.changed by the mere introduction of anew element upon which it is to operate; It seems to us clear that it would be a violation of the duties imposed upon the Railroad.Commissioners for them to issue divers certificates to companies organized for the purpose of building upon the same route. .This would be to frustrate one of the objects of the law, and such a construction should not be placed upon it because of the bringing in of another clause by subsequent legislation, unless the intent to .change the original construction. of. the act is manifest. No such intent can be gathered from the legislation upon this subject. Indeed, it seems to have been the intention to jirevent abuses of this kind in respect to street railroads' which were not remedied by the original statute; and the mere fact.that;in, a; particular locality it may seem .to work inconvenience is a matter for the Legislature to consider, and not for the court to legislate upon. -

We agree with the Railroad Commissioners' in the conclusion at which they have arrived, that there is no incapacity upon the part of the applicant .to bid at the sale of the desired privilege. If there-ig a risk that in consequence of the peculiarities engrafted upon the incorporation of the successful bidder, or that for other reasons consent may be refused by the Railroad Commissioners, that is an infirmity in the law, and should be redressed by futurelegislatibn, as above stated; but such difficulties cannot be obviated by judicial construction.

We are of the opinion, therefore, that the application should be denied.

Present — Tan Brunt, P. J., Williams, Patterson, O’Brien and Ingraham, JJ.

Application denied.  