
    People v. Ulster & D. R. Co.
    
      (Supreme Court, General Term, Third Department.
    
    December 12,1890.)
    1. Constitutional Law—Judicial Powers—Assumption and Delegation.
    Act N. Y. 1874, c. 430, providing for the reorganization oí railroads sold under mortgage, was amended by Laws 1889, c. 236, which provided that the act of 1874 should not be construed to compel a corporation organized under the act to extend its road beyond the portion constructed at the time it acquired title, provided the board of railroad commissioners should certify that the public interests do not require such extension, and that such certificate should be a bar to any proceedings to compel the corporation to make such extension, or to annul its existence for failure to do so, and should be final and conclusive in all courts and proceedings. Meld, that the act of 1889 was not unconstitutional, either as a statute assuming judicial power or as giving judicial power to the board of railroad commissioners; and the action of that board in making such certificate is not reviewable by the courts.
    "-2. Costs—Additional Allowance.
    The valuation on which taxes were paid by a corporation, under Laws N. Y. 1881, c. 361, which imposes a tax on corporate franchises, is not evidence of the value of the franchise as a basis for an allowance, in addition to costs, on the value of the subject-matter involved in an action to annul the charter.
    Appeals from circuit court, Albany county.
    Action in the name of the people of the state, brought by the attorney general on the application of the town of Harpersfield, against the Ulster & Delaware Railroad Company, to annul the corporate charter of defendant. Plaintiff appeals from a judgment for defendant entered on a verdict rendered by •direction of the court, and also from an order granting an allowance to defendant in addition to costs. For opinion on defendant’s motion for leave to ¡file supplemental answer, see 8 N. Y. Supp. 149.
    Argued before Learned, P. J., and Landon and Mayham, JJ.
    
      Charles F. Tabor, Atty. Gen., (E. Countryman, of counsel,) for appellant. Bur rill, Zabriskie & Burrill, (J. E. Burrill, George Zabriskie, and Edwin Young, of counsel,) for respondent.
   Learned, P. J.

We have nothing to do in this case with the alleged bad faith •or breach of contract in the dealings of the Rondout & Osyvego Railroad with-the town of Harpersfield. That town is not the plaintiff. The only question ■is whether the people have a right to annul the charter of the Ulster & Delaware Railroad' Company for the failure to construct a certain part of the route originally laid out. We do not consider it necessary to decide the question whether the defendant, taking title under the foreclosure of a mortgage ■made by the Rondout & Oswego Railroad Company, (or New York, Kingston ■& Syracuse Railroad Company,) and organizing under chapter 430 of the Laws of 1874, became bound to complete the road as originally laid out. We ■have great doubt whether it came under any such liability. But, as we think there is a.conclusive defense to- this action, we deem it best to pass the question above mentioned. Chapter 236 of the Laws of 1889 adds a new section to chapter 430 of the Laws of 1874, being the reorganization act. This declares that nothing therein contained shall be construed to compel a corporation organized under that act to extend its road beyond the portion thereof constructed at the time the corporation acquired title, provided the board of railroad commissioners should certify that the public interests did not require sucli extension. It provided that, if such certificate should be made, the corporation should not be deemed to have incurred any obligation to extend its road; and that such certificate should be a bar to any proceedings to compel it to make such extension, or to annul its existence for failure so to do; and should be final and conclusive in all courts and proceedings whatever. Under this statute, the defendant petitioned the railroad commissioners. Notice of the prosecuting the petition was published, and was served on the town of Harpersfield, which had been the active party in instigating the present action. On the 24th of June, 1890, the board made and filed its. certificate in compliance with said act. This is set up by defendant in" an amended answer. Now it is plain that this certificate is a bar to this action, unless the plaintiff can show some reason why the statute does not. apply, or why it should be held unconstitutional or void. The plaintiff insists that the statute is void, because it assumes judicial power. We do. not think that the language that the reorganization act “should not be construed to compel a corporation” to do a certain thing is an assumption of judicial power; it is simply a mode of stating the meaning of the legislature in making the amendment. But the further language that the certificate, when made, should be a bar to proceedings like the present, is certainly not open to-the objection that it assumes judicial power in construing statutes.

Further, the plaintiff insists that this act is unconstitutional, in giving judicial power to the board of railroad commissioners. We do not see that judicial power is given to the board. Administrative duties often require an administrative officer to decide on the proper course of action, and for that, purpose to ascertain what are the facts in the matter before him. But he is. not therefore exercising judicial functions. In the present case, the people-have the right to annul the charter, if they show good cause. The legislature-has the right, in behalf of the people, to refuse to annul the. charter, even if there be good cause. And it has a right to say that the charter shall not be annulled, and that the corporation shall be relieved from any obligation which it might have owed to the state to do a certain act. Such being the right of the legislature, we see no reason why it may not authorize a board of its administrative officers to inquire what the public interests demand in that respect, and to decide whether the public interests do, or do not, require the corporation to do a certain act. The only parties are the people, speaking through the legislature on the one hand, and the corporation on the other. We have no occasion to say, if there was a controversy between the corporation on-the one side, and some individual on the other, whether the legislature could compel the submission of that controversy to this board. That does not arise-here. It is only the state itself which says: “If our board of railroad commissioners certify that the public interests do not require the building of a certain piece of road, then it need not be built.” Very possibly the legislature could not declare that a certificate of the railroad commissioners should be a bar to ari action by one private ¡individual against another. But it is. certainly competent for the state to (surrender any right of action which it may have. It could declare that no action on its behalf for the annulling of a charter should be further prosecuted. So here the legislature has declared that, if the board of railroad commissioners give a certificate, then the state will not further prosecute its action. The legislature is certainly competent to stop a litigation which is prosecuted on behalf of the state. There-is no interference with the judicial power when a plaintiff declines further to prosecute his case. And this statute by which the legislature says that a certain certificate of state officers shall put an end to a state prosecution, does not interfere with any judicial authority. There is no need of a discussion about the power of the legislature to enact laws which shall take effect upon certain conditions, or upon its power to delegate legislative functions. For there is nothing in this statute but a waiver of a forfeiture, or, in other words, a refusal to annul a charter. The legislature authorizes certain boards to convey the property of the state, as, for instance, land under water. Cannot it authorize another board to give a certificate, which shall practically waive a forfeiture, which no one but the state could enforce? The state has frequently by statute extended the time within which a. corporation was to build a road. This was a waiver of the forfeiture for not building, and a statute of that kind would be a bar to an action for forfeiture, if such an action should be commenced, or if such an action were pending. The state is not bound to enforce a forfeiture, and if it waives a forfeiture, no private individual or body can object. It seems to us that the error on the part of the plaintiff’s counsel is in the application of very sound and important doctrines. If this were a controversy between two private individuals.it might well be doubted whether the legislature could enact that a certificate of railroad commissioners should be a bar. But the real meaning and plain effect of the statute is simply that the state will not continue a litigation when its own board of officers have said that the public interests do not require it. The attorney general stands in the strange position of insisting upon prosecuting an action for the state, which the state has said shall be barred. Of course this is explained by the not unusual circumstance that the attorney general allows some other party to use his name of office. But that other party, the town of Harpersfield, has no right to enforce a forfeiture which the state has waived, or to seek to annul a charter on grounds which the state has declared shall not be a cause for such annulling.

The plaintiff further insists that the reasons given by the board of railroad commissioners for its certificate are not satisfactory. It was not bound to give any reasons, though this was a very proper course. But it is not in our power to review the action of the board, even if we thought its reasons improper or insufficient, which we do not. It is enough that the statute makes the certificate, not the reasons, conclusive and a bar. The judgment of the learned justice is correct, and should be affirmed, with costs.

Another question is presented by the appeal from the order granting an extra allowance. There is no doubt that the case is one in which an extra allowance was proper. But the plaintiff urges that there was no proof of the value of the corporate franchise, and that only upon that value could the allowance be based. Conaughty v. Bank, 92 N. Y. 401. The defendant, to show the value of this franchise, showed the taxes which it had paid for several years, under the statutes. Chapter 361, Laws 1881. The defendant claims that these statutes impose a tax on corporate franchises, and not on corporate property, (People v. Insurance Co., 92 N. Y. 328;) that hence the valuation on which the tax is assessed, must be a measure for the franchise taxed. Now, the statute may impose a tax on an amount which shall greatly exceed the real value of the franchise. The mode in which a corporation is assessed under these statutes, merely determines the amount at which, for the purpose of taxation, its franchise shall be estimated. We think that this assessment does not bind the state as to the actual value of the franchise, when such value had to be ascertained on the motion. Hot only does it not bind the state, but we do not see that it is evidence. The question before the learned justice was, what was the value involved? that is, what was the value of the franchise? And upon that point these several taxations of the defendant do not seem to us to be evidence. We think therefore that the order should be reversed only on the ground that the value of the franchise was not shown. Judgment affirmed with costs; order of extra allowance reversed on the ground that the value of the franchise was not shown. All concur.  