
    In the Matter of the Petition of The New York Central And Hudson River Railroad Company, Respondent, under Section 62 of the Railroad Law, as to the Elimination of Grade Crossings in the Village of Ossining. The President and Trustees of the Village of Ossining, Appellant.
    Second Department,
    March 4, 1910.
    Public Service Commission — elimination of grade crossings — act is constitutional liability of village for portion of cost — intention of railroad to lay additional tracks immaterial — powers of Commission!
    Sections 62-66 of the Railroad Law, authorizing the Public Service Commission to compel a railroad to eliminate dangerous grade crossings and imposing a proportion- of the cost upon the State and the village wherein the: Change is made,-, do not appropriate public moneys for local or private purposes so. as to require, the assent of two-thirds of the members elected to each branch of the Legislature under section 20. of article 8 of the State Constitution. •
    This, because said act makes no appropriation whatever, hut merely authorizes an appropriation to be made annually by the Legislature in order to pay the share of the State. Only the bill actually making such appropriation requires the assent of two-thirds of the members- of the Legislature.
    Nor are said -sections obnoxious to sections 9 and 10 of article 8 of the State Constitution prohibiting the State or any municipal subdivision thereof from' giving money in aid of a corporation, but, on the contrary, are a valid exercise of the police power.
    A village may he charged -with its-statutory proportion of the cost of eliminating " the crossings over existing - tracks, although the railroad-under.powers con-- .. ferred by i,ts charter proposes to lay additional tracks on its right of way and to adopt the use of electricity as a motive power, if the cost of crossing the new tracks is to be borne wholly by the railroad:
    The determination of the manner in which dangerous grade crossings shall be eliminated is wholly within the power of the Public Service Commission subject only .to judicial review, The Commissioners have practically the saíne powers as commissioners in condemnation proceedings; they may view the existing conditions and are judges’ of the law and the facts..
    Appeal by the President and Trustees of the Village of Ossining, from a determination and order of the Public Service Commission of the State of New; York, second district, bearing date the 17th day of June, 1909, and filed in the office of ■ said Commission, eliminating grade- crossings in the village of Ossining.
    
      The proceeding was instituted by the respondent, and the subsequent proceedings were had, under the provisions of section 62 of the Eailroad Law. (See Laws of 1890, chap. 565, § 62, added by Laws of 1897, chap. 754, and amd. by Laws of 1899, chap. 359. See, also, Laws of 1907, chap. 429, §§ 80, 84-86, 89.)
    
      Frank L. Young, for the appellant.
    
      George II. Walker, for the respondent.
   Rich, J.:

It was stipulated upon the hearing before the Public Service Commission that public safety required the elimination of the existing grade crossings. The stipulation removes from our consideration the convenience, adequacy and propriety of .the manner of elimination.” The remaining questions are the constitutionality of the Grade Crossing Act, and whether the appellant village can be required to pay any portion of the expenses attending the elimination of the crossings.

It is contended, first, that the improvement is for local or private purposes, and that the statutes (Railroad Law [Laws of 1890, chap. 565], §§ 62-66, added by Laws of 1897, chap. 754, and amd. by Laws of 1898, chap. 520; Laws of 1899, chaps. 226, 359 ; Laws of 1900, chap. 517, and Laws of 1902, chap. 140) required the assent of two-tliirds of the members elected to each branch of the Legislature (N. Y. Const. art. 3, § 20); that the statement of the Secretary of State inserted under the title of the law, as required by section 44 of the Legislative Law (Laws of 1892, chap. 682, as amd. by Laws of 1894, chap. 53) does not show that such statutes were passed by a two-thirds vote,” and that the presumption obtains, in.the absence of affirmative evidence, that they were not so passed; and, second, that the requirement that the village and State pay part of the cost is in violation of sections 9 and 10 of article 8 of ■ the Constitution prohibiting the State or any municipal subdivision thereof from giving money in aid of a corporation.

The weakness of the first contention lies in.the erroneous assumption that the Grade Crossing Act appropriates public money or property. It' does not appropriate anything. It authorizes the Legislature to thereafter annually appropriate $10(1,000 for the purpose of paying the State’s share of the expense of changing existing grade crossings.' The actual appropriation is made by each succeeding Legislature, and it is the bill actually appropriating, and not the one authorizing such future action which comes within the prohibition of section 20 of article 3 of the Constitution.- But were it otherwise the Court of Appeals has affirmed the holding of the Supreme Court in Matter of Boston & Albany R. R. Co. (64 App. Div. 257), that those statutes were within' the police power of .the State, did not violate' either of the constitutional provisions, iahd were constitutional. (170 N. Y. 619.)

The remaining questions arise upon the contention of the appellant, first, that the petitioner’s plans are for a rebuilding off' its road rather than for the elimination of grade crossings; second„ that the changes planned exclude the improvement, from the' provisions of section 62 (as amd. supra) and bring it within the provisions of sections 11 and 13 of the Bailroad Law (as amd. by Laws of 1897, chap. 235), requiring the company to procure an ■ order off the Supreme Court, the approval of the trustees of the village,; and to restore the highways to.their former state or. to such state as not to have unnecessarily impaired their usefulness, at their own expense; and, third, that the dangerous condition of the crossings- in the future will result solely from the acts of the company in changing the construction and motive power of its road.

These contentions are based upon the plans presented by the company to the Commission, of contemplated changes in their road and its operation, in connection with the elimination of the: crossings,-which may be briefly described, as follows : (1) To put in three additional tracks upon its right of way, of' which two (with the two now existing) are to be used for. passenger traffic and one for the operation of 'freight trains, with the latter of which switches for manufactories and other plants will be connected; (2) to operate’ its road by electricity, instead of steam, by the use of third rails, which will be necessarily i'aised above the level of the rails upon which the cars are run. -The three additional tracks witH accompanying facilities are all to be constructed upon land owned by the company and included within its present right-of way. Although the plan adopted by the Commission for crossing the existing tracks is by bridges of sufficient length to permit the laying of the additional tracks thereunder, the company has at no time asked that the village should pay any portion of the expense involved in this proceeding other than its statutory proportion of the cost of eliminating the existing grade crossings over its present two tracks, and by the determination of the Commission the village has been charged only with its proportion of such cost as is necessary to cross the existing tracks of the railroad company, with the necessary approaches and connection streets leading thereto, * * * and any sum in excess of such cost occasioned by additional main tracks or other improvements shall' be paid entirely by the railroad company.” The existing situation as presented to the Commission was dangerous to public safety, and required the elimination of the grade crossings, as was conceded by the village. The manner of such elimination was wholly within the powers vested in the Commission by the statute, subject only to judicial review. They possess practically the same powers as do commissioners, in condemnation proceedings; they view the crossings and existing conditions and are the judges of the law and the facts. There is nothing in the record showing that the plan of elimination is not the best which could have been devised, all things considered. JSTo abuse of discretion is apparent, and this court should not reverse their conclusions unless it is clearly made to appear that their decision as to the village bearing its statutory share of the expenses of eliminating the crossings is founded upon erroneous legal principles. (Matter of Boston & Albany R. R. Co., supra.) The additional tracks and the installation of electricity does not create a new railroad, but an improved one. The respondent, as the successor of the Hudson Eiver Eailroad Company, is authorized by the charter of that company (Laws of 1846, chap. 216) to construct and maintain such additional main tracks (New York Central & H. R. R. R. Co. v. Untermyer, 133 App. Div. 146; 196 N. Y. 531), and to carry property and persons upon and over its road by the power and force of steam, of animals,' or of any mechanical or other power.” (See, also, Railroad Law, § 4, subd. 7, as amd. by Laws of 1892, chap. 676.) Had the railroad company instituted this proceeding without divulging its contemplated future plans, or had it laid its additional tracks and changed its motive power, as it was authorized to do, and then instituted this proceeding, there would have been no basis for an appeal from the order made by the-Commission, and the fact that it disclosed its future intentions in the petition by which this proceeding was commenced, in no manner lessened the powers of' the Commission, or changed the legal rights of the parties. In People ex rel. Town of Colesville v. D. & H. Co. (177 N. Y. 337), cited by; the appellant to sustain its contention in this respect, it was not public safety, but a change of grade that required the elimination of the crossing. In the case at bar, under present conditions, the elimination of the grade crossings are required in the interest of. public safety. The order does not direct any change in the route or grade of the; railroad, and it was not claimed on the hearing that the laying of the additional tracks or 'change of motive power to electricity* rendered it impossible or impracticable to operate the trains of the company over the streets of the village at grade; there is no evidence that the laying of the additional tracks, or change of motive power, would necessitate the carrying of the streets over or under the railroacl.

The learned counsel for the appellant asks'us to reverse the Order of the Public Service Commission because of the fact, wliitih be assumes, that the contemplated improvements when made would then require the elimination of the crossings.by. the railroad company at its sole expense, under section 11 of the' Railroad .Law. There are two conclusive answers to this contention: First, the result assumed is not established by the evidence; second, it is the existing crossings that are eliminated, and not a crossing that, may exist in the future; it is the existing crossings that are dangerous and a menace to public safety, and it is the expense of eliminating the existing crossings only to which the village is required to contribute. •' ■

• The order of the' Commission must be affirmed, with fifty dollars costs.

Hirschbérg, P. J., Woodward, Thomas and Carr, JJ., concurred.

Order and determination' affirmed, .with fifty dollars costs and. disbursements. • ■ =  