
    The People of the State of New York ex rel. Robert Loughran and Others, Relators, v. The Board of Railroad Commissioners of the State of New York, and Ashley W. Cole and Others, as Railroad Commissioners of the State of New York, Respondents.
    
      Railroad' Commissioners—application by a railroad to abandon a station given to it by citizens — contract obligations not to be considered by the commissioners — certiorari.
    
    ‘The Board of Railroad Commissioners of the State of Hew York may properly grant an application by a railroad company for leave to abandon one of three stations in a city having some 25,000 inhabitants, notwithstanding the fact that the station has been paid for by citizens of the city and has been conveyed to the railroad company by them' under an agreement that, in consideration thereof, the railroad would cause ilts trains to stop at said station for passenger purposes, the agreement containing nothing to indicate how long it should continue in force.
    
      .Semble, that the Board of Railroad Commissioners is not authorized; in the execution of its duties, to pass upon the force and effect of contracts made between a'railroad company and third parties. Per Parker, P. .J., and Putnam; J.
    
      .Semble, that a writ of certiorari lies to review the determination of the Board of Railroad Commissioners in giving or withholding its consent to the discontinuance of a railroad station. Per Landon, J.
    Certiorari issued out of the Supreme Court, and attested on the ■9th day of April, 1898, directed to Ashley W. Cole and others, as Railroad Commissioners of the State of New York, and constituting the Board of Railroad Commissioners of the State of New York, commanding them to certify- to the office of the clerk of the county of Albany their and its proceedings in the matter of the application of the relators to the Board of Railroad Commissioners, to compel _ the Ulster and Delaware Railroad Company to continue to main-^ tain, a station near the head of Fair street in the city of Kingston, New York, and the application of the Ulster and Delaware Railroad Company for leave to abandon said station.
    In the year 1881, certain citizens of the city of Kingston, N. Y., entered into an agreement with Hon. Thomas Cornell, the president of the Ulster and Delaware Railroad Company, by which the latter agreed that, if such citizens would raise a sufficient.sum of money, purchase a lot and erect a station house at-a point near the head of Fair street in said city, said Cornell would cause the trains of said railroad company to stop at such depot for passenger purposes. Thereupon a subscription paper, reciting such agreement, was drawn up, which was subscribed by numerous _citizens, and the sum of $3,345 being realized, was expended in extending Fair street to the point agreed upon, purchasing a lot and erecting a station house thereon. The.deed of such lot was taken to the railroad company, but contained the following clause: “ This description being designed and intended to give fifty feet additional width to the said railroad lands for the purpose of a depot building and grounds ; and when it ceases to be used, as such, it is to revert to the party of the first part.”
    At a meeting of the stockholders of said railroad company, held on June 14, 1882, the following resolution was passed : “ On motion, the acts of the officers and directors. of the Ulster & Delaware Railroad Company for the preceding year were approved, ratified and confirmed.” A like resolution was passed in each of the years 1883 and 1884.
    The agreement actually made between Mr. Cornell and the'citizens of Kingston in ISS'l in relation to the Fair street station was recited in the subscription paper referred to as follows : “Whebeas, the Hon. Thomas Cornell, President of the Ulster & Delaware Railroad Co., has assured a committee that if the people would erect a depot building at the foot of Voorhees Lane, or at a point near the head of Fair street, lie would cause the trains of said road to stop at said depot for passenger purposes. In consideration thereof we, the undersigned, do hereby agree to pay the sums set opposite our respective names,” etc.
    Under said agreement the passenger trains of the railroad company were stopped at the Fair street station for' fifteen years. In 1897, the company proposing to discontinue the use of said station, the relators, residents and freeholders of the city of Kingston, acting for themselves and as a committee of citizens of Kingston similarly situated, presented to the Board of Railroad Commissioners a petition asking for an order prohibiting the Ulster and Delaware Railroad Company from discontinuing the Fair street station, whereupon the said railroad company interposed an answer to said petition, and also filed its petition to said board asking for its consent to an abandonment of said station, to which latter petition the relators served an answer. A hearing was thereafter had on the questions raised by the said petitions and the answers thereto, both applications being heard as one proceeding. The board granted its consent to the discontinuance of said station, and thereupon the relators sued out a writ of certiorari to review the action of said board.
    The city of Kingston, in 1897, contained about 25,000 inhabitants. Subsequent • to the year 1881, the West Shore Railroad Company was constructed, crossing the tracks of the Ulster and Delaware Railroad Company in the city of Kingston, about a mile east of the Fair street station, and at that place was established- a union depot, used by the said two railroad companies, and also by the Walkill Valley Railroad Company,, whose track extended to that point. There is also another depot at Rondout, in the south part of the city of Kingston, so that the Fair street station being discontinued, there' remain two stations at which the trains of the Ulster and Delaware Railroad Company stop in said city.
    
      John J. Linson, for the relators.
    
      Theodore E. Hancock, Attorney-General, James A. McCormick and Lewis E. Carr, for the respondents.
   Putnam, J.:

It is urged by the learned counsel for the relators that the contract entered into- in 1881 between citizens of the city of Kingston and the Hon. Thomas Cornell,' then president of the Ulster and Delaware Railroad Company, was clearly proved,- undisputed, valid and in force in 1897, and hence, that the' consent of the Railroad Commissioners that the Fair street station might be discontinued, in violation of the provisions of said contract, was improperly given.

It will be observed that the contract in question contains no provision as to how long it should continue in force. And the deed of the lot on which the station was erected contains a clause that the conveyance was made “ for the purpose of a depot building and grounds, and when it ceases to be used as such, it is to revert to the party of the first part.”

It is certainly questionable whether, under the agreement, the railroad company was compelled to continue the use of the depot in question perpetually, and whether its use for the period of fifteen years was not a performance of the contract. In Texas, etc., Railway Co. v. Marshall (136 U. S.. 393) it appeared that the city of Marshall had agreed to give to the Texas and Pacific Railway Company $300,000 in county bonds and sixty-six acres of .land, in consideration of the agreement of the company to jpermanently establish its eastern terminus and Texas office in said city, and to construct therein the main machine shops and car works of the company. Notwithstanding the word “permanently” used in the contract between the railroad company and the city, it was held that the covenant on the part of the company was performed when it had established a depot and office and operated car works and machine-shops in the city, and kept them going for eight years. It was determined that the word “ permanently ” did not mean forever, orlas ting forever.

In the contract relied upon by the relators the word “ permanently ” was not used. Nothing therein contained indicated how long the contract was intended to remain in force, or that the parties expected it to continue operative after' the lapse of fifteen years under changed circumstances and conditions. In the case cited it was said, of the contract there considered : “ It did not amount to a covenant that the company would never cease to make its eastern terminus at Marshall; that it would forever keep up the depot at that place; that it would for all time continue to have it's machine shops and car shops there, and that whatever might be the changes of time and circumstances, of railroad rivalry and assistance, these things, alone should remain forever unchangeable; Such- a contract,, while we do not say that it would- be void, on. the ground of public' polióy, is undoubtedly so far objectionable as obstructing improvements and changes which might be for the public interest, and is so far a hindrance in the way of what .might be necessary for the advantage of the railroad itself and of the community which enjoyed its benefits, that we must look' the whole contract o.ver critically before we decide that, it bears such an.imperative and such a remarkable meaning.”, The language quoted was applied to a contract wherein the railroad corporation had agreed to “ permanently ” establish its eastern terminus in the. city of Marshall. In the contract under consideration the word“ permanently ” was not used, and there Avas no covenant as to how long it .should continue in force. It is certainly doubtful whether, the Ulster and Delaware Railroad Company — in 1887 —having for fifteen years complied with its covenant- contained in such -contract, was compelled to continue the use of the Fair street station.

Again, however, the contract may he construed. It is questionable whether, under all the facts and circumstances. shown, the case is one in which a performance should be enforced. (See Texas, etc., Railway Co. v. Marshall, supra, 405; Conger v. N. Y., W. S. & B. R. R. Co., 120 N. Y. 29.)

In the last case cited it was held that the enforcement of Specific performance-of a contract is discretionary,, and performance will not be decreed where it will result in great hardship to one party without any considerable benefit to the other, or in cases where the public interests Would be prejudiced thereby. Whether -this is a case where specific performance under well-settled principles should be .-awarded to the relators, depended upon questions of fact and law upon which different vie-ws might be entertained. '

The relators, therefore., asking the Board of Railroad Commissioners to determine the Aralidity and to enforce the performance of the -contract of 188.1,. the questions sought to be raised were .: Was the contract made by Mr. Cornell and certain citizens of the'city of Kingston a valid and subsisting one; did it bind the corporation to stop the trains at the Fair street station perpetually, or was it performed.by the observance of the agreement by the company for fifteen years, and, under the facts and circumstances shown, were the relators entitled to enforce a performance thereof ?

We are of the opinion that we are not called upon to determine those questions on this appeal. They could properly be tried in an action in the Supreme Court brought by the relators, or those they represent, against the Ulster and Delaware Railroad Company, to enforce the performance of the contract under which they claim, in such an action as that of Conger v. N. Y., W. S. & B. R. R. Co. (supra). In such an action the parties could interpose proper pleadings. If questions of fact arose a jury could be called to try them, exceptions could be taken to the rulings of the trial court, and, at the conclusion of the trial, a proper judgment entered, which might be reviewed on appeal. We are unable to find any provisions in the Railroad Law (Chap. 565, Laws of 1890; chap. 676, Laws of 1892) authorizing the Board of Railroad Commissioners to pass on the force and effect of the contract made between the Ulster and Delaware Railroad Company and certain citizens of Kingston in regard to the location of the depot at Fair street, or to enforce a performance of such contract. Section 34 of the act provides : No station established by any railroad corporation for the reception or delivery, of passengers or property, or both, shall be discontinued without the consent of the Board of Railroad Commissioners first had and obtained.” And section 157,. that “ The board shall have power to administer oaths in all matters relating to its duties, so far as necessary to enable it to discharge such duties; shall have general supervision of all 2-ailroads, and shall examine the same and keep informed as to their condition, and the manner in which they are operated, for the security and accommodation of the public, and their compliance with the provisions of their charters and of law.” Neither of the provisions of the act above quoted, or any others contained therein, where there are disputed questions arising between railroad companies and third persons, under contracts, authorizes the Board of Railroad Commissioners to bring into proceedings pending before them relating to the discontinuance of a station, such other parties, and to determine their rights. In giving consent to the discontinuance of a station under the provisions of section 34 (supra), the commissioners act for the State; the proceeding is one between them and the railway corporation only. A consent may be granted under the act after a personal inspection of the road by the commissioners, and without notice to any other party.. It is true the board may take evidence; may hear the objections of those opposed to- a change of a station ; may go- through the form of a trial.:; but such proced ure and trial are for the purpose of satisfying the commissioners. The Railroad Law does not contemplate, on a question of a discontinue anee of a station, its bringing in as parties to proceedings before it third parties, between whom and a railroad company disputes exist as to their respective rights under contracts. As said in State of Connecticut v. New Haven & Northampton Co. (43 Conn. 351, 382), “ But it is not their duty, and they have no power, to ascertain and determine the rights and enforce the relative duties of contending parties. Their whole power, and, consequently, their whole duty, in respect to the matter now under consideration, was to give or withhold their consent to the proposition of the railroad company. Their duties are not to enforce rights and redress wrongs, as a court of justice, but to stand in place of the Legislature between corporations and the public and supervise the exercise of corporate powers, so that no injustice may be done. The Legislature might, and for a considerable period of time did, discharge these duties itself; but, as railroads became more numerous and complaints more frequent, the power was wisely delegated to a convenient board that could act promptly and with advantage to all concerned.”

The same remarks apply to the provisions of section 157 of the act. The power therein conferred upon the Board of Railroad Commissioners to enforce compliance, by railroad companies, with the provisions of their charter and of law does not authorize it to act as a court of equity and determine the force and effect of contracts made between railroad companies and third parties and to enforce performance of such Contracts. All that the. Board of Railroad Commissioners was called upon to do on the application of the Ulster and Delaware Railrozi d Company to discontinue the Fair street station, was to give or withhold its consent. It was called- upon tó determine whether, as between the railroad company and the general public, a consent should be given. If the plaintiffs or those they represent have a subsisting contract by which the Ulster and Delaware Railroad Company is obliged' to continue the use of the Fair street station, they are not prevented from enforcing its covenants by the action of the defendant. The consent of the latter was an act on behalf of the State, by them represented, and did not determine questions arising under a contract between the railroad company and the relators, or those they represent.

We are of the opinion that the defendant was not called upon to determine the force and validity of the contract in question.

The board not being compelled, as between citizens of Kingston and the Ulster and Delaware Railroad Company, to determine the respective rights of the parties under the contract of 1881, or enforce a performance thereof, the question arises whether or not any error was committed by the defendant in giving its consent to the discontinuance of the Pair street station, which this court can or should review.

It is urged by the relators that the board, in hearing the proofs and allegations of the respective parties in relation to the discontinuance of the station in question, and in determining the issue raised in favor of the railroad company, exercised judicial functions, and, hence, that its action may be reviewed on certiorari. On the other hand, it is claimed that the functions of the Board of Railroad Commissioners, under the Railroad Law, are administrative and ministerial, and not judicial, and, hence, defendants’ action in granting leave to the railroad company to discontinue the use of the station cannot be reviewed by this court.

We do not determine the question thus raised. Assuming, then, that we have the power claimed by appellants, after a careful consideration of'the facts and circumstances of this cáse, we are unable to say that the defendants erred in granting the prayer of the Ulster and Delaware Railroad Company to discontinue the use of the Fail-street station.

As said by Herrick, J., in Matter of Amsterdam, Johnstown & Gloversville R. R. Co. (86 Hun, 578, 581): “ The Railroad Commissioners are vested with the supervision of the railroads of the State; it is made their special and peculiar duty to investigate and inform themselves as to the condition of existing roads, and as to the needs of the various parts of the State for transportation facilities; and their opinion upon these matters, in regard to which a proper discharge of their oficial duty requires them to be specially informed, is entitled to respect and consideration.” We should also remember that the member's of the Board of Railroad Commissioners, before passing upon the question submitted to them, had the benefit of a personal inspection -of the line of the railroad, of the existing depots, and of the city of Kingston; that this personal inspection of the locality had, perhaps, as niuch force on the minds of the-commissioners as the evidence produced before them, and that this court cannot have the benefit of a personal view of the locality. Under such circumstances — if we may, in this proceeding, review the action of the defendant as judicial in. its character to .justify a reversal, the relators are required to satisfy us with reasonable certainty that the defendant committed an error in its determination. In its memorandum-the board stated : “In the hearing of this case the Board took a large amount of testimony and made official personal examination on several occasions of the location and general situation relating to the Fair Street station, á station used solely for passengers. The conditions are' probably unmatched anywhere in the United States. The consolidated city of .Kingston has a population of less • than 25,000. For many years it was a community separated some three miles from the village of Rondout. Each, then, had its independent station on the line of the'Ulster and Delaware Railroad; now they are united in one municipality. The West Shore Railroad was built later, passing about midway between the two-pre-existing stations and intersecting the Ulster and Delaware line. A new station at the junction was a necessary consequence, with the result -that the old line was burdened with the expense of maintaining three ¡stations for the uses of a small city. Tliis is an onerous situation, considered in' relation to a small local railroad struggling to overcome -its indebtedness. The company contends that the. effect is to cause serious delay in its summer or best season for traffic, and to involve the expense of maintaining the station, which at present is in a state of dilapidation and would soon have to be practically rebuilt, * * * It appearing to the Board that, under all the circumstances, the application is.a meritorious one, the prayer of the petitioner is granted.”

We do not deem it necessary to enter into an extended discussion of the facts and circumstances, of the case. It is sufficient to say that we are not satisfied that the defendant was' wrong in the conclusion it reached.

Subsequent to the contract made in 1881 between the Ulster and Delaware Railroad Company and citizens of Kingston conditions had changed. The West Shore Railroad Company had built its. road, which intersects that of the Ulster and Delaware Railroad Company south of the Fair street station, and at, that point a union station had been necessarily established by the two companies and by the Walkill Valley Railroad Company. There was also the Rondout station in the south part of the city, which appeared to be required. Two stations in a city of less- than 25,000 inhabitants may properly be deemed sufficient. There is much force in the suggestion that it was unjust to compel the Ulster and Delaware Railroad Company to be at the expense of keeping up a third station and to stop its trains thereat. Whether the pvhlio interests required the. continuance of the Fair street station or otherwise, was a question for the Board of Railroad Commissioners to pass upon; and we are not satisfied that its conclusion in that regard was erroneous. Undoubtedly it would be for the convenience of those represented by the relators, if the station should be continued. They may sustain some damage by its discontinuance. In every city through which the tracks of a railroad extend, a large portion of the inhabitants are remote from a station, who undoubtedly would be benefited if such a station were located near their place of business. But that fact does not require such location. A railroad company should not be compelled to ¡dace or continue its depots to accommodate the citizens of a section of a city, but should be made to locate them at such places as the public interests and convenience require.

We are not prepared to hold that the determination of the defendant, that the application of the Ulster and Delaware Railroad Company to discontinue the Fair street station was a meritorious one, and -should be granted, is shown by the relators to be erroneous.

We hence conclude that the determination of the defendant should be confirmed, with fifty dollars costs and disbursements.

Parker, P. J.:

I think the duty of the Railroad Commissioners was to inquire and determine whether, as between the railroad company and the general public, it was just to require the company to maintain this station.

It was not their duty, and they had no jurisdiction to decide as between the company and any person, or persons contracting with ' it whether, under contract obligations, the company must maintain ■such station. That question, being beyond their jurisdiction, ought not to have controlled them or entered at all into their. consideration of the subject. '

Hence,, the existence of the contract upon which the relators rely is no ground for our reversing the decision of the commissioners.

• The real ground upon which we are asked to reverse is that under their contract the company was obligated to maintain the station. But that question was not properly before the commissioners, and, therefore,-it was not one which at all influenced their decision.

So far as the evidence bearing upon the public necessities and the justice of requiring the company to maintain the station for its convenience is concerned, that has been passed upon by the commissioners, and we should not disturb it.

I concur in the result.

Landon, J.:

For reasons stated in People ex rel. Babylon R. R. Co. v. Board of Railroad Commissioners (post, p. 179), I think certiorari lies to review the determination of the board in giving or withholding consent to discontinue, but I concur in the result.

Determination of Railroad Commissioners confirmed, with fifty dollars costs.  