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[2] Certificates of public convenience and necessity.

As prerequisite.

Provisions relative to granting of certificates of public convenience and necessity by former Board of Railroad Commissioners,- see N. Y. R. R. L., § 59.

Territorial jurisdiction of commissions for granting of permits,- see ante, § 5.

Giving of permits to newly formed gas and electrical corporations,— see post, § 68.

Whether granting certificates of necessity is a judicial act,— see ante, § 4, note [19].

A taxpayer sued to enjoin the city authorities of Brooklyn from granting a franchise to a certain street railroad corporation. It appeared that this corporation had not obtained the certificate of the N. Y. Board of Railroad Commissioners required by N. Y. R. R. L., § 59. Held, that under the conflicting decisions of the New York courts, the lack of this certificate did not so clearly disqualify the company from receiving a franchise at the hands of the city, as to warrant giving injunctive relief to the plaintiff.- Seccomb v. Wurster, 83 Fed. 856.

A street railroad corporation not having a certificate of necessity from the N, Y. Board of Railroad Commissioners may nevertheless bid at a sale of a franchise under N. Y. R. R. L., § 93.- Matter of Empire City Traction Co., 4 App. Div. (N. Y.) 103, 38 N. Y. Supp. 983.

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The granting of a certificate of convenience and necessity is not a prerequisite to the granting of local consents or franchises.- People ex rel. West Shore T. Co. v. Bauer, 54 Misc. (N. Y.) 28, 103 N. Y. Supp. 1078.

To have secured a certificate of necessity from the N. Y. Board of Railroad Commissioners is not a prerequisite to a valid application for a city franchise by a surface street railroad.- McWilliams v. Jewett, 14 Misc. (N. Y.) 491, 36 N. Y. Supp. 620.

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Where a railroad and a street railroad intersect, it is not necessary that such roads obtain the consent of the Public Service Commission, under N. Y. Pub. Serv. Com. L., § 53, before constructing an extension connecting their tracks, such connection being directed by N. Y. R. R. L., § 12, which is not superseded by the said section of the Public Service Commissions Law.- Village of Ft. Edward v. H. V. R. Co., 192 N. Y. 139, 84 N. E. 962, affg. s. c. 122 App. Div. 903, 106 N. Y. Supp. 1148.

Where a proposed extension to a street railroad will really compose the main body of the road, a certificate of public convenience and necessity must be obtained.- New York, C. & H. R. R. Co. v. B. & W. El. R. Co., 96 App. Div. (N. Y.) 471, 89 N. Y. Supp. 418.

The mere fact that a proposed extension is much longer than the original line is not sufficient to support the conclusion that the addition is a new road and not an extension, within the meaning of the N. Y. Railroad Law.- Roberts v. Huntington R. Co., 56 Misc. (N. Y.) 62, 105 N. Y. Supp. 1031.

A certificate of necessity, pursuant to N. Y. R. R. L., § 59, is not requisite where a street surface railroad desires to make a bona fide extension of its route.- Delaware, L. & W. R. Co. v. Syracuse, L. & B. R. Co., 28 Misc. (N. Y.) 456, 59 N. Y. Supp. 1035; affd. 43 App. Div. (N. Y.) 621, 60 N. Y. Supp. 386.

The building of a lateral line in connection with the main line of a street railway is the construction of an "extension" within the meaning of N. Y. Pub. Serv. Com. L., § 53.— Application of Rochester, Corning, Elmira Traction Co. Decided by the N. Y. Public Service Commission for the Second District, March 30, 1908.

It would seem that under the provisions of the N. Y. Railroad Law in effect prior to July 1, 1907, a street railroad company which had obtained a certificate of public convenience and a necessity could not, prior to the construction of any part of its line, obtain the right to construct an extension into new territory by merely complying with the provisions of N. Y. R. R. L., §§ 90, 91, relative to the construction of extensions. Application of Rochester, Corning, Elmira Traction Company. Decided by the N. Y. Public Service Commission for the Second District, March 30, 1908.

A street railroad company which prior to July 1, 1907, had filed a statement of streets, highways, etc., upon which it proposed to construct an extension, but had not obtained the consents of local authorities and abutting owners as was required by N. Y. R. R. L., § 91, must apply to the N. Y. Public Service Commission under N. Y. Pub. Serv. Com. L., § 53, for the consent therein required.— Application of Rochester, Corning, Elmira Traction Co. Decided by the N. Y. Public Service Commission for the Second District, March 30, 1908.

[4] - Matters to be considered.

Commissioners, in deciding as to the public convenience and necessity of an extension of a street railway, may properly consider all the circumstances such as the probable growth of population, the convenience of the people and that there is a territory beyond the proposed extension which must be accommodated at an early day and that it can only be accommodated after such extension is built.- Matter of United Traction Co., 119 App. Div. (N. Y.) 806, 104 N. Y. Supp. 377.

The fact that the territory through which a traction company desires to build its line is now occupied by other railroads is a fact properly considered in deciding whether a certificate of public convenience and neces

sity should be granted, but it is in no sense a controlling fact.- Matter of Rochester, Corning, Elmira Traction Co., 118 App. Div. (N. Y.) 521, 102 N. Y. Supp. 1112.

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 as to granting certificates of necessity 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.- Matter of Auburn & W. R. Co., 37 App. Div. (N. Y.) 162, 55 N. Y. Supp. 895; Matter of Depew & S. W. R. Co., 92 Hun (N. Y.), 406, 36 N. Y. Supp. 991; Matter of Amsterdam, J. & G. R. Co., 86 Hun (N. Y.), 578, 33 N. Y. Supp. 1009; Matter of New Hamburg & P. C. R. Co., 76 Hun (N. Y.), 76, 27 N. Y. Supp. 664; People v. Ulster & D. R. Co., 58 Hun (N. Y.), 266, 12 N. Y. Supp. 303.

Upon an application to the N. Y. Board of Railroad Commissioners for a certificate of public convenience and necessity, the Board should inquire into all prior proceedings of the alleged corporation, and see if all essentials have been complied with.- Matter of Kings, Q. & S. R. Co., 6 App. Div. (N. Y.) 241, 39 N. Y. Supp. 1004.

[5]

Grounds for granting or refusing.

Where a proposed railroad would have no local traffic but would be practically a switch or additional track of an existing road, the N. Y. Board of Railroad Commissioners made an improper exercise of its discretion in granting a certificate of necessity.- People ex rel. Steward v. Board of R. R. Comrs., 160 N. Y. 202, 54 N. E. 697, affg. s. c. 40 App. Div. (N. Y.) 559, 58 N. Y. Supp. 94.

A certificate of convenience and a necessity should not be granted where it appears that the proposed railroad, 12 miles in length, which is intended to be operated as an independent road, would furnish railroad facilities to a 'town of eighteen hundred inhabitants which includes a village of three hundred inhabitants; that other roads run near to such town; that many of the inhabitants could ship their freight more cheaply and more conveniently over the existing lines; that all the passenger travel is now conducted by a stage coach running once a day between the proposed termini of the road; that the cost of construction and equipment would exceed the proposed capital stock and it seems doubtful if the road could pay running expenses.- People ex rel Potter v. Board of R. R. Comrs., 124 App. Div. (N. Y.) 47, 108 N. Y. Supp. 288.

The N. Y. Board of Railroad Commissioners had no authority to issue a certificate of public convenience and a necessity to a corporation

until it was furnished with a receipt showing that such corporation had paid the tax required by the N. Y. Tax Law, § 180, as amended.— People ex rel. N. Y. C. & H. R. R. Co. v. Pub. Serv. Commission, 122 App. Div. (N. Y.) 283, 106 N. Y. Supp. 968.

A certificate of convenience and necessity of a trolley road about four miles long should not be refused merely because there is doubt in the minds of the N. Y. Board of Railroad Commissioners whether the road would be a paying one, it appearing that the construction of the road is desirable and necessary.― Matter of Ticonderoga Union Term. R. Co., 116 App. Div. (N. Y.) 56, 101 N. Y. Supp. 107.

That a proposed terminal railroad will divert a large quantity of traffic from the streets of a populous district, and effect a substantial saving of time and money in handling freight, will sustain a finding of the N. Y. Board of Railroad Commissioners that public convenience and necessity require the construction of such road.-People ex rel. Terminal R. Co. v. Board of R. R. Comrs., 53 App. Div. (N. Y.) 61, 65 N. Y. Supp. 597; affd. 164 N. Y. 572, 58 N. E. 1091.

The refusal of local authorities to permit the building of a street surface railway in certain places, and consequent necessity of making several changes from the route indicated in the articles of association, do not require the N. Y. Board of Railroad Commissioners to refuse the certificate of convenience, where it appears that the alterations are not considerable, and that the same considerations of convenience which urged the building of the road on the original route would be subserved by building it on the altered route.- People ex rel. L. I. R. Co. v. Board of R. R. Comrs., 42 App. Div. (N. Y.) 366, 59 N. Y. Supp. 144.

That a proposed railroad would enhance the value of Adirondack Park lands soon to be acquired by the state, is not a valid ground for denying it a certificate of necessity.- Matter of Long Lake R. Co., 11 App. Div. (N. Y.) 233, 42 N. Y. Supp. 125.

That each of two connecting roads were incorporated on the same day by the same persons and have a length of ten miles each, is not a ground for denying a certificate of necessity.- Matter of Long Lake R. Co., 11 App. Div. (N. Y.) 233, 42 N. Y. Supp. 125.

If the convenience and accommodation of the locality would be promoted by a proposed road, the N. Y. Board of Railroad Commissioners should grant it a certificate of necessity, unless important public interests would be unfavorably affected.- Matter of Long Lake R. Co., 11 App. Div. (N. Y.) 233, 42 N. Y. Supp. 125.

Where a proposed railroad practically parallels existing roads and would impair the value of property invested in such roads without material improvement in facilities afforded the public, the N. Y. Board

of Railroad Commissioners is justified in denying a certificate of public convenience and necessity.- Matter of Kings, Q. & S. R. Co., 6 App. Div. (N. Y.) 241, 39 N. Y. Supp. 1004.

Local sentiment is not a reason for granting or withholding a certificate of necessity.- Matter of Amsterdam, J. & G. R. Co., 86 Hun (N. Y.), 578, 33 N. Y. Supp. 1009.

Defects in service or the charging of exorbitant rates do not make a case for granting a certificate of necessity to a new railroad, as the law provides remedies for those abuses.- Matter of Amsterdam, J. & G. R. Co., 86 Hun (N. Y.), 33 N. Y. Supp. 1009.

Multiplication of grade crossing, etc., is a ground on which the N. Y. Board of Railroad Commissioners may, in the exercise of its discretion, refuse a certificate of necessity.- Matter of New Hamburg & P. C. R. Co., 76 Hun (N. Y.), 76, 27 N. Y. Supp. 664.

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Judicial review of orders generally,- see ante, § 23, notes [5]-[9]. A decision of the N. Y. Board of Railroad Commissioners granting a certificate of public convenience and necessity is judicially reviewable.- People ex rel. Steward v. Board of R. R. Comrs., 160 N. Y. 202, 54 N. E. 697, affg. s. c. 40 App. Div. (N. Y.) 559, 58 N. Y. Supp. 94.

A determination of the N. Y. Board of Railroad Commissioners granting a certificate of convenience and necessity is final as to the owners of the land through which the proposed route would pass.People ex rel. Steward v. Board of R. R. Comrs., 160 N. Y. 202, 54 N. E. 697, 40 App. Div. (N. Y.) 559, 58 N. Y. Supp. 94.

The rule that a board exercising judicial functions conferred by statute has no interest in maintaining its decision and hence has no right to appear by counsel on appeal therefrom, applies to review of the decision of the N. Y. Board of Railroad Commissioners granting a certificate of public convenience and necessity.- People ex rel. Steward v. Board of R. R. Comrs., 160 N. Y. 202, 54 N. E. 697, affg. 40 App. Div. (N. Y.) 559, 58 N. Y. Supp. 94.

Where the N. Y. Board of Railroad Commissioners has decided questions of fact, and the Appellate Division has unanimously affirmed such decision, the Court of Appeals has no power to review such affirmance, when no question is raised that is not necessarily determined by the decision of the question of fact.-People ex rel. Loughran v. Board of R. R. Comrs., 158 N. Y. 421, 53 N. E. 163, affg. 32 App. Div. (N. Y.) 58, 52 N. Y. Supp. 901.

On an appeal from a decision of the N. Y. Board of Railroad Commissioners refusing to grant a certificate of public convenience and

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