XV. IN THE MATTER OF THE APPLICATION OF THE DUNKIRK AND POINT GRATIOT TRACTION COMPANY FOR A CERTIFICATE UNDER SECTION 59 OF THE RAILROAD LAW. September 14, 1899. On reading and filing the application of the Dunkirk and Point Gratiot Traction Company, for a certificate under section 59 of the Railroad Law, by Lester F. Stearns, president, verified August 15, 1899, the articles of association of said company and due proof of the publication thereof, due proof of the publication of notice of hearing before this Board, a map showing the proposed route of said railroad, and after a public hearing on said application in the city of Albany, on August 25, 1899, Lester F. Stearns appearing for the applicant and J. H. Stevens for the Erie Railroad Company, in opposition, and after further hearing in the matter in the city of Albany, on September 14, 1899, Lester F. Stearns appearing for the applicant, and H. A. Taylor appearing for the Erie Railroad Company, which company withdrew its opposition, and after reading and filing the report of the inspector of this Board, of his inspection of the route of the proposed railroad, and it appearing that the conditions of section 59 of the Railroad Law have been complied with by said company and that public convenience and a necessity require the construction of said railroad, it is Ordered, That said application be and the same is hereby granted, and the Board of Railroad Commissioners hereby certifies, in accordance with section 59 of the Railroad Law, that the conditions of said section have been complied with by the applicant company, the Dunkirk and Point Gatriot Traction Company, and that public convenience and a necessity require the construction of the applicant company's railroad, as proposed in its articles of association and as shown upon said map. XVI. IN THE MATTER OF THE APPLICATION OF THE NASSAU BELT LINE TRACTION COMPANY FOR A CERTIFICATE UNDER SECTION 59 of THE RAILROAD LAW. October 5, 1899. On reading and filing the application of the Nassau Belt Line Traction Company, for a certificate under section 59 of the Railroad Law, by Fred Ingraham, treasurer, dated April 28, 1899, the articles of association of said company and due proof of the publication thereof, due proof of the publication of notice of hearing before this Board, a map showing the proposed route of said railroad, and after a public hearing on said application in the city of New York, on May 16, 1899, Fred Ingraham appearing for said application, and J. A. MacElhinny, in opposition thereto, and M. L. Bruce for property owners, in opposition to the building of a railroad on Greenwich street in the village of Hempstead; and after reading and filing the report of the electrical expert of this Board, of his inspection of the proposed route of said company; and after reading and filing a stipulation from the applicant, to the following effect: "The Nassau Belt Line Traction Company hereby stipulates and binds itself to operate its lines by electric motive power only;" and it appearing that the conditions of section 59 of the Railroad Law have been complied with by said company, and that public convenience and a necessity require the construction of its railroad, it is Ordered, That said application be and the same is hereby granted, and the Board of Railroad Commissioners hereby certifies, in accordance with section 59 of the Railroad Law, that the conditions of said section have been complied with by the said company, the Nassau Belt Line Traction Company, and that public convenience and a necessity require the construction of said company's railroad. Inquiry as to Application Under Section 59 of the Railroad Law. 1. CHATHAM AND LEBANON VALLEY RAILROAD, NEW YORK, October 31, 1899. Board of Railroad Commissioners of the State of New York, Albany, N. Y.: GENTLEMEN.-The Chatham and Lebanon Valley Railroad, as appears by its certificate of incorporation, was fully incorporated for the purpose of maintaining and operating a railroad already built. Some question has arisen as to whether, in view of our articles of incorporation, a certificate of your Commission is required under the provisions of section 59 of the Railroad Law. The road acquired by the present company having been in operation prior to its acquisition by us, we are advised by counsel that the certificate mentioned in section 59 is not necessary. We deem it best, however, to have the expression of your Honorable Board upon this question. The question therefore submitted is: Does the Chatham and Lebanon Valley Railroad require a certificate under section 59 ? An early reply will oblige, Yours respectfully, CHATHAM AND LEBANON VALLEY R. R. ALBANY, November 23, 1899. WILLIAM C. ROBERTS, Esq., President Chatham & Lebanon Valley Railroad Co., No. 11 John St., Manhattan, New York City: DEAR SIR.-Your letter of the 31st ult., asking if it is necessary for the Chatham & Lebanon Valley Railroad Company to procure a certificate under section 59 of the Railroad Law, has been received. It appearing that said company was formed to operate a railroad already constructed, the Board holds that it is not necessary to procure a certificate under section 59 of the Railroad Law. By the Board, JOHN S. KENYON, Secretary. Decisions of Courts in Questions Arising Under Section 59 of the Railroad Law. 1. SUPREME COURT-FOURTH APPELLATE DIVISION. APPLICATION OF THE AUBURN AND WESTERN RAILWAY COMPANY TO THE APPELLATE DIVISION OF THE SUPREME COURT FOR THE CERTIFICATE PROVIDED FOR BY SECTION 59 OF THE GENERAL RAILROAD LAW, UPON A CERTIFIED COPY OF ALL MAPS AND PAPERS ON FILE IN THE OFFICE OF THE BOARD OF RAILROAD COMMISSIONERS OF THE STATE OF NEW YORK, IN THE MATTER OF THE APPLICATION OF SAID RAILWAY COMPANY FOR SUCH CERTIFICATE; SAID BOARD HAVING BY AN ORDER MADE AT THE CAPITOL, IN THE CITY OF ALBANY, ON THE 8TH DAY OF JUNE, 1897, DENIED THE APPLICATION OF SAID RAILWAY COMPANY FOR SUCH CERTIFICATE. Per Curriam: The denial by the Board of Railroad Commissioners of the petitioner's application was the exercise of a power largely discretionary in its character which the Legislature of this State had vested in a body created for a special purpose and composed of men peculiarly qualified by experience to deal with the vexatious problems arising out of the over increasing demand for better and more adequate means of transportation. And while this court has been expressly empowered to review the action of the Commissioners in refusing to grant such a certificate as was asked for in this case, yet it has held in every instance where a review has been had, that for the reason above stated their determination must be treated in the same manner as that of any other subordinate judicial tribunal whose judg ments are subject to review, which is equivalent to saying that their conclusion must be respected and sustained unless it be made clearly and affirmatively to appear that it was founded upon erroneous legal principles, or that in reaching the same the Commissioners proceeded contrary to the clear weight of evi dence; or that they abused the discretion vested in them and arbitrarily refused to issue the certificate asked for. Matter of New Hamburg and Poughkeepsie R. R. Co., 76 Hun, 76; matter of Amsterdam, J. and G. R. R. Co., 86 id., 578; matter of Depew and S. W. R. R. Co., 92 id., 406. In the light of the rule just adverted to we have carefully examined the record in this proceeding with a view to determining to what extent the petitioner has sustained the burden resting upon it of showing affirmatively that the determination of the Commissioners is in any respect erroneous. From this record it appears that the petitioning corporation was organized in July, 1896, under the name of the Auburn and Western Railway Company, for the purpose of constructing and operating by electricity a street surface railroad, which should extend from the west line of the city of Auburn in the county of Cayuga, to the east line of the town of Seneca Falls, in the county of Seneca. It further appears that it was designed by· the incorporators, that when thus constructed, the road should connect with the Auburn City Railroad Company at its eastern terminus and at its western terminus with another surface railroad running from Cayuga lake to the city of Geneva, in Ontario county, thus forming a continuous line of road operated by the trolley system from Auburn to Geneva, a distance of about twenty-five miles. The capital stock of the petitioner's company is $300,000, of which sum $11,000 only had been subscribed when this proceed-ing was commenced; and of this amount, Mr. Clifford D. Beebe, of Syracuse, appears to be the owner of 96 shares, the par value of which is $9,600. It is also made to appear that if the petitioner's road is constructed upon the route contemplated, it will, in connection with the Geneva road, parallel that portion of the New York Central and Hudson River Railroad known as the "Auburn Branch" for the entire distance between Auburn and Geneva; that it will also parallel a branch of the Lehigh Valley Railroad from Auburn to a point on Cayuga lake, midway between the villages of Cayuga and Union Springs, and that it will necessarily cross each of these roads at grade between Auburn and Cayuga. Notwithstanding the facilities for transportation which these two lines of railroad afford, and it appears that there are thirteen passenger trains passing over the New York Central and Hudson River Railroad and six over the Lehigh Valley Railroad daily-it is insisted that they are wholly inadequate, and that consequently public convenience and a necessity require the completion of the competing line which the petitioner proposes to construct. To support this contention, witnesses were called from the city of Auburn and from the various localities and villages inter |