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People ex rel. Town of West Seneca v. Public Service Commission for Second Dist.

Supreme Court of New York, Appellate Division

January 22, 1909

PEOPLE EX REL. TOWN OF WEST SENECA
v.
PUBLIC SERVICE COMMISSION FOR SECOND DISTRICT ET AL.

Appeal from Special Term.

Motion by the People, on the relation of the Town of West Seneca, for a writ of prohibition against the Public Service Commission for the Second District of the State and another. From a final order of the Supreme Court denying the motion and dismissing an alternative writ, relator appeals. Affirmed.

On November 30, 1906, the respondent the Terminal Railway of Buffalo, a steam surface railroad operating a double-track road through the town of West Seneca, the appellant herein in Erie county, presented to the board of railroad commissioners a petition alleging: That it was building extensive railroad yards in said town; that its tracks were crossed at grade by Clinton street and Mineral Springs road, two highways of said town; that public safety required an alteration in the method of said crossings, their approaches, [114 N.Y.S. 637] and the location thereof; that for the purpose of the yard of petitioner then under construction it would be necessary to lay more tracks across said highway, thus creating an additional reason why such crossings should be changed. The petitioner demanded a decision that public safety required a change in the existing crossings, as to the manner in which such change should be made, and that the petitioner was entitled to immediately lay four additional standard guage tracks across said highways at grade.

On April 30, 1907, hearings having been had on said petition under sections 60 and 62 of the Railroad Law (Laws 1897, pp. 794, 796, c. 754), the board of railroad commissioners made a decision that four additional tracks of the Terminal Railway of Buffalo should immediately cross Clinton street and the Mineral Springs road highways in said town. It also further determined as follows: " That the Clinton street highway grade crossing of the Terminal Railway of Buffalo in the town of West Seneca, Erie county, shall be changed to an overhead bridge crossing of said railway to be situated at the present location of the crossing; that said overhead bridge shall be of steel, of a width of 30 feet for roadway and have a 5-foot sidewalk on brackets, and be of a length to span the entire right of way of said railway; that the floor of said overhead bridge shall be of asphalt; that the approaches to said overhead bridge shall be on a grade not greater than 4 per cent., and shall be of a width of 35 feet, including roadway and sidewalk; that said approaches shall be paved with brick; that said overhead bridge shall be of sufficient strength to carry a street surface railroad car weighing 50 tons loaded; that the Terminal Railway of Buffalo shall maintain the roadway and sidewalk on the said overhead bridge and said approaches thereto, irrespective of the provisions of section 64 of the railroad law; that the Terminal Railway of Buffalo shall pay all damages lawfully due adjoining property owners where the approaches to said overhead bridges are erected in front of private property." A similar determination was made as to the Mineral Springs road highway, and the order also contained this provision: " This board also hereby determines, under section 65 of the railroad law, that none of the costs of the work or expenses or claims connected therewith under this determination shall be borne by the state or by the town of West Seneca, Erie county."

The town of West Seneca, feeling aggrieved by such decision, appealed therefrom to the Appellate Division, Fourth Department, where the decision was affirmed ( Matter of Terminal Ry. of Buffalo, 122 A.D. 896, 106 N.Y.Supp. 659), and to the Court of Appeals with like result ( 192 N.Y. -, 84 N.E. 1121). The railroad company appeared on said appeals in support of the decision of the railroad commissioners. Pending such appeals, and on June 24, 1907, the Terminal Railway Company filed with the board of railroad commissioners another petition setting forth the proceedings previously had, stating that it was necessary for the purposes of its yard construction that it should have six instead of four additional tracks crossing said highways, alleging facts which it was claimed demonstrated that the viaduct provided for by the previous decision should be changed in size, character of structure, and carrying capacity, and that the petitioner should be relieved from a portion of the burden of building and maintaining said viaduct as required by the former decision. Such petition concluded as follows: " Wherefore your petitioner prays that your honorable board shall appoint a time and place for a rehearing, and that said board shall determine: (1) That your petitioner shall have the right to construct and maintain immediately at grade six additional tracks across Clinton street in the town of West Seneca, instead of four as granted by your determination of April 30, 1907; (2) that said determination of this board be modified by providing that the structures shall be of a character to maintain a load of 30 tons; (3) that the said determination shall be so modified as to change the width of the structures exclusive of said walk from 30 to 24 feet; (4) that the said determination shall be so modified as to provide that the roadways and approaches shall be maintained pursuant to the statute governing the maintenance of highways of the towns; (5) that the said determination of this board be modified so as to provide for such roadways upon said viaducts shall be of first-class planking, and that the approaches shall be constructed of a character similar to the adjoining and connecting roadways."

[114 N.Y.S. 638] On June 28, 1907, a hearing was had on said last-mentioned application by the board of railroad commissioners, at which hearing the relator appeared and objected to any action being taken. Counsel were heard at length concerning the matter, but no conclusion was reached by the board of railroad commissioners or disposition made of the pending application. Three days thereafter, and on July 1, 1907, the public service commissions law (Laws 1907, p. 889, c. 429) became effective, and thereby the board of railroad commissioners was abolished and the Public Service Commissions came into existence.

On July 17, 1907, the Public Service Commission of the Second District took up the matter of the Terminal Railway's application for a rehearing before the former board of railroad commissioners. The relator appeared in objection thereto. Extensive arguments were had, and the matter was held in abeyance until June 29, 1908, when the Public Service Commission announced its position in reference to the matter as follows: " Resolved: That a hearing be had at the office of this commission in the city of Buffalo, on the 29th day of June, 1908, upon the application of the Terminal Railway of Buffalo, relative to the order of the former board of railroad commissioners, dated April 30, 1907, concerning the highway crossings of said railway at the Mineral Spring road and Clinton street highway crossings in the town of West Seneca, Erie county. That upon such hearing the commission will take under consideration and receive evidence upon the following matters: (1) The proper construction of the roadway of the steel viaducts directed by said order; (2) the clear width of the roadways upon such viaducts; (3) whether the viaducts upon the Clinton street highway shall be of sufficient strength and capacity to support a 50-ton loaded trolley car; (4) whether the provisions of said order that the Terminal Railway of Buffalo shall maintain the roadway and sidewalk on the said viaducts or bridges irrespective of the provisions of section 64 of the railroad law, is a lawful provision. That copies of this resolution be served by the secretary forthwith upon said railway company and upon all other parties interested."

Thereupon the relator procured an alternative writ of prohibition restraining the respondents from further proceeding in the matter prior to the return to said writ, and on such return the court at Special Term denied the application for an absolute writ and vacated the alternative writ theretofore granted. From such order of the Special Term, the relator appeals.

William J. Evans and William Brennan, Jr., for appellant.

Ledyard P. Hale, for respondent Public Service Commission of the Second District.

Charles A. Pooley, for respondent Terminal Railway of Buffalo.

Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ.

COCHRANE, J.

The question is as to the jurisdiction of the Public Service Commission to rehear and redetermine a matter heard and determined by the board of railroad commissioners, under the grade crossing provisions of Railroad Law (Laws 1897, p. 794, c. 754) § 60 et seq. Section 80 of the Public Service Commissions Law is as follows:

" On and after the taking effect of this act the board of railroad commissioners shall be abolished. All the powers and duties of such board conferred and imposed by any statute of this state shall thereupon be ...

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