People ex rel. New York Cent. & H.R.R. Co. v. Pub. Serv. Comm'n, Second Dist.

Decision Date06 April 1909
Citation195 N.Y. 157,88 N.E. 261
PartiesPEOPLE ex rel. NEW YORK CENT. & H. R. R. CO. v. PUBLIC SERVICE COMMISSION, SECOND DIST., et al.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from Supreme Court, Appellate Division, Third Department.

Certiorari, on the relation of the New York Central & Hudson River Railroad Company, against the Public Service Commission, Second District, as successors of the State Board of Railroad Commissioners, and others, to review the determination of the Board of Railroad Commissioners granting a certificate of convenience and necessity for the road of the Buffalo, Niagara Falls & Rochester Railway Company under the railroad law (Laws 1890, p. 1082, c. 565) as amended by Laws 1895, p. 317, c. 545. From an order of the Appellate Division (122 App. Div. 283,106 N. Y. Supp. 968) annulling the determination, defendants appeal. Affirmed.

The Buffalo, Niagara Falls & Rochester Railway Company was incorporated in 1900, for the purpose of building and operating an electric railway from Rochester to Lockport, Niagara Falls, and Buffalo, a total Distance of 120 miles. After filing the articles of incorporation, application was made to the State Board of Railroad Commissioners, under section 59 of the railroad law (Laws 1890, p. 1082, c. 565, added by Laws 1892, p. 1395, c. 676, and amended by Laws 1895, p. 317, c. 545), for a certificate, as therein prescribed, ‘that public convenience and a necessity require the construction of the said railroad as proposed in said articles of association.’ Hearings were had, at which the relator, the New York Central & Hudson River Railroad Company, and others appeared and opposed the application. On July 15, 1901, the Board of Railroad Commissioners determined to grant the certificate; but it was not issued, by delivery to the applicant, until August 14, 1905, because of its failure to furnish the board with a receipt showing the payment of the organization tax required by statute. On November 1, 1905, and within four months of the time when the certificate was issued and delivered, this relator applied for, and obtained, a writ of certiorari directed to the Board of Railroad Commissioners to review the proceedings. The petition for the writ alleged that the Buffalo, Niagara Falls & Rochester Railway Company was not, at the time of the filing of its certificate of incorporation, a legally organized corporation, in that the ‘ten per cent. of the minimum amount of capital stock required by law had not been paid in good faith, in cash, to the directors named in the certificate.’ The return to the writ, after certain formal admissions and denials of the allegations of the relator, set forth, ‘as a part of this return, all of the proceedings of the Buffalo, Niagara Falls & Rochester Railway Company, the filing of its articles of incorporation and other preliminary proceedings required by statute, and all of the testimony taken upon the hearing before the Railroad Commissioners, and all of the exhibits in connection therewith.’ The Appellate Division reversed and annulled the determination of the Board of Railroad Commissioners, ‘upon the ground that we determine, upon the law and the facts, that the said Buffalo, Niagara Falls & Rochester Railway Company had not, at the time of the filing of its certificate of incorporation, paid at least 10 per cent. of the minimum amount of capital stock authorized by law, and in good faith, and in cash, to the directors, as required by the railroad law.’ From this order of the Appellate Division, the Buffalo, Niagara Falls & Rochester Railway Company and its receiver, who had been meanwhile appointed, appealed to this court.James M. E. O'Grady, Edward R. O'Malley, and Harlan W. Rippey, for appellants.

Daniel M. Beach, for respondent.

GRAY, J. (after stating the facts as above).

The appellant insists that the relator did not sue out the writ of certiorari within the time prescribed by law. Section 2125 of the Code of Civil Procedure provides that the writ ‘must be granted and served, within four calendar months after the determination to be reviewed becomes final and binding, upon the relator.’ The certificate of the board was announced and was dated as of July 15, 1901, but it was not delivered to the appellant until August 14, 1905. The argument is that, within the meaning of the statute, a determination was made when the board decided that public convenience and a necessity required the construction of the road, and that the time within which the writ might be granted commenced to run then. Included with the return is an extract from the minutes of a meeting of the Railroad Commissioners on August 14, 1905, in which it is stated that the certificate, which was granted, ‘but which was not issued owing to the company having failed to pay the organization tax, was to-day issued and delivered, * * * there having been filed with the board a receipt from the State Comptroller and State Treasurer showing that the organization tax of the company had been paid.’ Section 180 of the general tax law (Laws 1896, p. 855, c. 908, as amended by Laws 1906, p. 1432, c. 524) provides for the payment of an organization tax by every stock corporation, and forbids the filing by the Secretary of State, or county clerk, of any certificate of incorporation, until he has been furnished with a receipt for the tax from the State Treasurer, except in the case of a railroad corporation. A railroad corporation need not pay such a tax at the time of filing its certificate of incorporation, but, the section provides, that the certificate required by the railroad law, authorizing the construction of the road, ‘shall not be granted by the Board of Railroad Commissioners until it is furnished with a receipt for such tax from the State Treasurer.’ In refusing, therefore, to grant-that is, to deliver-the certificate,...

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