People ex rel. Babylon Railroad v. Board of Railroad Com'rs

The relator is a street-surface railroad company incorporated by special act (chapter 517, Laws 1871) to construct, maintain, and operate a railroad through the streets of the village of' Babylon, L. L, and to operate the same “by horses, mules, or dummy engines.” It constructed its railroad, and operated it by horse power-In September, 1897, having obtained the consent of the owners of one-half of the property bounded upon its line of railroad, it applied to this state board of railroad commissioners for the approval by the hoard of a change of its motive power from horse power to the “kinetic motor.” After a hearing duly had, and evidence taken, the hoard refused its consent, assigning two grounds therefor: (1) That the-kinetic motor is “a locomotive steam power,” and its use prohibited

“Any street surface railroad may operate any portion of its road by animal or horse power, or by cable, electricity, or any power other than locomotive steam power, which may be approved by the state board of railroad commissioners, and consented to by the owners of one-half of the property bounded on that portion of the railroad with respect to which a change of motive power is proposed.”

Section 90 of the act subjects every existing street-surface railroad to the above provision, and hence the charter of the relator allowing it to use dummy engines is modified accordingly, certainly so far as substituting such power, after the railroad law took effect, for the horse power in use when said law took effect. In view of the power which the constitution reserves to the legislature to alter or repeal statutes creating corporations (article 8, § 1), the suggestion that the special act creating this corporation, and its acceptance of the conditions, created a contract, is not well founded. Whether, if the dummy engine had been in use when the railroad law took effect, it would have been necessary to procure the approval of the board to the continuance of its use, we need not inquire. We think, however, that the kinetic motor of the relator is not the “locomotive steam power” contemplated by the statute. The statute evidently contemplates the locomotive steam engine commonly employed upon other than street-surface railroads,-—an engine obviously unsuitable and unsafe for use upon the surface of city and village streets. The relator’s motor is so constructed and operated as to be free from the noise, smoke, cinders, and escaping steam of the ordinary locomotive steam engine. It is a steam engine, but the steam is generated from water heated in a stationary boiler, and transferred to a reservoir under the car and under the motor, and kept from cooling by a slow hard coal fire beneath the reservoir. It is a sort of dummy steam locomotive engine, forming part of the car, and is essentially different from the well-known “locomotive steam power” mentioned in the statute. It may be yet in its experimental stage, but the requisite consents to its use of property owners along the line of the road seem to afford some evidence that the property owners have no fear upon that account.

We think, when the board of railroad commissioners decided that the statutes forbade them to aive their approval, they misconceived the law. The relator had the right to have its application considered free from such misconception, and hence the determination should be reversed. We do not think that the statute requires the board to withhold its approval because the motor is still in its experimental stages, or because the relator is controlled by persons interested in this motor system. Unless the rights or safety of the public or of its members are exposed to danger, it is not unreasonable to tolerate experiments having for their object private gain through a new means of public benefit. These, however, are matters which the statute

Determination reversed, with $50 costs and disbursements. All. concur.