In re Port Chester Street Railway Co.

This court on the 29th day of November, 1898, issued an order appointing three commissioners, under the provisions of section 94 of the railroad law, and section 18 of article 3 of the constitution, upon the application of the Port Chester Street-Railway Company, to determine whether the road which it was proposed to construct should be built. This order was, on the return of an order to show cause, amended in such a manner as to submit to the commissioners the question whether the road ought to be constructed over the entire route, instead of limiting it to particular streets, as in the original order. On the 6th day of May, 1899, a report was made, signed by two of the commissioners, in which it was held that the road ought to be constructed through and along the

It is not necessary to enter into any discussion of the powers of this court to confirm the report of its commissioners, upon a report of a majority of the commission. It was held in Re Kings Co. El. Ry. Co., 82 N. Y. 95 , that the general term of the supreme court was a tribunal of original jurisdiction, to the extent of having the power to review the action and conclusion of its commissioners; and we are of opinion that the constitution contemplates that the determination to be reached in matters of this character is that of the court, as well as that of the commissioners. All of the purposes of the commission have been fulfilled when the commissioners, after notice to all parties, have heard the evidence and have made their report to this court, whether that report shall be unanimous, or by a majority of such commissioners. The determination of the commissioners is without force or effect until it has received the sanction of this court, and the fact that it is necessary for this court to confirm the report devolves upon it the duty of determining for itself whether the facts disclosed to the commissioners are sufficient to justify the granting of the petition. Taking this view of the question, we have considered the evidence before the commissioners; and we have reached the conclusion that no considerations of a public nature demand the construction of this proposed railroad over the particular route selected by the projectors of the enterprise, and that the report of the commissioners ought not, therefore, to be confirmed. The roadways over which the proposed street railroad is to pass, if this report should be confirmed, have been improved at private expense; large sums of money have been expended by individuals to make a high-grade driveway through the town of Rye, and leading out to the summer homes of a large number of people, who have made investments and fitted up handsome residences, greatly to the advantage of this particular section; and while the highways are the common nroperty of the people, and considerations of a private nature must yield to public necessity or convenience, there is no good reason why these particular roadways, improved at private expense, should be appropriated by a corporation, when there are other ways which will answer equally as well every purpose of a public nature. While it is true that the only question before the commissioners was whether the street railroad should be constructed over the particular route selected by the company, it was proper, in determining this question, to consider whether there were other routes equally available, and which were calculated to accommodate the public in an equal degree, if we assume that a necessity for the construction of a street railroad existed at all; and we are of opinion that the evidence disclosed that there were other routes pre

The motion to confirm the report of the majority of the commissioners is denied.

Application to confirm report of commissioners denied, with $10 costs and disbursements. All concur.