SMITH, J.:

By section 2 of the Railroad Law (Laws of 1890, chap. 565, as amd. by Laws of 1892, chap. 676) the certificate of incorporation of the applicant road was required to state "the names and description of the streets, avenues and highways in which the road is to be constructed." By section 59 of that law (added by Laws of 1892, chap. 676, and amd. by Laws of 1895, chap. 545) it is provided that no railroad corporation shall exercise the powers conferred by law upon such corporations or begin the construction of its road "until the directors shall cause a copy of the articles of association to be published in one or more newspapers in each county in which the road is proposed to be located, at least once a week for three successive weeks, and shall file satisfactory proof thereof with the Board of Railroad Commissioners, nor until the Board of Railroad Commissioners shall certify that the foregoing conditions have been complied with, and also that public convenience and a necessity require the construction of said railroad as proposed in said articles of association. The foregoing certificate shall be applied for within six months after the completion of the three weeks' publication hereinbefore provided for."

By section 59a (added by Laws of 1898, chap. 643, and amd. by Laws of 1902, chap. 226) it is provided that upon such an application, where "it shall appear to the Board of Railroad Commissioners, after examination of the proposed route of the applicant company, that public convenience and a necessity do not require the construction of said railroad as proposed in its articles of association, but do require the construction of a part of the said railroad, the Board of Railroad Commissioners may issue its certificate for the construction of such part of the said railroad as seems to it to be required by public convenience and a necessity."

In People ex rel. Steward v. Railroad Commissioners ( 160 N.Y. 202) it is held: "A determination by the railroad commissioners that a certificate of public convenience and necessity shall issue is a final determination of the rights of the owners of land through which the railroad will pass if constructed as to the question of public convenience and necessity." At page 211, PARKER, Ch. J., in writing for the court, says: "The machinery provided by the statute requires the publication of the articles of association in each county through which the proposed railroad is to pass, so that every owner of lands to be affected, as well as the public generally, may have notice of the fact that a tribunal created by the State for that purpose, among others, is about to determine as against them whether public convenience and a necessity require the construction of the proposed railroad."

The commissioners have not changed the proposed route, locating the same definitely in some other place, but have in effect said to the corporation that it might locate its route wheresoever it would, so long only as it kept without the highway and conformed to the route proposed within the cities, villages and hamlets.

If this certificate be within the power of the commissioners to grant, it is difficult to see why they might not authorize the construction of the road between Rochester and Syracuse, leaving to the corporation itself the right to select its route between those cities. The difference is in degree and not in principle. To the commissioners is left by the law the determination of the public necessity and convenience of the route proposed in the articles of association. Under the certificate as given the route which they shall select between the hamlets, villages and cities has not been approved by the Board of Railroad Commissioners. The corporation is left free to choose that part of its route without their approval. This, we think, is opposed both to the spirit and the letter of the law. The necessity or convenience of these interurban roads depends largely upon the route taken between the villages, hamlets and cities. In the case at bar the necessities of travel from village to village, or village to city or city to city, are fairly well met by the roads already in existence. It is important then that the Board of Railroad Commissioners shall have before them the specific route proposed by the applicant company and shall approve or disapprove of that route.

In People ex rel. Depew R. Co. v. Commissioners ( 4 App. Div. 259) Justice HERRICK, in writing for this court in reference to the act, said (at p. 263): "Under that the railroad commissioners have to pass upon the specific application of each company; they are to determine whether `public convenience and necessity require the construction of said railroad, as proposed in said articles of association' of the petitioning company; that is something more than determining whether public necessity and convenience require the construction of a railroad between the points mentioned in the articles of association as the proposed termini of their road. It means something more than merely determining whether public convenience and necessity require the building of any road between the proposed termini; they must determine whether public convenience and necessity require the construction of the specific road proposed in the articles of association of the petitioning corporation."

In examining this question it is important to consider the effect of the holding in the case of People ex rel. Steward v. Railroad Commissioners ( supra). The determination of the Board of Railroad Commissioners is a determination once and for all of the necessity of the proposed road. Landowners whose land the company would appropriate for the purposes of the road can no longer resist that appropriation on the ground that the location of the road upon their premises is unnecessary. In view of this holding it would seem to be of the utmost importance that by this publication each landowner should have notice that his land is sought to be taken to the end that he may contest before the Board of Railroad Commissioners the necessity of the road.

Also, in examining this question, the provisions of section 59a of the Railroad Law (as amd. supra) have, I think, some significance. It is therein provided that the Board of Railroad Commissioners may grant a modified certificate approving of a part only of the proposed road. If the maxim expressio unius est exclusio alterius be applied there would seem to be fairly indicated an intention to limit the right of the commissioners in the granting of their certificate to a variation from the route proposed in the articles of association only to the extent of authorizing the granting of the certificate as to a part of the route. Against such a variation the reasons suggested against the granting of the certificate in the case at bar would be without force.

There are cases, in which the Board of Railroad Commissioners have conditioned their certificates, where the certificates have been upheld by the court, but in no case has a condition attached compelled a change of the route originally proposed.

The reading of the statute seems to require the granting of the certificate only as to the route proposed in the articles of association except in the single instance specified in section 59a. It is for the Legislature and not the court to grant to the commissioners more extended powers, and there is apparently substantial reason for denying to them the power which they have assumed here to exercise.

We are of the opinion, therefore, that the determination of the Board of Railroad Commissioners, as expressed in their certificate, should be reversed.

All concurred, except CHESTER, J., dissenting in memorandum in which HOUGHTON, J., concurred.