Opinion
January 22, 1909.
William J. Evans and William Brennan, Jr., for the appellant.
Ledyard P. Hale, for the respondent, The Public Service Commission.
Charles A. Pooley, for the respondent, Terminal Railway of Buffalo.
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 the Railroad Law (§§ 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 exercised and performed by the public service commissions." The grade-crossing provisions of the Railroad Law under which the proceedings before the Railroad Commissioners were had which resulted in their decision of April 30, 1907, are left unrepealed, except that by said section 80 of the Public Service Commissions Law said Board of Railroad Commissioners is abolished, but the powers and duties conferred on said board are to be exercised and performed by the Public Service Commissions.
Section 85 of the Public Service Commissions Law provides: "Any investigation, examination or proceeding undertaken, commenced or instituted by the said boards or commission, or either of them (which includes the board of railroad commissioners), prior to the taking effect of this act, may be conducted and continued to a final determination by the proper public service commission in the same manner, under the same terms and conditions, and with the same effect as though such boards or commission had not been abolished."
There seems to be no doubt, therefore, but that the Public Service Commissions have full power and jurisdiction to do whatever, under the grade-crossing provisions of the Railroad Law, the former Board of Railroad Commissioners might have done, and it is immaterial whether or not the subject-matter of their proposed action was pending undetermined before the Board of Railroad Commissioners. If the latter board being in existence would have jurisdiction to rehear the proceeding instituted by the Terminal Railway Company and make another decision in respect thereto the Public Service Commissions under the statutes referred to possess like jurisdiction. This requires us to consider the jurisdiction of the Board of Railroad Commissioners to rehear the controversy.
The Public Service Commission does not propose to arbitrarily modify or change the decision of the board which preceded it but to rehear the matter ab initio in certain specified particulars on new evidence and thereby arrive at an independent result. The application of the Terminal Railway Company to the former Board of Railroad Commissioners was for a "rehearing" of the matter decided by said board. The purpose of the Public Service Commission as evidenced by its disposition of that application and as announced by it is to "receive evidence" on matters included within the decision of the Board of Railroad Commissioners.
As to the power of the Board of Railroad Commissioners to reinvestigate and hear and decide again on new testimony matters once decided by such board concerning grade crossings and the elimination thereof we think from an examination of the grade crossing provisions of the Railroad Law and from the nature of the duties and responsibilities of such board that such power existed and in the nature of things must have existed. There is more reason why such board should have had great latitude in respect to such matters than is usually exercised in the courts concerning ordinary controversies between individuals. The Board of Railroad Commissioners was clothed with grave responsibilities, wide discretion and comprehensive supervisory powers in respect to grade crossings and the elimination thereof not merely with reference to private rights and interests but also with reference to the public safety, convenience and utility. Such board was concerned with matters of public policy and interest. It not only determined as to the plan and project of the enterprise but it was expressly provided in the statute that the work should be performed "subject to the supervision of and approval of the Board of Railroad Commissioners." Plans and specifications were required to be submitted to it for its approval before letting any contract. The proposals of contractors might be rejected by the board. It was authorized to employ experts and engineers in the supervision and accomplishment of the work. It may properly be said that the work was planned, designed and executed under the authority and supervision of the board. It is true that many of these matters related to details of construction and it is doubtless true that the Board of Public Service Commissioners in the present instance contemplates a reinvestigation to a certain extent which involves the substance or essence of the decision which has been made and which goes to the foundation of such decision. But when it is considered that the board was responsible not only for details of construction but for the existence of the project, relating as it did to matters of public safety and convenience and to so many widely diversified interests, and that it had plenary and comprehensive powers in reference to such project from its inception, there can be little doubt but that the statutes by clear implication conferred on the board the power to change its own plans and decisions whether relating to substance or detail. The board could not foresee and anticipate every emergency which might present itself or make proper provision for conditions which might arise in the future. Judicial and administrative powers and duties are so closely interwoven in such cases that it is sometimes difficult to draw the line of demarcation. It was evidently the purpose of the statute to surround and clothe the board with continuing powers and duties and to give it the right to change its decisions in respect to all matters involved, whether of substance or detail, whenever experience, observation or subsequent information should demonstrate their unwisdom. Such power was necessary in the interests of municipalities no less than in the interests of railroad companies. Suppose it had become apparent after the decision in question that the viaduct would be too small for necessary traffic or that it would be unsafe for public use, does the relator claim that the Board of Railroad Commissioners would have been powerless to correct this mistake simply because it had already decided that public use and public safety would be properly subserved by a smaller or a weaker structure? In the present instance it is claimed by the Terminal Railway Company that the decision as made requires an unnecessary expenditure of approximately half a million dollars without any corresponding benefit to the municipalities affected. The Public Service Commission proposes to investigate this allegation and to receive evidence in reference thereto, and should the claim be well founded there would be a strange remissness in the statutes if the board was without power to grant relief. The policy of the State was to vest extensive powers in the Board of Railroad Commissioners in reference to these matters, and if such board was without power to reconsider a matter simply because it had once reached a conclusion in reference thereto its usefulness must have been seriously hampered and the policy of the law largely thwarted.
It is true that section 22 of the Public Service Commissions Law expressly provides for a rehearing in respect to any determination and such express power was not in terms conferred on the former Board of Railroad Commissioners. But the Public Service Commissioners have conferred upon them the powers and duties of several boards and in respect to manifold matters other than grade crossings, and no inference can, therefore, be drawn from the provisions of said section 22 that the Board of Railroad Commissioners could not have granted the rehearing in question. We think the power of the Board of Railroad Commissioners to change its decisions in reference to matters pertaining to grade crossings, after further investigation, was clearly implied from the provisions of the statutes having in view the nature and character of the duties such board was required to perform. Undoubtedly it was necessary that such change should be effected with due regard to the rights of all parties and in such a manner as to conserve such rights, but we think the power clearly existed and that the Board of Public Service Commissioners now succeeds to such power and that in the proper exercise thereof it should not be interrupted.
The appellant places particular emphasis on the fact that the decision of the Board of Railroad Commissioners safely ran the gauntlet of the appellate courts. All that the appellate courts held in reference to such decision was that the Railroad Commissioners had power to make the same and that as against the appeal of the appellant there was no improper exercise of such power. That is apparent from the opinion in the case of Matter of Terminal Railway ( 122 App. Div. 59), which was a companion case to the present one and on which opinion the appeal of the appellant herein in the Appellate Division was determined. It was decided merely that the appellant had no cause for complaint. It does not follow that if the decision had been more favorable to the railway company such decision would not likewise have been affirmed. The courts in these cases are accustomed to leave very much to the discretion and wisdom of the Commissioners and to permit a wide latitude in the exercise thereof. The affirmances by the courts were based on the former evidence. And if on a subsequent investigation it should appear that some other disposition of the matter is more just and appropriate for all interests concerned the former action of the appellate courts presents no obstacle.
The point is strenuously urged by the respondents that by this writ of prohibition the appellant has mistaken its remedy. We have preferred to treat the matter as properly before us that we might dispose of the case on its merits.
The final order should be affirmed, with costs.
Final order unanimously affirmed, with costs.