App. Div.] THE PEOPLE OF THE STATE OF NEW YORK ex rel. BABYLON RAIL- Board of Railroad Commissioners - application by a street railroad company to On an application to the Board of Railroad Commissioners by a street surface railroad company authorized by special act (Chap. 517 of the Laws of 1871) to operate its road through the streets of a village "by horses, mules or dummy engines," for permission to change its motive power from horses to kinetic stored steam power, it is not a valid objection that such last-mentioned power is "a locomotive steam power," the use of which is prohibited by section 100 of the Railroad Law (Chap. 565 of the Laws of 1890); nor is the Board of Railroad Commissioners required by statute to withhold its approval of such an application because the motor proposed to be used is still in its experimental stages, or because the corporation applying to use it is controlled by persons interested in such motor system. The action of the Board of Railroad Commissioners in determining such a question is judicial. CERTIORARI issued out of the Appellate Division of the Supreme Court in the third judicial department, and attested on the 13th day of January, 1898, directed to Ashley W. Cole and others, composing the Board of Railroad Commissioners of the State of New York, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings in denying the application of the relator for permission to change its motive power from horses to kinetic stored steam power. Charles L. Easton and Robert G. Ingersoll, for relator. T. E. Hancock, Attorney-General, and G. D. B. Hasbrouck, Deputy Attorney-General, for the respondents. LANDON, J.: The relator is a street surface railroad company, incorporated by special act (Chap. 517, Laws of 1871) to construct, maintain and operate a railroad through the streets of the village of Babylon 32 179 32 188 32 179 158a 711 32 179 160a 207 THIRD DEPARTMENT, JULY TERM, 1898. [Vol. 32. Long Island, 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 the State Board of Railroad Commissioners for the approval by the board of a change of its motive power from horse power to the "kinetic" motor. After a hearing duly had and evidence taken, the board refused its consent, assigning two grounds therefor, (1) that the kinetic motor is "a locomotive steam power' and its use prohibited by section 100 of the Railroad Law; (2) it did not appear from the testimony "that the system has been demonstrated to be a practical or practicable one-on the contrary, it is wholly in its experimental stages," and that the relator "is controlled by persons interested in this motor system." Section 100 of the Railroad Law (Chap. 565, Laws of 1890) provides that "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 (Art. 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 obvi App. Div.] THIRD DEPARTMENT, JULY TERM, 1898. ously 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 by property owners along the line of the road to its use 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 statute forbade them to give 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 leaves to the discretion of the Board of Railroad Commissioners, and the court will not revise or review its. exercise of discretion in these respects so long as no statutory rule or legal principle affecting the rights of the relator is violated. The objection is taken in the return and was pressed upon the argument that the action of the board was not in its nature judicial, but was either legislative or administrative, and, therefore, not reviewable by the court. It was not legislative, since it was not law making in its nature. It was not executive or ministerial, because the statute does not prescribe that the board shall approve the application or disapprove it, according as certain consents shall be given or withheld, or certain formal proofs made or left unmade (People ex rel. Stapleton v. Bell, 119 N. Y. 175); but it was judicial because the statute makes the board a tribunal to hear and determine the THIRD DEPARTMENT, JULY TERM, 1898. [Vol. 32. matter. (People v. Long Island R. R. Co., 134 N. Y. 506.) There was a public trial, after due notice to parties interested; witnesses were examined, counsel upon both sides heard, and judgment or determination pronounced. The statute permits, if it does not absolutely enjoin, such procedure. (Art. 6, Railroad Law.) Thus the requirements of due process of law are observed, very much as in People ex rel. Burnham v. Jones (112 N. Y. 597). The decision upon the application has the force of a self-executing judgment, since it grants or withholds a privilege or franchise. In this respect it is unlike such of the decisions and recommendations of the board as can be enforced only by the aid of the court. (§ 162.) It is a part of our State system to commit many governmental powers, involving judicial, executive and ministerial functions, to a single officer, or a board or commission, the exercise of the executive or ministerial duty being in some cases dependent upon the exercise of the judicial function. Our Constitution, unlike that of the United States, does not commit the whole judicial power to the courts in the first instance, hence our system of review by certiorari of "the determination of a body or officer." (Code Civ. Proc. § 2120, et seq.) If such a body, in the exercise of its functions, renders its determination in pursuance of a misapprehension of the law, such error should be corrected. (Id. § 2140, subd. 3.) The determination of the Railroad Commissioners should be reversed, with fifty dollars costs and disbursements. All concurred. Determination of Railroad Commissioners reversed, with fifty dollars costs. App. Div.] THIRD DEPARTMENT, JULY Í ERM, 1898. In the Matter of the Probate of the Last Will and Testament of THE MISSIONARY SOCIETY OF THE METHODIST EPISCOPAL CHURCH, Evidence declarations of a testatrix, when competent to identify a beneficiary named in her will. Where a testatrix has given the residue of her estate to the Home Missionary Society," adding to the bequest I mean the Methodist Home Missionary Society," declarations of the testatrix to the effect that "she had remembered the Free Methodist Church of Saratoga Springs and the Home Missionary Society of the Free Methodist Church of Saratoga Springs" in her will, there being in existence an unincorporated society known as the "Home Missionary Society" connected with the Free Methodist Church of Saratoga Springs, are, on an application made by a corporation, "the Missionary Society of the Methodist Episcopal Church," for such residue of the estate, competent for the purpose of identifying the residuary legatee. APPEAL by The Missionary Society of the Methodist Episcopal Church from so much of a decree of the Surrogate's Court of Saratoga county, entered in said Surrogate's Court on the 5th day of August, 1897, admitting to prebate the will of Sarah D. Wheeler, deceased, as adjudges that the appellant is not the beneficiary named in the 10th clause of such will; that said devise failed for uncertainty of the legatee; and also from that portion of the decree awarding allowances to the special guardians. The appellant was incorporated by chapter 136, Laws of 1839, which declares: "The object of the said corporation is to diffuse more generally the blessings of education, civilization and Christianity throughout the United States." It uses its funds in both home and foreign missions, and is an important agency of the churches and membership of the Methodist Episcopal Church in carrying on such missionary work. The testatrix was a maiden lady upwards of seventy years of age. She resided upon a farm in the town of Greenfield, Saratoga county, nearly all her life, spending her winters in Saratoga Springs, until six or seven years before her death, when 32 183 a161a65 |