cluding the salaries of the commissioners and arbitrators, and to provide for such forfeitures as may be adjudged. § 2. Any forfeiture made by any company party hereto, under the rules, shall be taken from the sums contributed by such company and charged in whole to its account. If its deposit at the time, exclusive of its said original contribution of five thousand dollars, shall be insufficient, it shall pay to the managers such deficiency within fifteen days after the forfeiture is finally adjudged. § 3. The balance of said deposits remaining at the expiration of this agreement shall be divided between the companies then parties hereto in the ratio in which they have contributed, less the amounts forfeited. ARTICLE XVIII. RETIREMENT FROM THE AGREEMENT. Any party retiring from this agreement before the final completion of the time herein fixed, except by unanimous consent of the parties hereto, shall not be entitled to any refund from the residue of deposits remaining at the close of this agreement, but if any company fails to observe and be governed by this agreement, which fact shall be determined by the ar bitrators, and then fails to pay its forfeitures within fifteen days after such decision of the arbitrators, then any other company may withdraw from this agreement upon giving thirty days' written notice to the managers, and such company so withdrawing shall be entitled to the residue of the funds it has contributed. ARTICLE XIX. BOARD OF ARBITRATION. SECTION 1. There shall be a permanent board of arbitration consisting of three disinterested persons, to which appeals shall be made as to all questions, including differentials, arising under this agreement, except the determination of rates and fares. § 2. All differences between the parties hereto as to any lawful measure necessary to carry out the objects of the association, except as to rates and fares, shall be submitted to and be finally decided by the arbi trators. § 3. Pending decisions of the arbitrators the decisions and orders of the board of control and managers shall prevail. § 4. Hearings shall be had upon all questions arbitrated, under the rules established by the arbitrators and approved by the board of control, and the decision of the arbitrators or of any two of them shall be final. ARTICLE XX. AMENDMENTS. Amendments to this agreement shall only be made by the unanimous vote of the parties hereto. ARTICLE XXI. WHEN AGREEMENT BECOMES EFFECTIVE AND ITS DURATION. SECTION 1. This agreement shall not be effective until it shall have been approved by the boards of directors of the several companies parties hereto. Certified copies of resolutions giving such approval shall be filed with the managers. § 2. This agreement shall take effect January 1st, 1896, and shall continue in existence for five years thereafter. After said period, any company may retire therefrom upon giving ninety days' written notice of its desire to do so. The Philadelphia and Reading Railroad Company being legally incapacitated from signing this contract at present, but having so far as it can do so indicated through its president and receivers and proposed, Reorganization Committee its desire to act in harmony therewith and observe its terms, it is understood that the parties hereto will waive the signature of that company until it is reorganized; and be bound by this agreement only so long as that company observes its conditions, which fact shall be determined by the arbitrators provided herein. In witness whereof, the corporations, parties hereto, have caused the foregoing agreement to be signed by their respective presidents and the seal of their respective corporations to be attached hereto. [Here follows the signatures of the parties to the agreement.] SUPREME COURT DECISION IN THE MATTER OF The Depew and Southwestern Railroad for a Certificate Pursuant to Section 59 of the Railroad Law. Handed down Saturday, December 28th, 1895. Supreme Court, General Term, Fifth Department. IN THE MATTER OF THE APPLICATION OF THE DEPEW AND SOUTH- SECTION 59 OF THE RAILROAD LAW. PURSUANT TO Application by the directors of the Depew and Southwestern Railroad Company pursuant to section 59 of Chapter 676 of Laws of 1892, for direction to the Board of Railroad Commissioners to issue a certificate that the public convenience and necessity requires the construction of the railroad as proposed in the articles of association of that company following the denial by the Board of the application of the company for such certificate. Wilson S. Bissell for the motion. Daniel H. McMillan opposed. BRADLEY, J.-The Depew and Southwestern Railroad Company was duly incorporated, and the termini of its proposed line of railroad were Depew and Blasdell in the County of Erie. The Terminal Railway of Buffalo was also duly incorporated and the proposed termini were the same. Each company made application to the Board of Railroad Commissioners for a certificate under the statute which provides that "No railroad corporation hereafter formed under the laws of this state shall exercise the powers conferred by law upon such corporation or begin the construction of its road until the Board of Railroad Commissioners shall certify amongst other things' that the public convenience and necessity requires the construction of said railroad as proposed in said articles of association." L. 1892, Chapter 676, Section 59. The two applications were heard together, and the Board of Railroad Commissioners granted the application of the Terminal Railway, and issued certificate to the effect that the public convenience and necessity required the construction of the railroad proposed by the articles of association of that company. The Board denied the application of the Depew and Southwestern Railroad Company. The case was brought here pursuant to the statute which provides that " After a refusal to grant such certificate, the Board shall certify a copy of all maps and papers on file in its office and of findings of the Board when so requested by the directors" who "may thereupon present the same to the General Term of the Supreme Court of the department within which said road is proposed in whole or in part to be constructed, and said General Term shall have power, in its discretion, to order said Board for reasons stated, to issue said certificate, and it shall be issued accordingly." L. 1892, Chapter 676, Section 59. The convenience and necessity of a railroad from Depew to Blasdell is not questioned, and for the purpose of facilitating transportation of freight both east and west between New York and Chicago, its importance is apparent. It will shorten the distance about six miles and the time about that number of hours, and will obviate the necessity and inconvenience of taking freight cars through the city of Buffalo, to interchange with connecting roads. There are five railroads passing through Blasdell to be brought into more immediate or direct connection with four at Depew by the proposed line between those two places. Both companies in their organization complied in all respects with the statute, and did all that was essential preliminarily to the application to the Board, proceeded in good faith, and had the purpose and ability to construct the road proposed by their articles of association. But the public convenience and necessity required the construction of only one line of railroad having those termini. The question as treated by the Board was one of preference between them. In this it is insisted on the part of the Depew and Southwestern Railroad Company, that the Board misapprehended its powers given by the statute and in violation of it issued the certificate in behalf of the Terminal Company that it was within the province of the Board to determine whether or not the public convenience and necessity required a railroad having the proposed termini, and that when that was determined in the affirmative the Delaware and Southwestern Company was, by reason of the priority of its corporate creation, entitled to the benefit of the certificate which the Board was thereupon required to issue. The directors of both companies proceeded concurrently in process of organization. While the articles of association of the Terminal Company were executed two days prior to those of the Depew and Southwestern Railroad Company, the latter was by the filing of them incorporated two days earlier than was the other company. The application of each of the companies for hearing was filed with the Board the same day, the publication of the articles of association of both companies occupied the same time, the notices for hearing were given at and for the same time, and the applications were heard together. It may be that the situation presented in this case was not contemplated by the statute. And in case of competing companies in applications made to the Board there may be some reason in the matter of fairness and propriety for granting the certificate to the one first incorporated, other things being equal as between them. But it is not seen that there is any vested legal right of any one of two or more companies making applications, concurrently heard and considered by the Board, to have the benefit of a certificate upon its determination that public convenience and necessity for the proposed railroad exists. Without the aid of some statute to that effect the priority in such case of corporate existence does not necessarily furnish priority of local right as against a competing application to the Board. There is no statute in support of such a proposition applicable to that stage of the corporate action of a railroad company. While the creation of a railroad corporation is a right to be exercised in the manner provided by the statute, the right to exercise the power of proceeding to the construction of its proposed railroad is subject to and dependent upon the supervisory consideration of the Board and its certificate preliminarily made that "public convenience and necessity requires the construction of said railroad as proposed in said articles of association." This has reference to the articles of association of some particular company to be mentioned in the certificate. It would not answer the purpose of the statute for the Board to certify merely that public convenience and necessity required the construction of a railroad having the termini mentioned. It is to certify that such convenience and necessity require the construction of the road as proposed in said articles, and the certificate is apparently available only to the company having the articles thus mentioned in the certificate. And although the termini described in the articles of both companies were the same, it may be assumed that as represented by the maps and profiles there was some distinguishing features in the route or line of the road as proposed by the companies. In reaching the conclusion essential to the issuing of a certificate the Board act judicially, and when, after refusal to grant it, the matter is brought to the General Term, the action of the court is in the nature of a review of the determination of the Board, and the burden is with the moving company to make it affirmatively appear that the Board erred in its conclusion and in its refusal of the certificate upon the facts as presented to it. The reasons given for the action of the Board do not necessarily control the disposition to be made of the case on the review unless the facts required a different conclusion on the hearing. It is not enough to overcome the refusal there that the facts merely permitted the issuing of a certificate nor unless the determination of the Board was contrary to the clear weight of the evidence. Its judgment is entitled to support so far as it is fairly justified by the facts, the same as is that of any other tribunal subjected to review. People vs. Ulster & D. R.R. Co., 58 Hun, 267; Matter of New Hamburgh |