FIRST DEPARTMENT, DECEMBER, 1904. [Vol. 99. review of the decision of a subordinate tribunal, and not as it would an original application made to it in the first instance. The burden rests upon the petitioner to show affirmatively that the commissioners erred in their determination, and the commissioners should be credited with some technical knowledge which this court is not presumed to possess." In Matter of Amsterdam, J. & G. R. R. Co. (86 Hun, 578), HERRICK, J., quoted with approval the rule above stated, and added: "I concur with that view of the province of this court in these proceedings. Unless the court can see that the decision of the Board of Railroad Commissioners was founded upon erroneous legal principles, or that it proceeded contrary to the clear weight of evidence in arriving at its conclusion upon any question of fact, or that it has abused the discretion vested in it, and has arbitrarily refused to issue the necessary certificate, I do not think that the court should reverse its determination and compel it to issue a certificate." The same rule was announced in Matter of Depew & Southwestern R. R. Co. (92 IIun, 406), in the fifth department of the General Term, in an opinion delivered by BRADLEY, J., and was reiterated by the Appellate Division in the fourth department in Matter of Auburn & Western R. Co. (37 App. Div. 162), and by the Appellate Division in the second department in Matter of Kings, Queens & Suffolk R. R. Co. (supra). Applying this rule to the evidence as it was developed in this case we think that the conclusion reached by the majority of the commissioners finds abundant justification. If we were examining this case as an original question upon the merits we should reach the conclusion that the application was properly denied. The policy of the Legislature with respect to authorizing the construction of a new railroad in territory where a railroad already exists and is being operated has been steadily progressive. In the beginning consent to the construction was only required from owners of property through which the proposed road was to run, and from local authorities granting the right. In practical operation many franchises were obtained for the construction of railroads which the promoters and persons obtaining the grant never intended to construct, but to acquire and hold the same for purposes of speculation. The abuses in this regard prompted the Legislature from time to time to pass laws regulating and controlling the subject, and the granting of a franchise to construct a App. Div.] FIRST DEPARTMENT, DECEMBER, 1904. road under the present law is made subject, not alone to the consent of property owners and local authorities, but the Board of Railroad Commissioners are vested with control, subject to review by the courts as to whether the public convenience and a necessity require the construction of the line. Such authority is now found expressed in section 59 of the Railroad Law and also in section 59a of said statute (added by Laws of 1898, chap. 643, and amd. by Laws of 1902, chap. 226). In practical administration of this power the Railroad Commissioners are called upon to consider and protect vested interests against reckless or unfair competition, produced by the construction of new lines, the paralleling of existing lines. and to protect vested interests in railroad property against the attacks of promoters, who, in the main, are largely actuated in foreing existing railroads to pay tribute in order to protect their property. No railroad should now be permitted to be constructed in a territory where one already exists which is reasonably supplying existing needs, or which by extensions may meet the demands of the general public. When such a condition exists, public convenience and a necessity do not require added lines of road. Such are the principles which have been acted upon by the Railroad Commissioners, and which have been expressed by the courts whenever the question has arisen. (Matter of Empire City Traction Co., 4 App. Div. 103; People ex rel. Steward v. Railroad Commissioners, 160 N. Y. 202; Matter of Amsterdam, J. & G. R. R. Co., supra; Matter of Auburn & Western R. Co., supra.) There may be added to these general considerations a further suggestion that it is also the policy of the law with respect to street surface railroads that so far as possible in large cities and towns the railroads existing therein shall by a system of transfers transport passengers between all points over the lines operated by a single company for a single fare, and to make that fare as low as is permissible and make fair return upon the money invested in the enterprise. Competing lines of railroad under different corporations and antagonistic administrations, instead of promoting, operate to defeat this policy of the law. Nor do separate corporations so operating produce what has been termed a "healthy competition." Public utilities of this character rarely do when so utilized. The uniform history has been that where one line of railroad already in existence is permitted to FIRST DEPARTMENT, DECEMBER, 1904. [Vol. 99. be paralleled by another line of railroad under antagonistic management the effect is first to produce a ruinous competition, then to force consolidation of conflicting interests, or one, not being able to survive, is driven into bankruptcy and absorbed by the other unless restrained by law. "Healthy competition" becomes represented in the survivor and it proceeds to force out of the public the greatest possible revenue. The result is to compel the public to pay interest upon capital invested in the unnecessary line and thereby a burden becomes fastened upon it, which, if the construction had never been authorized, would have ultimately promoted a reduction in the price of carriage. It is evident, therefore, that where it appears that the line of railroad already existing does, or may by proper extensions, fairly serve the public need a new line is not justified upon any theory. The argument that has been addressed to us, that it does not lie in the mouth of the remonstrants to object to such construction when the applicants are willing to take the chances of a fair return upon their investment, is utterly unsound and should not prevail. It ignores vested rights and what is of more importance, it ignores the rights of the public that are interested in obtaining not only the most convenient but the cheapest transportation possible. These applicants are not engaged in a philanthropic enterprise and ultimately expect that from some source there will be an abundant return from their investment. This return can only come from one of two sources; either by forcing the existing railroad to some terms, which always operates as a surrender of a part of its rights, or the burden becomes imposed upon the public and they make the payment. In either case the public is always the one that ultimately finds itself between the upper and nether millstone of the two enterprises. The railroad already constructed is subject in its charter rights to legislative control and it has become after much trial and tribulation the policy of the law to compel existing corporations to supply the reasonable needs of the traveling public by operation and extension of its own lines rather than to permit the building of competitive railroads, which only operate in the end as a burden upon the public without making adequate return, either in convenience or in cheapness of transportation. In view of these considerations which have been sanctioned by the courts and by experience, it appears from the App. Div.] FIRST DEPARTMENT, DECEMBER, 1904. undisputed testimony in this case that the construction of this railroad is not justified by public convenience or a necessity. The routes which it proposes to construct approximately aggregate thirtysix miles of double track, eight in number. The granting of the certificate for the construction was opposed by the Union Railway Company of New York, operating surface lines of electric railways in the borough of The Bronx, and by the People's Traction Company, which already holds a franchise for construction in this territory, but whose lines have not yet been constructed. The Union Railway Company owns or controls or operates practically all the existing surface railway lines in the borough of The Bronx and also controls operating corporations of practically all the surface lines in the adjoining portion of Westchester county as far as Tarrytown, White Plains and New Rochelle. It is also allied with the lessee of the Metropolitan Street Railway system, which operates all of the surface lines upon Manhattan island. The lines of railway which the Union Company operate aggregate seventy-eight and fortyeight one-hundredths miles, nearly all of which are double-track lines, and eighty-eight and eighteen one-hundredths miles in Westchester county. In the borough of The Bronx they are all operated under one system by means of transfers and nearly all of them are under the same transfer system in Westchester county. The same territory is also intersected by various branches of railroad under the control of and operated by the New York Central and Hudson River Railroad Company. The Third Avenue Elevated railroad also runs into a part of this section and the People's Traction Company, also affiliated with the Union Railway Company, has franchises for the construction of many additional miles of street railways. The maps introduced in evidence, conceded to be correct, show that the applicant railroad purposes for a large proportion of its construction to parallel already existing lines of the Union Railway Company and so close thereto that its patronage would be practically drawn from the same territory. The most striking illustration of parallelism is in route designated upon the map as No. 8m, where the applicant road is to be laid along Railroad avenue, and for over four miles it runs within 900 feet of lines operated by the Union Railway Company. Route No. 5 is almost the same. It commences at the Willis avenue bridge, runs thence in ROUTE. FIRST DEPARTMENT, DECEMBER, 1904. [Vol. 99. a northerly direction for nearly four miles within 900 feet of the Union line and for quite a considerable distance within 400 feet. Its route on Aqueduct avenue, which is next to the longest of the proposed construction, parallels the whole of the Union line located on Sedgwick and Jerome avenues and the greater portion of the way is within 400 feet. The following table is most instructive upon this subject, as it shows in detail the extent of the paralleling: Totals of sections W.] of Bronx river 33.04 miles. 10.6 miles. 22.44 miles 13.47 miles. 19.57 miles. 28.36 miles. 7.32 miles 21.04 miles. 9.54 miles. 18.82 miles. 7,570 12,380 9,870 10,080 7,600 3,680 7,600 3,680 21,250 21,250 118,496 71,158 103,307 or or or In addition to this, it appears that the Union railroad has never paid any dividends upon its stock and that the business which it has been able to do has only been sufficient to pay interest upon its outstanding obligations, meet running expenses and fixed charges. The surplus amounted for the fiscal year ending June 30, 1903, to only $24,308. It capital is $2,000,000; five per cent first mortgage bonds, $2,000,000, and the floating debt, $5,390,867.04; aggregating $9,390,867.04. It is evident, therefore, that to authorize the paralleling of its lines of road would so seriously impair its earning power as in all human probability to cause it to default upon the payment of its fixed charges and obligations. In any view, therefore, of the case as thus made it is evident that the views of a majority of the Board of Railroad Commissioners were correct and that public convenience and a necessity did not exist in the |