We should be content to affirm this judgment on the opinion of the learned Appellate Division were it not for the fact that a point was argued at our bar which was not considered below.
As we approve and adopt the opinion of the Appellate Division, we shall confine our discussion to this one point. *Page 364
The counsel for the appellant insists that the recommendation of the railroad commissioners cannot be upheld and enforced by the courts because it appears upon its face that they did not, in making it, act or proceed in obedience to the provisions of the statute.
The Railroad Law (Laws 1890, chap. 565) provides (§ 161), in regulating the powers and duties of the railroad commissioners, as follows: "If in the judgment of the board, after a careful personal examination of the same, it shall appear that repairs are necessary upon any railroad in the state, or that any addition to the rolling stock, or any addition to or change of the station or station houses, or that additional terminal facilities shall be afforded, or that any change of the rates of fare for transporting freight or passengers or in the mode of operating the road or conducting its business, is reasonable and expedient in order to promote the security, convenience and accommodation of the public, the board shall give notice," etc.
The contention of the appellant is that the commissioners failed to make the personal examination of the premises required by the statute and that this omission goes to the jurisdiction of the board to act.
It is further urged that this defect appears upon the face of the papers and could not be cured by oral proof or by any action on behalf of the People at any stage of the proceedings.
In support of this last suggestion reference is made to the report of the railroad commissioners, where it states as follows: "That prior to such hearing the board caused a personal inspection of the premises to be made through its inspector, the report of which is on file."
It is also argued that while it is doubtful if the report advises the erection of a freight depot, but, if so, it was not at the place fixed by the commission.
This narrow and technical construction of the statute ought not to prevail.
It was the obvious intention of the legislature to impose *Page 365 upon the railroad commissioners the duty of a careful personal examination of the subject of repairs or changes upon which they were to act, and it would be unreasonable to hold that the commissioners could not avail themselves of the expert or general knowledge of inspectors they may employ. If repairs of the roadbed were under consideration the judgment of a disinterested trackmaster might be given weight, as the opinion of one unfamiliar with the practical operation of a railroad would be of little or no value. If curves were alleged to be dangerous or bridges insecure, the commissioners would naturally call in the civil engineer and the bridge builder. If additional rolling stock or depots were deemed necessary to secure the convenience and accommodation of the public, the commissioners would avail themselves of the knowledge and experience of unbiased and practical railroad men as calculated to aid them in reaching a just conclusion.
In the case before us neither the formal nor informal report of the inspector was adopted, thus showing that the commissioners did not delegate to the inspector any portion of their official duty, but reserved to themselves the power of independent action in the premises.
We do not mean to intimate that there may not be presented to the railroad commissioners a case where the statutory command of personal examination of the subject may not require them to visit and inspect the locus in quo, but in the case at bar no personal examination of the location of the freight depot was necessary.
The litigated question was whether the freight depot of the defendant at Green Island was so situated as to meet the demands of freight shippers doing business in West Troy, and if not, was the volume of freight shipments to and from West Troy over the railroad of the defendant sufficient to justify the commissioners in recommending that the defendant erect a freight depot in West Troy?
This question, under the alternative writ of mandamus, was tried before a learned referee who decided that the recommendation of the commissioners that a freight depot should *Page 366 be erected by the defendant in West Troy was just and reasonable.
The location of this freight depot, if it was to be built, was not a matter of dispute.
The learned counsel for the defendant states in his brief as follows: "It was conceded by the defendant that when the matter of a freight station at West Troy was first agitated, the officers of the company expressed a willingness to build, and bought some land on the south side of 19th street with the view of making use of it for that purpose, but when the matter was looked into more carefully it was found that the business that would be likely to go through a freight house would not justify the expense of building and maintaining it."
This fairly states the situation — the true issue.
The trial court has decided that the freight business will justify the building and maintaining of a freight house, and the railroad commissioners have recommended its erection upon the land already purchased for that purpose by the defendant.
The judgment and order appealed from should be affirmed, with costs, on the above opinion and the opinion below