I dissent, because the railroad commissioners failed to make a personal examination of the locus in quo as required by section 161 of the Railroad Law, which is as follows: "§ 161. Recommendations of board, when repairs or other changes are necessary. — If in the judgment of the board, after a careful personal examination of the same, *Page 368 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 and information in writing to the corporation of the improvements and changes which they deem to be proper, and shall give such corporation an opportunity for a full hearing thereof, and if the corporation refuses or neglects to make such repairs, improvements and changes, within a reasonable time after such information and hearing, and fails to satisfy the board that no action is required to be taken by it, the board shall fix the time within which the same shall be made, which time it may extend. It shall be the duty of the corporation, person or persons owning or operating the railroad to comply with such decisions and recommendations of the board as are just and reasonable. If it fails to do so the board shall present the facts in the case to the attorney-general for his consideration and action, and shall also report them in its annual or in a special report to the legislature." (L. 1890, ch. 565, § 161.)
The power of the board to decide and recommend that the change in question should be made is derived wholly from the section quoted, and the Supreme Court has power to compel compliance, as authorized by the next section, only in case the board has proceeded according to the positive requirements of the statute in making the decision and recommendation. (Id. § 162.) The Supreme Court cannot act without a recommendation, and if the recommendation presented was made in violation of law, which is apparent from an inspection thereof, it is void and the court has no jurisdiction to issue its writ of mandamus to compel the railroad company to make the change.
The decision and recommendation in question, as presented *Page 369 to the Supreme Court, showed upon its face that the inspection of the premises was made, not by the commissioners in person, but through an agent employed by them. The subject was not left to presumption, but the commissioners fairly stated in their decision that "the board caused a personal inspection of the premises to be made through its inspector, the report of which is on file." No other inspection is mentioned either in the decision or in the evidence, although the return to the alternative writ presented the issue and cast upon the People the burden of showing that a personal examination was made, if such were the fact.
The command of the statute with reference to a personal examination is not directory but mandatory. Two investigations are required before the court can compel the railroad company to make the proposed change. The first is wholly ex parte, while the second is after notice and an opportunity to be heard. The first, however, unless wholly negative in result, is the basis of an important decision, for, as the statute directs, "if, in the judgment of the board, after a careful personal examination of the same, it shall appear" that a change is necessary, "the board shall give notice and information in writing to the corporation of the improvements and changes which they deem to be proper." The decision thus made on the basis of a personal examination stands as the final decision of the board, and, if it is just and reasonable, the company must comply therewith, unless, at the hearing which may be had, it is able to "satisfy the board that no action is required to be taken by it." No further decision is required unless the board changes its mind, except to simply "fix the time within which" the improvement must be made.
The company is thus required to comply or contest, and, if it fails to do either, the Supreme Court can compel compliance to the extent that the recommendation is just and reasonable. Upon the application for this purpose "the findings of the board shall be presumptive evidence of the facts therein stated, and the recommendations of the board shall be deemed prima facie to be just and reasonable." (§ 162.) If the *Page 370 company contests the matter, it has to meet a prima facie case already established by the ex parte investigation, and it has the burden of satisfying the board that its preliminary decision was wrong.
As the first investigation may lead to such important results, the method of investigation, so far as provided by statute, should be strictly complied with. The only method mentioned is "a careful personal examination," which, by express command of the statute, must be made, when practicable, as it was in this instance. While other sources of information may be, this source must be resorted to. When the statute says "personal examination" it means an examination made by the commissioners or some of themin propria persona of the place where the proposed improvement is to be made. The power exercised by them was delegated by the legislature, whose province it is, in the first instance, to require railroad companies to erect freight depots when deemed proper. This power was delegated with the express command that it should be exercised after a personal examination by the board. It thus became the duty of the commissioners or a majority of them to personally examine the locus. In the absence of express authority they could not delegate that power to another.Delegatus non potest delegare. When a power belonging exclusively to the state is delegated by the legislature to a board, the statute must be strictly construed and the method of procedure provided must be strictly followed. (23 Amer. Eng. Encyc. p. 394.) In all jurisdictions this is so held of the power to condemn land or levy assessments, and the power under consideration is of the same summary character. The personal examination required by statutes of condemnation or by statutes authorizing local assessments cannot be delegated, and the board of railroad commissioners, as deputies of the state, could not assign to a deputy of their own the power of making the examination which the statute commanded them to make in person.
In making the decision or recommendation the commissioners *Page 371 acted as judges. (People ex rel. Loughran v. Board of RailroadCommissioners, 158 N.Y. 421.) The personal examination was the evidence upon which they were commanded to act in making the decision, and no report of an agent, however skillful, could take the place of a personal view of the premises. They were to pass judgment upon what they saw, not upon what they heard from an inspector. Courts have repeatedly recognized the fact that it is impossible for one human being to so describe a locality or situation as to place in the mind of another as perfect a picture as can be derived from personal observation. Therefore, the power delegated by the board to its agent could not be as well exercised by him as by them, and the reason for the positive requirement of the statute thus becomes manifest. The omission to comply with the statute appeared upon the face of the decision, without which the Supreme Court has no jurisdiction. The commissioners had no jurisdiction to make their decision and their want of jurisdiction permeated the entire proceeding and deprived the Special Term of the power to issue the writ of mandamus. While this defect was substantially raised by the return to the alternative writ, as it went to the jurisdiction of both tribunals, it could be raised at any stage of the litigation. (Chemung Canal Bank v. Judson, 8 N.Y. 254.)
I think it was the duty of the commissioners to make the examination in person; that their decision, made without complying with this requirement, was void upon its face, and that it conferred no power upon the Supreme Court to act.
I, therefore, vote for reversal.
GRAY and MARTIN, JJ., and CULLEN, J. (in memorandum), concur with BARTLETT, J., for affirmance; PARKER, Ch. J., and WERNER, J., concur with VANN, J., for reversal.
Order affirmed. *Page 372