This proceeding was instituted under section 91 of the Railroad Law by the service of a verified petition upon the property owners - residing on Utica street in the city of Buffalo who had not given their consent to the construction of the petitioner’s railroad, and was returnable before this court on the 23d- .of March, 1897. The court, by an order duly made herein and bearing date the 9th day of April, 1897, appointed three commissioners to determine whether the petitioner’s street surface railroad ought to be constructed and operated on said street. Legal objections were taken by the counsel .for the property owners, and it was made a part of the order appointing the commissioners “ that all legal questions as to the right of the petitioner to construct its proposed road be and the same are hereby reserved until the filing of the report of the commissioners hereby appointed.”
*458The commissioners took , testimony and heard the parties and have reported in favor of the petitioner’s right to construct and operate the said street railway, and the petitioner moves to 'confirm the report of the said commissioners. The .landowners object to its confirmation and present certain legal objections, which were reserved for consideration at the time that the commissioners were appointed, to be disposed of upon the coming in of the report.
The Legislature has imposed three conditions upon the occupation of the street of a city by a street railroad: First, the certificate of the State Board of Railroad Commissioners that public convenience and necessity requires the construction of its railroad. This is made necessary by section 59 of chapter 565 of the Laws of 1890, as amended by chapter 545 of the Laws of 1895; that section further provides that if the commissioners refuse this certificate an appeal lies to the General Term of the Supreme Court (now Appellate Division) of the department in which the railroad is to be constructed ' in whole or in part. The appellate court, if sufficient reasons appear, may order the commissioners to issue the certificate..
Second, consent of the city authorities.
Third, the consent of the owners of - one-half in value of the property bounded on the street proposed to be taken.
Section 94 of the same act, as amended by chapter 616 of the Laws of 1892, provides that if the property owners do not consent,, .the corporation failing to obtain their consent may, upon due notice, 'apply to the General Term (now Appellate Division) of the proper department for the appointment of three commissioners to determine whether such railroad ought to be constructed and operated,, and that the court may, in a proper case, appoint commissioners to hear the parties, and that, if they shall report that such road ought tO' be constructed and operated and such report is confirmed by the court, this result shall be taken in lieu of the consent of the property owners.
The State Constitution which took effect January 1, 1895 (see art. 3, § 18), authorizes the Legislature to provide for this subject by general laws with certain limitations. .
It is conceded in this case that the traction company has neither obtained the certificate of the Railroad Commissioners nor the consent of the landowners or property owners upon Utica street for the construction of its railroad.
*459A question arises upon this record also as to whether the company has obtained the consent of the city authorities of the city of Buffalo, some of the property owners having answered, denying that such consents have been obtained.
We have not directed any reference in order to obtain the facts as regards the consent of the city authorities, and we have nothing before us but the petition and accompanying papers to show that such consent has been obtained, with the denial of the same in the opposing papers — but we will discuss the other questions in the case.
The traction company claims that they are relieved from the necessity of obtaining such certificate by reason of chapter 649 of the Laws of 1896, which is entitled “An act to validate and confirm certain consents heretofore given by the local authorities of cities of the first and second class in the construction, operation and maintenance of street surface railroads therein. * * *
“ Section 1. All consents given since December first, eighteen hundred and ninety-five, and prior to February first, eighteen hundred and ninety-six, by the local authorities of any city of the first or second class to the construction, operation and maintenance of' a street surface railroad in any such city by a railroad corporation which lias not complied with the provisions of section 59 of the Railroad Law, or has failed to obtain the certificate therein provided for, are hereby validated arid confirmed, and any such corporation may construct, operate and maintain a street surface railroad over, along and upon the streets, avenues, highways and public places described in such consent upon obtaining the consent of the owners of property bounded on such streets, avenues, highways or public places as-provided by law.”
The traction company further claims that, while it has not been able to obtain the consents of the property holders, it is in the act of procuring a substitute for such consents through the action of this court in this proceeding, under section 94 and under the constitutional provision which we have cited ; so that its position, plainly stated, is this, that it need not furnish the Railroad Commissioners’ certificate because the statute quoted makes it unnecessary ; that it is not required to procure the consent of the property holders,, although required by the special act, as a condition of dispensing with the railroad certificate, because, under the General Railroad Act, the court may consent for the property holders.
*460This position is not tenable. The legislation upon this subject was for the purpose of throwing safeguards around the appropriation of city streets by railroad companies, of an important and necessary character. When the consent of the city authorities was obtained, when the consent of the Railroad Commissioners was obtained, then, and only then, prior to this special act that'we have quoted, could an appeal be taken to the court, if the company was unable to procure the necessary consents of the property holders. That was the condition of the law when the special, or curative act was passed. That act seemed to have a double purpose : First, to make valid certain proceedings to obtain the consent of the city authorities. Second, to relieve the company from procuring the certificate of the Railroad Commissioners.
The Legislature consented that they be relieved from procuring this certificate, provided the consents of the property holders representing one-half in value of the property on Utica street were obtained. The Legislature in its wisdom thought the property holders protected if one-half of their number consented to the occupation of this street by .the railroad; it did not provide for the consent of the court, or any other body except such property holders. It did not adopt, as a part of that curative act, any prior legislation 'upon the subject of constructing street railroads in cities. It simply dispensed, in its judgment, with the certificate of the Railroad Commissioners, if the conditions imposed by the statute were performed.
The prevailing opinion in this case seems to hold that the provision in the curative act that the consent of the landowners .should be obtained in the manner “ provided by law,” authorizes the court to consent for the landowners in case they withheld their consent. This construction, it seems to me, is strained and unwarranted, as it permits the court to consent for both the Railroad Commissioners and the adjoining owners and defeats the manifest intent of the Legislature.
The traction company was. bound to exercise the privilege of dispensing with this certificate, if at all, within the terms upon which it was conferred. It cannot take part and reject the rest. (Matter of Metropolitan Transit Co., 111 N. Y. 601.)
My conclusion is that, inasmuch as the traction company has not •obtained the certificate of the Railroad Commissioners nór the con*461sent of the property holders upon Utica street, it is not in a position to ask for a confirmation of this‘report, and that we have no jurisdiction to grant the order, and that the application to confirm the report of the commissioners should be denied, with costs.
Motion to confirm the report of the commissioners granted.