I agree with the statement contained in the opinion of brother Spring that “ the evidence justifies the determination that in the situation presented to the Board (of Bailroad Commissioners) there was a paramount necessity for the issuance of a certificate to one or the other of the two rival companies (the petitioner and the Buffalo, Lake Erie and Niagara Bailroad Company). If we should review the (this) application as an original one, * * * as was done in
Matter of Rochester, Corning, Elmira Traction Co. (118 App. Div. 521) we Should also conclude that the petitioner was entitled to the certificate.” But I think it should be held that the evidence presented to the Board of Bailroad Commissioners conclusively estab*512lished “ a paramount necessity for the issuance of a certificate,” and that this application should he regarded as was the application in the Rochester, Corning, Elmira Traction Co. Case (supra), because the additional facts presented by the affidavit do not in any material respect change the situation. The statements in the affidavit are to the effect that the various railroad companies whose lines enter the city of Buffalo are engaged in extending and increasing their terminal facilities so as to enable them to properly handle the freight which may come into the port of Buffalo; that great progress has been made by them in that direction since the hearing herein before the Board of Railroad Commissioners in 1906, and that the work so entered upon and which entailed a very large expense is now nearly completed, and that when completed ample shipping facilities will be afforded by them to all. There is no suggestion that the improvements which such railroad companies are making will add to the shipping facilities of those who own land upon the line of the proposed railroad, or those who might establish manufacturing plants or engage in other businesses along such line. It appears that the railroad which the petitioner asks to build is to traverse a section or territory well adapted to the location of large manufacturing plants and other industries, and that it has now no shipping facilities. The chief purpose of the petitioner is to create new and additional business by developing a large tract of country which cannot be developed until it is supplied with railroad facilities. In the Rochester, Corning, Elmira Traction Co. Case (supra) we held that it was not a valid objection, to the granting of such a certificate that the new road would reduce the revenue of the old, or that the old road had ample facilities to accommodate a much larger traffic.
The railroad companies appearing object to the granting of the certificate in this case solely upon the ground that they now are, or soon will be, able to properly take care of all the freight .which comes into or goes out of the city of Buffalo, and, therefore, such companies desire that they alone shall be permitted to han die. such freight and receive the revenue therefrom. I think the objection is not tenable. It is not the rule that one locality or one portion of a city may be denied railroad accommodations, because to give them would reduce the earning capacity of railroads which especially accommodate shippers in another locality or section. Justice Spring *513says: “ The title to the extensive harbor and water frontage adjacent to the city is in the railroad companies, so that there is no opportunity for the location of a manufacturing plant or business enterprise requiring a large site along the lake or river within the city, and the proof tends to show that industrial organizations of magnitude have been prevented from locating in the city for the reason that there was no vacant property available for.the operation of their plants.” The evidence not only tends to prove that such conditions exist, but the proof is wholly uncontradicted that the “ vacant property. ” referred to is unavailable for large manufacturing plants, solely because it is not provided with railroad facilities. It cannot be the. policy of the law that various railroad companies should be made secure in the monopoly of the freight business of the great port of the city of Buffalo, and also made secure in the control of all the available manufacturing sites in said city. It appears without contradiction that both north and south of the city of Buffalo, and on the line of the proposed railroad, there is ample water frontage, and adjacent thereto extensive tracts of land upon which any large manufacturing plant could be located, and would be located, provided only transportation facilities were afforded.
Mr. Justice Spring f urther says: “ Suffice it to say, there was abundant evidence, as conditions then prevailed (when the hearing before the Railroad Commissioners was had), to warrant the decision that a terminal road was essential.” As before suggested, the conditions then existing have not changed in any essential particular and so as to justify a different conclusion by this court. A large territory, both north and south of the city of Buffalo, accessible to the water front and admirably adapted to manufacturing and all the purposes of commerce, is practically unoccupied and undeveloped, because without railroad facilities, and such territory is thus undeveloped and unused notwithstanding practically all suitable sites for large manufactories and which have railroad facilities are owned and occupied by the respective railroad companies now operating in the city of Buffalo. The petitioner proposes to supply ample railroad accommodations to such territory and in such manner that connection may be made which will permit of the interchange of freight with every other railroad entering said city. This great development should not be checked. Permission to carry out this improvement, which *514is asked for- not only by the petitioner, but by a large body of the representative citizens of the city, ought not to be blocked upon the Objection' of the existing railroad companies, because they, in the future, may be able to furnish facilities to properly take care of the freight which may come to the territory occupied by them and because, if such facilities are provided and any of such freight is permitted to be diverted, a loss in revenue" will result to, them. - The objection made by the Buffalo, Lake Erie and Niagara Bail-road Company to the granting of the application herein ought not to affect the rights of the petitioner in any particular or to influence our decision in the case.
• It appears that about the year 1903 a company known as the Niagara Transfer Company presented its petition to the Board of Bailroad Commissioners asking for a certificate of public convenience and necessity, under section 59 of the Bailroad Law, for the construction of a railroad extending from the outskirts of thé city of. Buffalo. to the village of Tonawanda, a distance of seventeen miles. The route of such proposed railroad passed through the same ..territory and its route, except along the Niagara river front, is substantially the same as the route of the railroad proposed to be constructed by the petitioner herein. The certificate asked for was granted to -said company by the Board of Bailroad Commissioners, but on the hearing of a writ of certiorari to review the. action of the Board of Bailroad Commissioners in granting that • certificate, their determination was reversed by the Appellate Division, third department (103 App. Div. 123), and that decision was affirmed by the Court of Appeals in. 184 New York (at p. 575) in March, 1906. The opinion in the Appellate Division was written by Mr. Justice Houghton,, and the ground of the decision appears by the head note as follows : .“It appeared that the proposed railroad * * * was. designed as a freight switch road, and that its primary purpose was the development for manufacturing and shipping purposes of a tract of land of about 2,200 acres, which had a frontage on the Niagara river of about four miles. The owners of more than sixty-two per cent of this tract, representing sixty-six per cent of its entire water frontage, objected to the granting of the certificate.
The evidence established that the proposed road would serve no. public necessity, except such as might result from the future con*515struction of manufacturing plants upon the tract in question, and also that the cutting-off of their water frontage by the proposed railroad would result in very great damage to the owners of such tract, exceedingly difficult, if not impossible, of ascertainment in condemnation proceedings.
“ Held, that the evidence did not justify the granting of the certificate of public convenience and a necessity.”
In the case at bar no such situation is presented and no such objection was made by the owners of property along its proposed route.
While the proceedings for review in that case were pending, and in June, 1905,’the recent respondent, the Buffalo, Lake Erie and Niagara Railroad Compahy, was incorporated in the interests of the same men who were concerned in the Niagara Transfer Company, and for the purpose of promoting practically the same object. The new company so organized made its application in 1905 to the Board of Railroad Commissioners for a certificate under section 59 of the Railroad Law; but in addition to two of the proposed lines of railway mentioned in the former application, one along the Niagara river front between Buffalo and Tonawanda, and one on the bluff along the canal between those places, a short distance back from the river front, this application covered a proposed terminal railway running around northerly, easterly and southerly of the city of Buffalo and ending at a point on Lake Erie, southerly of such city. The Board of Railroad Commissioners granted to such new railroad company, this respondent, the certificate which it asked for. Upon a review of the determination of the Board of Railroad Commissioners by the Appellate Division of the third department, it was vacated and set aside (People ex rel. Sawyer v. Board of R. Comrs., 128 App. Div. 814) and upon the ground that the situation presented upon the second application was practically the same as upon the first, and further it was held that a certificate of public convenience and necessity should not be granted where the construction of the railroad will involve the monopolizing of lands fronting on navigable waters to the great detriment of commercial interests and to a proposed ship canal to be built by the Federal government. After that decision was made by the Appellate Division the respondent, the Buffalo, Lake Erie and Niagara Railroad Company, made application to the Public Service *516Commission, second ■ district, for a certificate of public convenience and necessity and such application is now pending before such Commission and-it is urged that the pendency of that application is a reason why this court should not determine the petitioner’s rights in the premises, but should send it to the Public Service Commission because the application of the Buffalo, Lake Erie and Niagara Railroad Company is pending and undetermined before such Commission. It seems to me that the petitioner by the long, laborious and exhaustive trial which it prosecuted before the Board of Railroad Commissioners, making a record of more than 2,000 pagés, acquired.the right to have the determination made upon that application reviewed in the manner provided by law and that such right cannot be affected because some other corporation has made a similar application to the Commission which is the successor of the Board of' Railroad Commissioners and which is charged with all the duties imposed upon the Board of Railroad Commissioners and is charged with the duty also of giving force and effect to any determination of courts respecting the rights of any party who submitted his rights in the manner prescribed by law to the Board of Railroad Commissioners.
Practically the argument on behalf of the Buffalo, Lake Erie and Niagara Railroad Company in opposition to the petitioner’s application is that while the route of the petitioner’s proposed railroad is practically the same as that proposed by it, it is not as good or suitable and would not accommodate the'general public as well. We have seen why the certificate granted to it was reversed in both instances. It was because they were to greatly damage a large tract of land adjacent to Niagara river, because a large percentage of the owners of the land which it was their purpose to develop were protesting against the construction of the road, and in the last case because the construction of such road would “ involve the monopolizing of lands fronting on navigable waters to 'the great detriment of commercial interests and to a proposed slfip canal to be built by the Federal government.” As we have seen, no such situation is presented in the case at bar, and no objection to the construction of petitioner’s railroad is made upon any such ground.
It seems to me beyond doubt that this court has ample authority to grant the application which is asked for and that such decision in no manner usurps the important functions and duties of the Public *517Service Commission. If an order is made directing the issuance of a certificate by such Commission, the act is purely ministerial and the decision is based upon the record made before the Board of Railroad Commissioners before the Public Service Commission was created, and for which record it has no responsibility. The Public Service Commissions Law (Laws of 1907, chap. 429) went into effect July 1, 1907, four days after the certificate of the Board of Railroad Commissioners certified the papers and proceedings in this ease. The Board of Railroad Commissioners was abolished by the Public Service Commissions Law, and it is therein provided (§ 80) that all the powers and duties of such board “ conferred and imposed by any statute 6f this State shall thereupon be exercised and performed by the Public Service Commissions.” Under the old law if the Board of Railroad Commissioners had improperly refused to grant a certificate of public convenience and necessity, it was the duty of the appellate court to review such determination and correct the error by directing that such hoard issue such certificate. The only body which is now capable of making the certificate under such circumstances is the Public Service Commission, and it seems idle to suggest that under, the provisions of the law a litigant before the Railroad Commissioners, who incurred the expense of trying his case and making his record, should be powerless to have such determination by the appellate court upon the record so made.
It is further provided in the act creating the Public Service Commission (§ 85): “ This act shall not affect pending actions or proceedings, civil or criminal, brought by or against the Board of Railroad Commissioners or the Commission of Gas and Electricity, or the Board of Rapid Transit Railroad Commissioners, but the same may be prosecuted or defended in the name of the Public Service Commission, provided the subject-matter thereof is within the statutory jurisdiction of such Commission. Any investigation, examination or proceeding undertaken, commenced or instituted by the said boards or commission, or either of them, prior to the taking effect of this act may be conducted and continued to a final determination by the proper public service commission in the same manner, under the same terms and conditions, and with the same effect as though such board or commission had not been abolished ; ” and by section 86 : “ Wherever the terms Board of Railroad Commissioners * * * *518occur in any law * * * or whenever in any law * * * reference is made to such boards * * * such terms or reference shall. be deemed to refer to and include the Public Service. Commissions as established by this act, so far as such law * * * pertains to matters which are within the jurisdiction of the said Public Service Commissions.”
By section 31 of the Statutory Construction Law (Laws of 1892, chap; 677) it is provided: “ The repeal of a statute or part thereof ■ shall not affect or1 impair any act done or right accruing, accrued or .acquired, or liability, penalty, forfeiture or punishment incurred prior to- the time such repeal takes effect, but the same may. be asserted, enforced, prosecuted or inflicted, as fully and 'to the- same extent as- if such repeal had hot been effected; and all actions and proceedings, civil or criminal, commenced under or by virtue of any provision of a statute so repealed, and pending immediately prior to- the ■ taking effect of such repeal, may be prosecuted and defended to final effect in the same manner as they might if such provisions were not so repealed.”
The cases cited by respondent’s counsel (People ex rel. City of Buffalo v. N. Y. C. & H. R. R. R. Co., 156 N. Y. 570; Village of Champlain v. McCrea, 165 id. 264; Stone v. Board of Supervisors, 166 id. 85) and others to the same effect,, sustain the proposition that this court has the power to direct the Public Service Commission to issue the certificate which the Board of Railroad Commissioners ought to- have issued in-this case, and that, this court should so decide, there being practically no essential difference between the situation which existed at the time that the Board of Railroad- Commissioners refused to issue, the certificate of public convenience and necessity and the situation which existed at the time of the submission of this case to this court.
As we have seen, .it isi practically undisputed that the railroad proposed to be constructed by the petitioner, if constructed^ will bring into the market a vast territory north and south of the city of Buffalo, will make it suitable and ¡available for manufacturing purposes and other industrial enterprises, and that it cannot be made available unless railroad accommodations are afforded. It is equally conclusively established that the only basis of the opposition to this application is that the 'railroad corporations entering the city of *519Buffalo desire that all freight entering or leaving such city shall be compelled to employ one or the other of them in its distribution, and that if any of such freight is diverted it will cause a decrease in the revenues of such corporations. It is not suggested that they intend to furnish railroad facilities to the territory which is traversed by the proposed railroad of the petitioner.
This is an important case. Important interests are involved. I would be glad for one if I could agree with brother Spring in concluding that in the performance of our duty we should avoid deciding the question which is presented here and impose the responsibility upon the Public Service Commission. But such action imposes the.burden upon the petitioner of retrying the case and of making another record of 2,000 pages or more.
Under all the circumstances I think it is our duty to decide whether or not upon the evidence presented to us, and taking into consideration the affidavit presented, showing the situation as it has been changed or as it now exists, a certificate of public convenience and necessity should issue to the petitioner. -
I think that this court should direct that the Public Service Commission issue such certificate as prayed for by the petitioner.
Determination of the Board of Railroad Commissioners set aside and a rehearing ordered before the Public Service Commission, second district, without costs in this court to either party.