Staten Island Rapid Transit Staten Island Rapid Transit New York Central and Hudson New York Central and Hudson New York Central and Hudson Supplement No. 13 to its Supplement No. 5 to its Supplement No. 5 to official 15 1 0 31. 15 Supplement No. 1 to Official NOTE. Orders Nos. 320, 581 and 648, while referring specifically to the New York Central and Hudson River Railroad Company, are applicable to other railroad companies and carriers within the jurisdiction of this Commission. * To become effective as to the New York Central and Hudson River Railroad Company July 1, 1908; as to other companies, within ten days after publishing at stations and filing with the Commission. FRANCHISE MATTERS NOT ARISING ON SPECIFIC APPLICATIONS OF COMPANIES. Brooklyn Heights Railroad Company.- Removal of tracks in Fifty-second street, from Second avenue to the public dock, in the borough of Brooklyn. SIR. Referring to your letter of August 5th, addressed to Mr. Semple, in which you ask for an opinion as to whether the Commission should take up the complaint of Joseph N. Tuttle against the Brooklyn Heights Railroad Company in regard to the right of the Brooklyn Heights Railroad Company to maintain tracks and store cars on Fifty-second street, Brooklyn, I beg to advise you as follows: From an examination of the files it appears that Mr. Tuttle's complaint, dated June 9, 1908, alleges that the Brooklyn Heights Railroad Company wrongfully used the Fifty-second street tracks for storage of cars. It appears also that Mr. Tuttle's complaint has been served upon the Brooklyn Heights Railroad Company and that that company on June 24, 1908, answered, admitting that cars had formerly been allowed to occupy the streets by employees in disobedience of orders of the company, and that the cars had now been removed and special orders had been issued to prevent a repetition of the offense. The complaint was made under section 48, subdivision 2 of the Public Service Commissions Law, setting forth acts done claimed to be in violation of certain provisions of law and of the terms and conditions of the railroad's franchise. A copy of this complaint was properly forwarded to the corporation complained of, accompanied by an order requiring that the matters complained of be satisfied. An answer to this was received, in effect admitting violations of law in the past and stated that the violations had ceased and would not be continued. Under the provisions of this subdivision the Commission, if satisfied with the company's answer, need take no further action on the matters complained of. If, however, the Commission is not satisfied it may, after a hearing, direct the company to satisfy the cause of the complaint by discontinuing storing of cars in the street. I have confined myself to a discussion of the storing of cars in the street for the reason that that seems to be the only matter raised by Mr. Tuttle's complaint of June 9th, and the Commission by serving that complaint upon the company has practically confined itself in that proceeding to the matters contained in the complaint. I note that in your letters of July 7th and July 30th, addressed to Joseph N. Tuttle, Esq.. you properly advised Me Tuttle that the Borough President was the proper authority to secure the removal of the tracks and cars from Fifty-second street. It appears, however, from Mr. Tuttle's answers that he has understood your letters to mean that the Borough President was the only proper authority and that the Commission had no power to order the company to discontinue its practice of obstructing Fifty-second street by storing cars therein. I believe that Mr. Tuttle is right in pointing out that the Commission has power to investigate and issue an order in the matter of the storage of cars in the street. It appears that the Borough President is prevented from acting by an injunction, and I think it would be quite proper for the Commission to hold a hearing and issue an order without waiting for action by the Borough President. Respectfully yours. GEO. S. COLEMAN, ' Counsel to the Commission. Complaint Order No. 674 (see form, note 1) issued August 14th. COMMISSIONER BASSETT : OPINION OF COMMISSION. The complainant seeks an order of this commission directing the Brooklyn Heights Railroad Company to remove its tracks in Fifty-second street between Second avenue and the public dock, in the borough of Brooklyn on the ground that the company has no franchise right in this street between the points named. It appears that prior to the filing of the complaint with this Commission steps had been taken by the president of the borough of Brooklyn (the proper local authority), for the removal of these tracks and that an action for an injunction had been brought by the company against the city and against the borough president to restrain such interference, and a temporary injunction had been procured restraining such interference. It appears further that this injunction is still in force, pending a trial of the action, but that there has been delay in bringing the action to trial, and the complainant seeks to expedite matters by procuring an order of this Commission directing the removal of the tracks. The complaint is made under subdivision 2 of section 48 of the Public Service Commissions Law. It is insisted that under this subdivision the Commission has no discretion as to whether or not it will proceed in the matter and must proceed with the investigation and final order, regardless of the pending injunction suit. I do not so construe the language used in this subdivision. Power is granted to proceed with an investigation and to take such action as the facts justify if "it shall appear to the Commission that there are reasonable grounds therefor." It is thus evident that it is intended that the Commission shall exercise discretion as to whether it will proceed or not. I do not think the Commission should ordinarily say that reasonable grounds for an investigation and final order are presented when it appears that the question of legality or illegality is at the same time pending and undetermined in an action in the Supreme Court. The fact that such an action is pending, involving allegations on the one hand and denials on the other, is some indication that there is a doubt as to the existence of reasonable grounds. There would also be serious danger of a conflict of jurisdiction. The Commission might decide one way and. the court might decide the other way; and if there were no danger of a conflict of jurisdiction, ordinary rules of comity would constrain the Commission in the exercise of sound discretion to decline to interfere while the matter is still pending in the courts. That the matter has been delayed in the courts cannot, in this case, it seems to me, be sufficient reason for interference. It does not appear that there is any good reason why the action cannot be tried and determined at an early date. I therefore recommend that the complaint be dismissed for the reasons stated, but without prejudice to further hearings and action thereon by the Commission, in the event that reasonable grounds therefor shall be brought to the attention of the Commission. The following discontinuance order was issued and Order No. 818 providing that an inquiry be made under Public Service Commissions Law § 45 into the same matters, was issued. This matter coming on upon the report of the hearing had herein on September 16, 1908, and it appearing that said hearing was held pursuant to Order No. 695 of this Commission, dated August 28, 1908, and returnable on September 16, 1908, at 2:30 o'clock P. M., which order was issued upon the complaint and answer herein; and it appearing that said order was duly served upon said complainant and upon said Brooklyn Heights Railroad Company, and that said service was by said company duly acknowledged; and it appearing that said hearing was held by and before the Commission on the matters in said complaint, answer and order specified, on September 16, 1908, before Mr. Commissioner Bassett, presiding; Harry M. Chamberlain, Esq., assistant counsel, appearing for the Commission; J. J. Coughlin, Esq., attorney, appearing for the complainant, and A. M. Williams, Esq., appearing for said railroad company; and testimony having been taken upon said hearing, and it having been made to appear after the proceedings on said hearing that the matters embraced in said complaint and answer are more properly heard under an inquiry in accordance with section 45 of the Public Service Commissions Law, Now, therefore, on motion made and duly seconded, it is Resolved. That the proceedings upon said complaint be, and the same hereby are, discontinued. It is further Resolved, That this action shall be without prejudice to an order for further additional hearings and action thereon by the Commission in respect to any of the matters covered by said complaint, answer, and order for hearing, or the proceedings thereon. In the Matter Operation by the BROOKLYN HEIGHTS RAILROAD COMPANY through Fifty-second street from Second avenue to the public dock, in the borough of Brooklyn, without having first obtained a certificate of permission and approval under section 53 of the Public Service Commissions Law. ORDER No. 818. November 4, 1908. Resolved, That under section 45 of the Public Service Commissions Law an inquiry be made, beginning November 9, 1908, at 2:30 o'clock in the afternoon, to determine whether the Brooklyn Heights Railroad Company is violating the provisions of section 53 of the Public Service Commissions Law, in that said company is operating cars in Brooklyn on Fifty-second street from Second avenue to the public dock, without having first obtained a certificate of permission and approval under section 53 above mentioned. Hearings were held November 9th, 16th, 23d and 30th. *[The tracks of the company on Fifty-second street. Brooklyn, between Second avenue and the public dock are not maintained unlawfully.] COMMISSIONER BASSETT :— OPINION OF COMMISSION. The J. P. Duffy Company, a corporation using trucks in carrying on its cement pipe business, complained against The Brooklyn Heights Railroad Company because it maintained tracks on the surface of Fifty-second street, in the borough of Brooklyn, between Second avenue and the public dock and asserted that said tracks were laid and maintained without right. The Commission directed an inquiry to be held in order to learn whether the facts are sufficient to enable it to reach an opinion that the said company has failed or omitted to obtain a certificate of permission and approval under section 53 of the Public Service Commissions Law. The reason why such a certificate might be necessary is because of the provision of that section that no street railroad corporation shall exercise any franchise or right not heretofore lawfully exercised without first obtaining the certificate of permission and approval. In case the inquiry should show that the company does not lawfully maintain its tracks on this street it would become the duty of the Commission under section 57 of the Public Service Commissions Law to direct counsel to commence an action in the Supreme Court to prevent the continuation of the illegal act. The Commission would not have been inclined to make this inquiry were it not for the fact that the complaining corporation showed that the borough president of * See footnote, page 9. |