cars so that the effective automatic circuit breaker shall be over the motorman's head, and that this. although somewhat inconvenient for the operating company, yet gives every protection to the public and prevents delays as fully as if two modern automatic circuit breakers were placed upon each car. In other words, they claim that the present expense of purchasing two new circuit breakers for each open car is not now necessary.

The open cars of this company caused a great deal of delay on the Brooklyn Bridge in the summer of 1907, because of fuse blow-outs. An examination of these cars showed that some had no automatic circuit breakers whatever, and that some had only one automatic circuit breaker, instead of two, which is the modern practice. The function of a circuit breaker is to cut off the electric current when for any reason the volume becomes too great, thus preventing the burning out of the 'fuse. When the current is cut out by the circuit breaker all that is necessary for the motorman to do is to throw a handle located above his head, whereupon the current immediately is restored and the car proceeds without delay. If, however, there is no circuit breaker, the fuse blows out and a new one must be inserted

before the car can go on. This causes a substantial delay. If the operating

circuit breaker is not above the motorman's head there are two drawbacks: One is that the conductor or motorman must go to the back platform and throw the handle, and the other is that the noise, and sometimes flame, that occurs when the current throws the breaker is apt to frighten passengers that may be standing on the rear platform. On these accounts good practice requires two automatic circuit breakers on each car, so that the one that is operative may always be above the front platform. The operating company show that many of their open cars are operated with loop terminals, and that they can always have the circuit breaker in the front of such cars. This is probably the fact, although there is some evidence to show that it is not well to operate cars continuously in the same direction on account of uneven wear upon motors and gears. This particular company appears to have been remiss for some time past in the upkeep of its rolling stock, and now finds it difficult to comply with all modern requirements in a few months' time. On this account I am inclined to look with favor on a modification of the existing order, so that the equipment of part of the open cars with modern automatic circuit breakers may be postponed until the summer of 1909. I have come to the conclusion, therefore, that the order should make the following provisions:

That said company by or before the 15th day of April, 1908. provide and equip all of the said open cars in service that operate into a switchback terminal with two automatic circuit breakers of modern type and connect such circuit breakers in multiple on each such car, and at all times maintain both the said circuit breakers on each such car in good and perfect repair and keep the same properly adjusted for the capacity of the motors of the cars on which they are placed, and that the circuit breaker over the motorman's head shall at all times be the one operative.

That said company by or before the 15th day of April, 1908, provide and equip all of the rest of its open cars in service with at least one circuit breaker of modern type and at all times maintain the said circuit breaker in good and perfect repair and keep the same properly adjusted for the capacity of the motors of the car on which it is placed, and that the car shall at all times be operated so that the said circuit breaker shall be above the motorman's head.

That said company by or before the 15th day of April, 1909, provide and equip all of its open cars in service with two automatic circuit breakers of modern type and connect such circuit breakers in multiple on each car, and at all times maintain both the said circuit breakers on each car in good and perfect repair and keep the same properly adjusted for the capacity of the motors of the car on which they are placed, and that the circuit breaker over the motorman's head shall at all times be the one operative.

Let an order be prepared accordingly.

Thereupon the following final order was issued:

Matter of rehearing on portion of Order No. 134,

entered December 4, 1907.

ORDER No. 238.
February 4, 1908.

An order having been made and filed herein the 4th day of December, 1907, being Order No. 134, under and pursuant to an order for hearing made the 13th day of November, 1907, being Order No. 88, and said Order No. 134 having been duly served upon the Coney Island and Brooklyn Railroad Company, and said Coney Island and Brooklyn Railroad Company having accepted said Order No. 134 in part, but having applied in writing to this Commission for a modification of paragraph numbered (2) of said Order No. 134, and an order having been made the matters contained in said and filed the 20th day of December, 1907, returnable December 31, 1907, being order No. 166, which directed a rehearing on paragraph numbered (2) of said Order No. 134, and, it appearing that said rehearing was duly held by and before the Commission on the matters in said Order No. 166 specified on the 31st day of December, 1907, and by adjournment duly had on the 14th day of January, 1908, and by adjournment duly had on the 15th day of January, 1908, Mr. Commissioner Bassett presiding, and proof being taken, and Grosvenor H. Backus, Esq., appearing for the Commission, and John J. Kuhn, Esq., appearing for the railroad company.

Now, it being made to appear after the proceedings upon said rehearing that it is just, reasonable and proper that said Order No. 134 should be modified in the manner hereinafter set forth,

Therefore, on motion of George S. Coleman, Esq., Counsel to the Commission, It is ordered, That paragraph numbered (2) of said Order No. 134, made the 4th day of December, 1907, be, and the same hereby is, modified so as to read. as follows:

"(2) That said company by or before the 15th day of April, 1908, provide and equip all of its open cars that are to operate into a switch-back terminal with two automatic circuit breakers of modern type, and connect such circuit breakers in multiple on each such car, and at all times maintain both the said circuit breakers on each such car in good and perfect repair and keep the same properly adjusted for the capacity of the motors of the cars on which they are placed, and that the circuit breaker over the motorman's head shall at all times be the one operated.

"That said company by or before the 15th day of April, 1908, provide and equip all the rest of its open cars with at least one circuit breaker of modern type and at all times maintain the said circuit breaker in good and perfect repair and keep the same properly adjusted for the capacity of the motors of the car on which it is placed. and that the car shall at all times be operated so that said circuit breaker shall be above the motorman's head.

"That said company by or before the 15th day of April, 1909. provide and equip all of its open cars with two automatic circuit breakers of modern type and connect such circuit breakers in multiple on each car and at all times maintain both the said circuit breakers on each car in good and perfect repair and keep the same properly adjusted for the capacity of the motors of the car on which they are placed, and that the circuit breaker over the motorman's head shall at all times be the one operated."

And it is further ordered. That except as to the portion herein before modified, said Order No. 134 shall remain in full force and effect until modified by the further order of this Commission.

And it is further ordered, That this order shall take effect immediately.

And it is further ordered. That within five days the said Coney Island and Brooklyn Railroad Company notify the Public Service Commission for the First District whether the terms of this order are accepted and will be obeyed.

On motion of Commissioner Bassett the following resolution was adopted:

Whereas, Final Order No. 238 of this Commission duly made on the 4th day of February, 1908, directed and required the Coney Island and Brooklyn Railroad Company by or before the 15th day of April, 1908, to equip all of its open cars so that they could at all times be run with an automatic circuit breaker of modern type in operation over the motorman's head and to run said open cars with such an automatic circuit breaker of modern type in operation over the motorman's head; and

Whereas, said Final Order No. 238 was duly served on said company; and Whereas, said company on the 13th day of February, 1908, duly acknowledged service of said order and accepted said order and agreed to obey its provisions; and Whereas, said company has failed, omitted and neglected to obey, observe or comply with said Final Order No. 238, and has failed in at least fifteen instances

to equip said open cars as directed in said order and to run the same with an automatic circuit breaker of modern type in operation over the motorman's' head; Therefore, be it

Kesolved, That the Counsel to the Commission be and hereby is authorized and directed to commence an action or actions against the said Coney Island and Brooklyn Railroad Company to recover all forfeitures and penalties incurred for said violations of said Order No. 238, and to prosecute the same to final judg ment pursuant to the provisions of the Public Service Commissions Law. June 26, 1908.

In the Matter
of the

Hearing on the motion of the Commission on the question of compliance by the CONEY ISLAND AND BROOKLYN RAILROAD COMPANY with the requirements of Order No. 134 of the Public Service Commission for the First District as modified by Order No. 238 of said Commission, with respect to the equipment and operation of cars with automatic circuit breakers.

HEARING ORDER No. 828.
November 10, 1968.

It is hereby ordered, That a hearing be had on the 19th day of November, 1908, at 3:00 o'clock in the afternoon, or at any time or times to which the same may be adjourned at the rooms of the Commission, No. 154 Nassau street, in the borough of Manhattan, city and State of New York, on the question of compliance by the Coney Island and Brooklyn Railroad Company with Orders No. 134 and 238 of this Commission in respect to the equipment and operation of cars with automatic circuit breakers.

Hearing beld November 19th.

OPINION OF COMMISSION.
(ADOPTED DECEMBER 29, 1908.)

COMMISSIONER BASSETT :

An action having been brought in the Supreme Court, Kings county, by the counsel to the Commission in the name of the People of the State of New York against the Coney Island and Brooklyn Railroad Company to recover penalties for fifteen violations of Order No. 134 of the Commission as modified by Order No. 238, the railroad company applied to the Commission to discontinue said action en the ground that the violations had been unintentional and unavoidable. Upon that application the Commission issued Order No. 828 for a hearing on the question of the company's compliance with Orders Nos. 134 and 238. It is conceded by the company that the company in fifteen separate instances violated the order of the Commission in operating cars without an automatic circuit breaker over the motorman's head. This was a direct violation of the main purpose and of the express provision of Order No. 134 as modified by Order No. 238. These orders were adopted after a hearing in which the question of proper equipment and operation of trolley cars in the matter of circuit breakers was considered at length; and it was made plain in the course of that hearing that the policy of the Commission was to eliminate delays and to bring about increased safety of operation by having the cars of the defendant company equipped with circuit breakers in accordance with the usage adepted on well operated roads.

The excuse of the company is that special circumstances had required the company to switch back cars in the middle of their run, which ordinarily ran around the loop, and that this deviation from their regular schedule of operation was caused by blocks on the line or other unavoidable circumstances and was made in the interest of the traveling public. The company states that it has been found impracticable and impossible to operate all of its cars on any route around loops without fail and that in consequence of this fact the company has equipped all of its cars with two automatic circuit breakers so that hereafter it will be possible to carry out the order of the Commission in this respect.

The company is censurable for the manner in which its operating expert misled the Commission, and further for its failure to advise the Commission when it found it impracticable to operate its cars in strict compliance with the terms of the Commission's order. The Order No. 238 modifying Order No. 134 took effect

on the 4th day of February, 1908, and required the company to complete the equipment of its cars so as to carry out the order by or before April 15, 1908. The particular violations which were observed by the Commission's inspectors occurred on April 29, 1908, two weeks after the order was fully in force.

It appears from the evidence on the present hearing that the officials of the company instructed their subordinates to comply with the terms of the Commission's order and it is claimed that the only departures from the order were in cases where blocks on the line or other exigencies of traffic conditions required the cutting out and turning back of its cars in the middle of a run. It also appears from the evidence that when the company discovered that it would be impracticable at all times to comply with the terms of the order without a more extensive addition to their equipment than had at first been contemplated, the company gave orders to have all its cars equipped with two automatic circuit breakers and that for some time past the company has been operating all of its cars with such equipment.

In view of this provision by the company in excess of the requirements of the order, I recommend the adoption of a resolution authorizing the counsel to the Commission to consent, subject to the approval of the court, to the discontinuance of the action which has been brought to recover penalties under Order No. 134 as modified by Order No. 238.

The following resolution was thereupon moved and duly seconded:

Whereas, by direction of the Commission the Counsel to the Commission has brought an action in the Supreme Court, Kings county, in the name of the People of the State of New York against the Coney Island and Brooklyn Railroad Company, to recover penalties for violations by said company of Order No. 134 of this Commission, as modified by Order No. 238; and

Whereas, it appears after a hearing that the officers of the said company instructed their employees to comply with the terms of said order; and that the said violations were caused by lack of foresight and errors of judgment, without intent to disregard the terms of said order; and

Whereas, it appears further after said hearing that said company has of its own initiative expended a considerable sum of money in the installation of equipment in excess of that required by the terms of said order, and has done so for the purpose of assuring at all times compliance with said order;

Now, therefore, on motion duly made and seconded, it is

Resolved, That the Counsel to the Commission be and he hereby is authorized and directed to make a stipulation with said Coney Island and Brooklyn Railroad Company for the discontinuance of said action, without costs, subject to the approval of the court having jurisdiction of the same.

The resolution was adopted December 29, 1908.

RECEIVERS.

* [ Receivers appointed by Federal Court are subject to the orders of the Commission.

It is the duty of such receivers to render annual reports and they are subject to penalty for default.

Mandamus will lie to enforce this duty.]

Various questions came up in connection with the operation of the street railroads in Manhattan by Federal receivers and the counsel to the Commission rendered opinions as follows:

OPINION OF COUNSEL.

Hon. WILLIAM R. WILLCOX, Chairman:

March 21, 1908.

SIR- Referring to your letter of March 9th, asking for my opinion as to the binding effect of the Commission's orders directed to the receivers of the New York City Railway Company and of the Third Avenue Railroad Company, I beg to advise you as follows:

These receivers were appointed in causes pending in the United States Circuit Court, and, under United States Statutes, section 721, Act March 3, 1887. Ch. 373, sections 2. 3 (as amended 1888), the receivers must manage and operate the property according to the requirements of the Public Service Commissions Law, which is one of the valid laws of the State within the meaning of that act.

See footnote, page 9.

It does not follow, however, that the receivers are in every respect subject to the orders of the Commission, for it is true that the possession of the receivers is the possession of the court, and their possession must not be interfered with by the State courts, by the State Legislature or by a State Commission without leave of the Federal Court that appointed the receivers.

The decisions of the courts in interpreting the act of March 3, 1887, as amended, recognize clearly the distinction between the duty of the Federal receivers to manage and operate the property pursuant to State laws, and the duty of the Federal receivers to keep possession of that property. State Statutes that prescribe how the property shall be operated have been enforced. State Statutes giving State officers power to remove property from the receivers' possession have not been enforced.

In the case of Erb vs. Morasch, 177 U. S. 584, the Supreme Court of the United States held it to be the duty of the Federal receivers to operate the railroad according to State laws, and upheld a city ordinance limiting the speed of trains operated by Federal receivers. In the Matter of Tyler, 149 U. S., 164, the same court held that property in the possession of Federal receivers is not subject to seizure and levy under process issuing from State court to enforce collection of a State tax.

The order of your Commission prescribing safe, adequate and reasonable methods of operation are, in my opinion, binding upon the receivers, as are all orders calling for increase in the number of cars operated. An order of your Commission, the effect of which was to take property out of their hands, would not be upheld unless the Federal Court approved its enforcement. The mere fact that the Commission's order would cause the expenditure of money is not a sufficient reason for refusal by the receivers to obey the Commission's orders.

An order to repair cars is to a certain extent an interference with receivers' possession, but I believe it would be upheld as made pursuant to a State law governing the management and operation of the railroad and which did not take the property out of the receivers' possession. If, however, your order directed the receivers to send a number of cars back to the manufacturers for overhauling, I believe the order could not be enforced as it would take the property out of the hands of the receivers.

Having outlined the effect of orders of the Commission directed to the receivers on the assumption that the Federal Court had given no instructions to the receivers, it now remains to inquire what action has been taken by the Federal Court.

On October 8, 1907, upon application made by the receivers of the New York City Railway Company for instructions, Circuit Judge Lacombe, in Pennsylvania Steel Company vs. New York City Railway Company, 157 Fed. Reporter, 440, at 445, said:

"The controlling element in the operation of the property by the receivers will be the circumstance that such property is devoted to the public service. The traveling public are to be first considered; the service already performed by the roads must be kept up, and improved upon so far as may be. In the matter of improvements the receivers are fortunately relieved at least in part from the burden of devising improvements in the system, by the exist ence of the Public Service Commission. That bedy is making a careful and exhaustive investigation into all such questions, and may prescribe various changes in construction, equipment, or operation devised and adapted to secure better service. These directions of the Public Service Commission will be carried out by the receivers so far as the income from operating the roads will permit; whether they should also undertake to borrow money in order to complete such changes is a question which can be determined subsequently when it is known just what those changes are. The receipts from car service will be devoted, first, to maintenance, including all necessary repairs and replacements so as to avoid breakdown at any point, and to operation, including not only employees, materials, and supplies, but also the adjustment of all claims arising by reason of such operation, and the obligations due to the state or municipality for percentage of gross receipts, taxes, etc., and the necessary expenses of the receivership."

The effect of this instruction is to lend force to the Commission's orders and I believe that under this instruction the receivers would be unable successfully to resist an order even though it removed property from their possessions, unless new instructions were given to meet that situation. I have prepared a memorandum of authorities bearing on the question, which is on file in this office and available at any time.

For your convenience, I send you a copy of the Federal enactment of March 3, 1887, as amended.

[As to the filing of reports by receivers, see opinion of counsel under date of October 29, 1908, published herein on page 274].