lation, in which the entire subject of transportation was thoroughly discussed in all its bearings, has there been, to my knowledge, any agitation for the regulation of water transportation; nor is it covered by the Interstate Commerce Act, upon which the Public Service Commissions Law is so largely modeled, save where those agencies are operated in conjunction with railroads. In this State, during the gubernatorial campaign preceding the enactment of this legislation, in which the discussion of these questions was widespread, there were no abuses in the manage ment of ferry or navigation companies brought to light and there was no public demand for legislation affecting them, nor was there any reference to them in the Governor's message, pursuant to the recommendation of which this law was passed. Regulation for railroads and all carriers connected with them in any way, and of gas and electric corporations, was demanded and was granted, but there was no such demand in the case of ferry companies, and in the public mind the necessity for their regulation did not exist. I, therefore, beg to report that in my opinion the Commission is without jurisdiction over ferries, and has, therefore, no power to act upon the complaint referred to. Very truly yours, Jurisdiction (Signed) LE ROY T. HARKNESS, Commission for the First District Ferries In cluded in Railroad - Public Service Commissions Law, Section 2. OPINION OF COUNSEL. October 11, 1907. TRAVIS H. WHITNEY, Esq., Secretary, Public Service Commission for the First District: DEAR SIR-I have your letter of the 10th inst., transmitting a copy of a letter from Richard L. Leo, dated the 8th inst., complaining of the ferry service maintained by the Long Island Railroad between Thirty-fourth street, in this borough, and Long Island City. Without reference to the general question of jurisdiction of ferries disassociated with railroad companies, I desire to advise you that in my opinion the Commission has jurisdiction over the case presented by virtue of section 2 of the Public Service Commissions Law, which provides in part that "the term railroad' includes every railroad with all ferries * used, operated, controlled or owned Yours very truly, by or in connection with any such railroad." (Signed) ABEL E. BLACKMAR, Counsel to the Commission. Jurisdiction Over Common Carriers" Doing Business Exclusively" - Filing Schedules - Public Service Commissions Law, Sections 2, 5. OPINION OF COUNSEL. October 25, 1907. TRAVIS II. WHITNEY, Esq., Secretary, Public Service Commission for the First District: DEAR SIR.I have your letter of the 19th inst., transmitting a communication from the New York and New Jersey Steamship Company of the 18th inst., inquiring whether they are required to file freight schedules under the Public Service Commissions Act. The company, as a freight company. is. as respects its business transactions within this State, within the definition of the term common carrier" in section 2 of the act; but the company in this case raises the question whether, since all its business is not transacted within the First District, it comes within the jurisdiction of the Commission for that district. Section 5 provides that the jurisdiction of the Commission for the first district shall extend (paragraph IV) "to any common carrier operating or doing business exclusively within that district." The language of this paragraph is ambiguous and immediately gives rise to the question whether, in order to come within the jurisdiction of this Commission, all the carrier's business must be transacted in this district or whether the jurisdiction of the Commission attaches to that portion of the business of the company which is transacted exclusively within the district. I favor the latter view, although there is considerable force in the argument that according to strict rules of grammatical construction the jurisdiction of this Commission only attaches to a company which does all its business here. The primary object is, of course, to ascertain the intention of the Legislature and the scheme of the act is to place all matters arising within the first district within the jurisdiction of the Commission for that district and all the matters arising in the second district within the jurisdiction of the Commission for that district. Such companies are, of course, within the jurisdiction of one of the Commissions and it is difficult, keeping in mind the scheme of the act, to understand what reason there would be for placing under the jurisdiction of the Commission for the second district business which is entirely consummated within this district. * In common parlance the words "doing business exclusively are usually understood as referring to the business transacted and I think the Legislature in adding to the words "operating ** exclusively" the words "doing business exclusively" intended that the Commission for this district should have jurisdiction not only over those companies which transact their entire business here, but also the business of other companies which is exclusively within this district. As a practical matter I think it would be well for the Commission to require reports from these companies, basing its action upon the construction which I have given this paragraph. This same reasoning applies to the cases of express companies about which I have conferred with Commissioner Eustis, and in which case it was decided that we should require them to file the schedules called for by the act. Yours very truly, ABEL E. BLACKMAR, (Signed) Counsel to the Commission. Commission May Rescind Resolution Adopting Rapid Transit Route Passed by Board of Rapid Transit Railroad Commissioners Methods of Constructing Subways-Rapid Transit Act, as Amended by Elsberg Law. OPINION OF COUNSEL. Public Service Commission for the First District: September 18, 1907. GENTLEMEN.I am in receipt of your communication dated yesterday, in which you ask for opinions on the following questions: (1) Whether the Brooklyn Rapid Transit Company has any franchise rights in New Utrecht avenue in Brooklyn, and the nature and extent of such rights. (2) Whether the Rapid Transit Company Act requires the Public Service Commission to proceed to make contracts for the construction of the Fourth avenue subway. I have referred the first of these questions to one of my assistants for investigation and will report the result of such inquiry later. I answer the second of said questions as follows: Section 34 of the Rapid Transit Act contains the following provision: "The Board of Rapid Transit Railroad Commissioners for any city shall, prior to the time of the final grant of any franchise under the provisions of this act or the making of a contract for construction of any railroad under the provisions of this act, have power to rescind and revoke any resolution or resolutions of such board adopting any routes or general plan for the rapid transit railroad adopted by such board and, in the discretion of the board, in lieu thereof, to adopt new routes and general plans." It necessarily follows from this that your board is not under any legal compulsion to construct the Fourth avenue subway, but has power to rescind the resolution establishing such route, and so put an end to the whole project. The question, however, might arise, whether your board is limited in its action to one of two alternatives to proceed immediately with the construction of the said subway, or to rescind the resolution establishing the route. The decision of this question requires a further examination of the law. At the time when your board came in power, the Beard of Rapid Transit Railroad Commissioners had adopted routes and a general plan for a number of subway lines in the city of New York, including routes known as: (1) The Seventh and Eighth avenue route. (2) The Lexington avenue route. (3) The Third avenue route. (4) The Jerome avenue route. (5) The Fourth avenue and Bensonhurst route. (6) The (so-called) Tri-Borough route. (7) The West Farms and White Plains route. The routes, together with others, had been adopted by the Board of Rapid Transit Railroad Commissioners, approved by the Board of Estimate and Apportionment and the consents of the abutting property owners or of the Appellate Division in lieu thereof had been obtained. The estimated cost of the routes above specified is between 150 and 200 million dollars. Under the Rapid Transit Act, as amended by the Elsberg Law, the city might proceed with these subways in any of the four following ways: First. By a contract for construction, maintenance and operation, with the same person. Second. By a contract or contracts for construction, with separate contracts for equipment and operation. Third. By a contract or contracts for construction and equipment and a separate contract for operation. Fourth. By a contract or contracts for construction and equipment followed by municipal operation. It is the province of the Board of Estimate and Apportionment to decide which of these courses shall be pursued. On the 7th of December, 1906, the Board of Estimate and Apportionment adopted a resolution, recommending to the Board of Rapid Transit Railroad Commissioners that alternate bids be invited, first, for construction alone, and second, for construction, equipment and operation, for each of the routes hereinabove specified. Under this resolution, bids for three of the subways, viz., the Seventh and Eighth avenue, the Third avenue and the Jerome avenue, were invited; but no proposals were received. On the 4th day of June, 1907, at the request of the Rapid Transit Railroad Commissioners, the Board of Estimate and Apportionment passed a resolution modifying the resolution hereinbefore referred to of December 7, 1906, as to the Fourth avenue and Bensonhurst route and the said Tri-Borough route, and, instead of the provisions of the resolution of December 7, 1906, the Board of Rapid Transit Railroad Commissioners was authorized to let contracts for construction only for the Manhattan Bridge route, part of route 9-C in Brooklyn, part of route 11-E-1 in Brooklyn, and routes 11-A, 11-B, 11-F (Bensonhurst route) in the borough of Brooklyn said routes together forming a line from Chrystie street in the borough of Manhattan, across the Manhattan Bridge, and under Fourth avenue in the borough of Brooklyn. The Rapid Transit Act contains the following provision: "As soon as such consents, where necessary, shall have been obtained for any rapid transit railroad or railroads and the detailed plans and specifications have been prepared, as is provided in section 6 of this act, the said board, for and in behalf of the city, shall enter into a contract with any person, firm or corporation which, in the opinion of said board, shall be best qualified to fulfill and carry out said contract, for the construction of said road or roads," etc. This provision must be read in connection with other clauses, viz. : (Section 34.) "And the said board may in any case contract for the construction of the whole road or all the roads provided for by the aforesaid plans in a single contract, or may by separate contracts, executed from time to time, or at the same time, with one or more such persons, firms or corporations, provide for the construction of such road or roads," etc. (Section 34-e.) "Nothing contained in this act shall be deemed, or be construed as intending, to limit, or as limiting. in any manner, the discretion of the board of rapid transit railroad commissioners, provided in the opinion of the board of estimate and apportionment, or other analogous local authority of such city it is expedient, practicable and in the public interest to do so, to enter into contracts for construction, equipment. maintenance and operaton with the same person, firm or corporation, or for any one or more of said purposes with the same person, firm or corporation, or with different persons, firms or corporations, either in one contract or in separate contracts, and at any time or times.' (New section, L. 1906, Ch. 472, § 6.) These provisions impose on the board the general duty to proceed with construction of a system of rapid transit in the city. But there is no greater obligation to proceed with one route than with another. As to the time when bids shall be invited for any particular route, I believe that discretion rests with the Commission as successor to the power of the Board of Rapid Transit Railroad Commissioners. This discretion in the Commission was recognized by the Appellate Division of the Supreme Court in the Matter of the Board of Rapid Transit Railroad Commissioners, etc., 114 App. Div. 379. This was an application to approve nineteen different routes, the estimated cost of the construction, and equipment of which aggregated $450,000,000, whereas the city's borrowing capacity was only $61,000,000. The court refused to tie up these routes permanently, and limited its approval to a period of two years, saying: This will enable them (i. e., the Board) within the period named, in view of the then existing condition of the city's finances, to determine just what routes should be built; and after that time they should be required, if able to construct other routes, to renew their application to this Court." I am of the opinion that the Commission is under no legal obligation to proceed at once to contract for the construction of the Fourth avenue subway; but has discretion as to the time when the contract shall be made, and also, as has been pointed out, has full power to rescind the resolution adopting this route. (Signed) Yours respectfully. ABEL E. BLACKMAR. December 17, 1907. Public Service Commission for the First District: GENTLEMEN.—I have been asked to advise the Commission whether a change can be made in the location of the subway structure of the Brooklyn and Manhat tan loop in Centre street by supplemental contract with the contractors and without securing the consent of the Board of Estimate and Apportionment and of the abutting property owners. Under section 38 of the Rapid Transit Act, the Commission, as successor to the Board of Rapid Transit Railroad Commissioners, may, from time to time, with the consent of the bondsmen or sureties of the contractor, agree with the contractor upon changes in and modifications of the contract or the plans and specifications upon which the road is to be constructed. It is, however, provided therein that no change or modification in the plans and specifications consented to and authorized pursuant to section 5 of the act, shall be made without the further consent and authorization provided for in said section. The consent and authorization last herein mentioned refers to the consent of the Board of Estimate and Apportionment and of the abutting property owners. Section 4 provides that the general plan shall show the mode of operation and contain such details as to manner of construction as may be necessary to show the extent to which any street, avenue or other public place is to be encroached upon and the property abutting thereon affected. We have, therefore, to determine whether this proposed modification alters the extent to which the street is to be encroached upon and the abutting property thereon affected, as shown in the general plan of the route, as it was originally consented to by the municipal authorities and authorized by the Appellate Division. The case of the Park avenue deviation has been several times before the court. The maps and drawings of route No. 1 were, by resolution of the Board of Rapid Transit Railroad Commissioners, passed on February 4th, incorporated in and made a part of the resolution showing the route and general plan. These drawings showed that the tunnel was to be located thirty-five feet easterly from the easterly side of Park avenue, and as they were a part of the resolution adopting the route and general plan, they determined the extent to which Park avenue could be legally encroached upon and the rights of abutting property owners legally af fected. Subsequently, the location of the subway was changed without the consent of the municipal authorities or the abutting property owners, so that the easterly wall thereof was within seven feet of the easterly side of Park avenue. The court held that this deviation from the route was illegal. I have, therefore, examined the resolutions and the maps and plans establishing route No. 9, namely, the route through Centre street, to determine if they are so drawn as to restrict or limit the extent to which Centre street may be used for subway construction, either as against the city or as against the abutting property owners. The general route through Centre street, as laid out by the Board of Rapid Transit Railroad Commissioners, locate the subway generally in Centre street. The plan of construction provides that there shall be four tracks in Centre street; that the tracks shall be placed in general under the center of the longitudinal streets, as far as practicable and convenient, but if required may be diverted to one side or the other of such longitudinal streets; that the roof of the tunnel shall be as near the surface as street conditions and grades will conveniently permit; that the tunnels above described shall in no case be less than thirteen feet in height in the clear; that there shall be a width in the tunnels not exceeding fifteen feet for each track in addition to the thickness of the supporting walls, except that at stations, switches, turnouts, curves and cross-overs the width may be increased; that stations and station approaches shall in general be at the intersection of streets and shall be built under or over the streets and immediately adjoining private abutting property, or through private property, or both under or over the streets and through private property; that wherever it shall be necessary for the proper maintenance of pipes or other subsurface structures, the width of the tunnel may be enlarged on either or both sides by an additional width on either side of the route not to exceed fifteen feet. These are the substantial limitations upon the right to use the street and to affect abutting property which I find in the general plan. Drawings were also annexed and presented to the Board of Estimate and Apportionment and the Appellate Division, but by resolution of the Board of Rapid Transit Railroad Commissioners it was expressly provided that they were adopted for convenience merely and not to be deemed a part of the description of the routes or a part of the general plans for any purpose whatever. Up to this point this opinion has been devoted to the inquiry whether it is necessary to submit any modification of this contract to the Board of Estimate and Apportionment under the proviso contained in section 38, on the ground that such change involves a modification of the original route and general plan. It still remains to consider whether the provisions of section 37 require that an amendatory contract should be submitted to the Board of Estimate and Apportionment. Such section provides for the application to the Board of Estimate and Apportionment to fix the amount of bonds to be sold for the purpose of furnishing money to carry out the contract. It further provides that the amount of bonds shall not exceed the limit prescribed by the Board of Estimate and Apportionment, and "No contract for the construction of such road or roads shall be made unless and until such board of estimate and apportionment or such other local authority shall have consented thereto and prescribed a limit to the amount of bonds available for the purposes of this section, which shall be sufficient to meet the requirements of such contract in addition to all obligations theretofore incurred and to be satisfied from such bonds." To determine whether this provision requires a submission of such modifying contract, it is necessary to trace the history of the law in this respect. Prior to 1904, the Rapid Transit Act provided that the total amount of bonds to be sold without the consent of the Legislature first having been obtained should not exceed fifty millions of dollars, with a possible increase of $5,000,000 for the acquirement of necessary lands and easements. In that year, for the purpose of permitting other and additional rapid transit contracts to be made, this provision was repealed, and in the place thereof was enacted the provision hereinabove quoted. In 1906, the Elsberg bill was passed, which referred the matter to the Board of Estimate and Apportionment, to decide whether the contract should be one for construction, equipment and operation, or for construction and equipment, or for construction only, and the provision already above quoted was continued in the law. At the time of the enactment or the Elsberg bill and as part of the same bill, section 38 was also amended by striking out the word "and" in such section and inserting the word "or" in its place, thus showing the legislative intent to continue section 38 in full operation. The conclusion which I draw is, that the above quoted provisions of section 37 refer to contracts which require the appropriation of money and do not refer to a modification of the contract which does not increase the cost of the work of the subway. When the clause limiting the total amount of bonds which could be sold for rapid transit purposes was repealed, it was the apparent legislative intent to commit to the Board of Estimate and Apportionment the final determination of the amount of money to be used for rapid transit construction, and to that end it provided that contracts for construction should be presented to the Board of Estimate and Apportionment, so that such board might base upon such contracts their determination as to the amount of money to be expended. I, therefore, am of the opinion that it is not necessary to present any modifying contract to the Board of Estimate and Apportionment and obtain their consent thereto, unless either such modifying contracts - first, contain a modification of the route and general plan originally consented to by the Board of Estimate and Apportionment and by the property owners or the Appellate Division, or second, require the expenditure of a larger sum of money. I wish also to call your attention to the fact that it will be necessary to agree with a number of different contractors before this modification can be carried out, and any of them can, by refusing to consent, put a practical veto along the whole route. This proposed modification is not such as could be carried out by the mere direction of the engineer under the provisions of the contract. Very truly yours, (Signed) ABEL E. BLACKMAR, Construction and Operation of Flatbush Avenue Subway Extension as an Extension of Contracts Nos. 1 and 2 Rapid Transit Act, Sections 32a, 38. OPINION OF COUNSEL. December 23, 1907. Public Service Commission for the First District: DEAR SIRS. I have the secretary's letter of the 12th inst., transmitting a copy of the following resolution: "Resolved, That the counsel be requested to prepare an opinion on the method or methods whereby a contract for the construction and operation of an extension of the Fulton street, Brooklyn, subway, from Atlantic avenue station to Willink entrance, Prospect Park, can be made, and whether it can be built as an extension of Contracts Nos. 1 and 2, and operated for 35 years." On examining this matter I find that this route extending from Atlantic avenue to Parkside avenue was considered by the Rapid Transit Board as an extension of Contract No. 2, being the contract for the construction of the Brooklyn-Manhattan route, and was, at the time of its adoption, greatly desired by the Interborough Rapid Transit Company as a complement to the subway already under construction by it. The route was adopted by the Rapid Transit Board on March 24, 1904 (Rapid Transit Minutes, Vol. 5, p. 2598), by the Board of Aldermen, which then had jurisdiction to pass on franchises on August 4, 1904, and by the Mayor on August 22, 1904. The consents of the abutting property owners were obtained, as certified to the board by its counsel on December 29, 1904 (Rapid Transit Minutes, Vol. 5, page 3061), and have been recorded and are now in the safe in the secretary's office. The only remaining consent necessary was that of the Park Commissioner, which was refused because of the injury that would be caused by the subway construction to the trees alongside the park on Ocean avenue. After some discussion he agreed to give his consent if the subway at that point was moved about twelve feet, encroaching upon private property on the other side of the street, which was to be acquired by the city at an estimated expense of about $300,000. No steps have been undertaken in that direction and the estimated cost would probably be greater today. As showing the route as laid out, I transmit herewith blue-prints of the two drawings adopted with the route and general plan by the Rapid Transit Board. I understand that the Commission at present only contemplates the construction |