To the Honorable Council of City of Cleveland,

Cleveland, Ohio.

Gentlemen:

the

Replying to your resolution No. 44790, requesting the director of law to advise the council as to the right of the city to use bond funds of the division of water for the construction of a municipal ice plant, I beg to advise you that in my opinion it would not be legal for the city to make such an expenditure.

In this connection I am transmitting copy of an opinion in which I concur, rendered by the city solicitor to the council under date of September 13, 1911, which indicates a method whereby the city could legally manufacture ice for municipal purposes.

Very truly yours, W. S. FITZGERALD, Director of Law. September 13, 1911. To the Council of the City of Cleveland:

Gentlemen:

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I find on my table, apparently unanswered, your resolution file No. 22108, adopted July 10, 1911, questing the city solicitor to inform you whether it is within the power of the council to purchase and equip a plant for the manufacture of ice in connection with one of the city institutions for free distribution among the city's worthy poor, and in case such expendiure is not within the power of the city. whether the city through its proper officers, would have the right to manufacture ice if a plant for the purpose were given to the city: I assume that my verbal expressions of opinion on this subject have been taken as disposing of the matter, but in order that my opinion may be formally before you, I beg to say that municipal corporations have such powers, and such powers only as are conferred upon them by the legislature. In order to answer your question it is necessary to find either an expressed gift of the power to own and operate an ice plant, or the power must be so necessarily incident to some other power that is given in express terms as to follow as a matter of course.

In my judgment the city has not the power by any such inference, as it certainly has not by express donation, to own or operate a municipal ice plant, or to acquire such plant 'either by the expenditure of public funds or by gift. Of course

if the city undertook to manufacture ice at one of the hospitals or other public institution, the primary object of the plant being the economical management of the institution itself, there could be no objection to any excess ice being distributed through the director of public safety, as the administrator

diture of this money.

$65,000 PLAYGROUND BONDS Ord. No. 41372-Equipping Sterling Park, Ward 10, $5,000. Contract has been let and work nearly completed on shelter house and comfort station costing $5,000.

Ord. No. 41373-Equipping playground in Rockefeller Park, Ward 21. The unexpended balance is to be used in lighting and improving playground and for constructing stairway from Ansel rd.

Ord. Nos. 41378, 42214.-Purchase of land and improving playground in Ward 19. Contract has been let and work begun on construction of shelter house and comfort station in Wade Park costing $11,000.

Ord. No. 41379-Purchasing land and improving playground in Ward 4-$5,000. Nothing definite has been determined regarding expenditures of this money.

Ord. Nos. 41380, 43292-Purchase of land and improving playground Ward 3. Part of this unexpended amount has already been used in the erection of a fence and for installing apparatus. The balance will be used for a comfort station. Ord. Nos. 44118, 42225-Purchase of land and improving playgrounds, Ward 18. $700.00. Nothing definite decided on this expenditure.

Ord No. 44119-Purchase of land and improvement of playground, Ward 11. $600.00. This amount has already been used in constructing a comfort station.

Ord. No. 43291-Purchase of land and improvement of same for playground, Ward 14. Appropriation suits were begun in Insolvency court for acquiring necessary land. However, agreements were made for the purchase of land, costing about $9,000. The balance will be used in improving this land.

Ord. No. 43625-Construction of wading pool, Pennsylvania ave. playground. Fencing around this playground and apparatus for same has been ordered and will be erected very soon, $35,000 COMFORT STATION BOND Ord. No. 41651-E. 38th st. and E. 39th st., Ward 11. $600.00. A comfort station has already been erected on this playground with above and additional money. Very truly yours. SAMUEL NEWELL, Park Engineer.

The ordinance authorizes the appointment of an independent and largely uncontrollable commission, separate and apart from the regularly constituted city government. Cleveland This is opposed to the idea of concentration of government.

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The commission, authorized the act of the general assembly, will not only construct, but operate the subways. There is no provision for turning the subways over to the city government when completed and no provision for ending the life of the commission.

The commission is virtually independent of the city government and its acts cannot be controlled or directed except in indirect and ineffective ways. This situation may seriously complicate the renewal or modification of the Taylor ordinance next year.

No study has as yet been made of the relation of the proposed commission to our city charter. (The commission was authorized by the general assembly for Cincinnati and it hardly fits our city charter or Taylor ordinance).

The question before council is not the submitting of any proposition to the people. In fact, the commission may be authorized to expend the sum of $150,000.00 before any question must be submitted to the people.

While the commission by the act may itself determine routes and costs, it is apparent that there is already a determined purpose to submit this fall a bond issue in the sum of $3,500,000.00 for a subway in W. Superior ave, although no complete study of this or of the whole subject has as yet been made.

At times it is considered that the commission will use its powers to determine routes and costs. Again, there is to be a subway at once of a fixed cost in W. Superior ave. There is a lack of frankness that is to be regretted in dealing with a project of this magnitude.

West Superior ave. is the widest street in America and has a roadway accommodating eight lanes of travel The need of a subway there is not pressing.

Ontario st., E. Superior ave. and Euclid ave, need subways sooner than W. Superior ave.

The decision was made a year and one half ago to end the approaches to the high level bridge at W. 6th st. instead of at the square. The bridge and subway approaches should be completed and then it can better be determined the need of the immediate construction of a subway to the square.

No chances should be taken to delevel lay the high bridge. This structure should be open for traffic at the earliest possible time. The

mayor first advocated a policy that means delay and next denied such an intention. No chances should be taken.

Normal activities should proceed in war times, but a subway in W. Superior ave. is not urgent enough for the city to undertake now an improvement of such magnitude in view of the difficulty in obtaining labor and materials.

The subway proposition, as presented to council, is incomplete, uncertain and seemingly insincerethe two communications of the written into three weeks apart mayor show this to be true.

The proposition is too big to be toyed with and the appointment of men to handle this municipal ownership enterprise, not one of whom has been for municipal ownership, does not cure the bungling.

It is humorous to ask the present council, the majority of whom have been advocates of municipal ownership and who have worked hard for whatever measure of municipal ownership we have, including, the Taylor plan of street railway control, to authorize a commission of the kind promised-all opposed to municipal ownership.

There should first be a complete study of subways through an existing city agency, such as the office of the city engineer, in order that a general notion of plans and costs should be in the public mind. When this information is had the council, doubtless, will do everything possible to further down town terminal subways.

The city's finances are in a desperate condition. It seems imperative to submit this fall to the electors a deficiency bond issue in the sum of at least $2,500,000.00. The council should have exact information on this subject before it takes any action that may lead to the submission of any other bond issue this fall.

If any improvement bond issues are to be submitted this fall, the opening of Chester ave., Carngeie ave. and other streets is far more pressing than a subway in W. Superior ave.

The above is a brief statement of the main objections to authorizing the appointment of the kind of subway commission proposed at this time. Your committee invites a fuller consideration of these objections. The general assembly, on May 17th, 1915. passed an act authorizing the appointment of subway commissions in cities and the act was passed to meet the peculiar needs of the city of Cincinnati, although, by its terms, it is applicable to all cities of the state. The commission authorized to be appointed by this act has complete legislative and executive power and the constituted government of the city of Cleveland has no control over the work of the commission, except that the mayor may remove members for cause, and the people, by defeating the bond issue proposed by the commission, may, in effect, discharge the whole commission. A commission with such broad powers is not in harmony with what has been the political thought in Cleveland, namely-the concentration of governmental activities in the city. For instance, both the former mayor and the present mayor of the city of Cleveland have advocated a policy of either complete or partial elimination of the duplication of governmental forces through the existence of county and city government. Moreover, there is no provision in the act for the termination of the commission. It not only constructs

In

subways but operates them. this it differs from our recent court house commission, which had the power to build the court house but was required to turn the building over to the county government when completed. In this connection we may point out that the city hall building was built without a commission and with greater public satisfaction. An independent commission of the kind authorized by the act is specifically repugnant to the Cleveland idea for it hardly fits our charter or harmonizes with our Tayler ordinances. Next year of the city Cleveland will be confronted with the proposition of renewing the Tayler ordinance. This is mandatory. The Tayler ordinance may be renewed in exactly its present form or, with the consent of The Cleveland Railway Company, it may be modified before renewal. It seems very unwise to authorize the appointment of a subway commission whose acts cannot the council control, for thereby a situation will be created that may seriously interfere with the street railway adjustment that must be made next year. Under existing circumstances The Cleveland Railway Company is practically the only company which may use the subway and altogether too little thought and study has been given to this phase of the situation before the proposition was submitted to council. The president of The Cleveland Railway Company, moreover, doubted the wisdom of the immediate construction of a subway in W. Superior ave. in preference to other streets leading into the square such as Ontario st.

Discussions which have been had on this subject have emphasized at times the idea that the meaning of the ordinance before the council was to submit the question to the people and that the council ought not to hesitate on that subject. This is hardly the fact, however. If the council passes this ordinance a subway commission will be appointed with the independent powers enumerated above and this proposition will not be submitted t othe people unless a referendum is demanded by the people through petition. Again, the commission when appointed may expend the sum of $150,000.00 without any specific and direct authority from the people.

Your committee invites council to a careful consideration of the two communications which the mayor has sent to council on this subject: "June 15, 1917.

To the Honorable Council of the
City of Cleveland, Ohio.
Gentlemen:

I am herewith submitting to the council an ordinance providing for the appointment of a rapid transit commission in accordance with sections 4000-16 to 4000-28 of the general code of Ohio. This is a preliminary step to submitting to the people at the next general election the question of issuing bonds in the sum of $3,500,000.00 for the purpose of constructing and equipping underground rapid transit system units. I believe that procedure under these sections of the general code, while not exclusive, is the most practicable way of conducting this important work. Furthermore, It affords important advantages over general statutory methods in these respects:

Bonds which may be issued require only a majority affirmative vote instead of the usual two-thirds. The amount of bonds which may

be issued by vote of the people for rapid transit purposes is not limited by any act or statute except limitations contained in this act.

Responsibility for construction, operation and maintenance of the subway system is centralized in a board which is not burdened with performance of any other public duty or service.

The board is granted powers to acquire the necessary land for tracks, stations and terminals more effectively and quickly than by procedure under general law.

The plan for subway construction which I have in mind and which has been approved by the street railway commissioner and the city plan commission contemplates the immediate construction of a subway from the easterly terminus of the new high level bridge up Superior ave. with terminal stations under the public square, so designed as to be readily adaptable to any future general subway and terminal development. However, if the board is appointed, it should have an opportunity to consider all plans and suggestions which may be of value in finally solving the subway problem.

The completion of these units will have the immediate effect of eliminating from the surface all west side cars which constitute approximately 40 per cent of the entire street railway traffic. The improvement could be made at the present time at much less cost than hereafter, in view of the fact that the work on the new bridge approaches is now well under way.

I earnestly hope that I will secure the unreserved co-operation of the council and that favorable action will be taken on the ordinance at the earliest possible date. Respectfully yours, (Signed) HARRY L. DAVIS, Mayor." "July 9th, 1917. To the Honorable City Council of the City of Cleveland, O. Gentlemen:

In view of the fact that certain members of the council are quoted as being opposed to the ordinance providing for the appointment of a rapid transit commission because the names of its members have not been announced by me. I beg to inform you that if the ordinance passes I have determined, subject to their acceptance. to appoint Messrs. Chas. A. Otis, C. E. Adams, O. P. Van Sweringen, M. A. Bradley and Fielder Sanders as such commission.

I desire also to call your attention again to the fact that it is the power and duty of the commission to determine all plans for the location of subways and the order of building the same subject to the approval of the people.

In case the commission decides to proceed with the Superior ave. west unit first, I have been informed by competent engineers and I believe that it will not delay in any way the opening of the high level bridge, Respectfully,

(Signed) HARRY L. DAVIS.

Mayor."

It will be observed that in the first communication, the mayor describes the appointment of a subway commission as "a preliminary step" to the proposition of submitting next fall a proposed bond issue of $3,500.000.00 for a subway in W. Superior ave., although the act gives full power to the commission to determine routes and costs. In the same communication, however, the mayor conceded some authority to the commission in the following language: "it should have an opportunity to consider all plans and