called his attention to this violation, I desire to advise you that the contract under which the Bradley Contracting Company is constructing this section of the Brooklyn loop line provides:

The contractor agrees to comply with the provisions of the Labor Law, including section 3 thereof, as re-enacted by chapter 506 of the Laws of 1906. The contractor further agrees and stipulates that no laborer, workman or mechanic in the employ of the contractor, sub-contractor or other person doing or contracting to do the whole or a part of the work contemplated by this contract, shall be permitted or required to work more than eight hours in one calendar day, except in cases of extraordinary emergency caused by fire, flood or danger to life or property; and further that the wages to be paid for a legal day's work as hereinbefore defined to all classes of such laborers, workmen or mechanics upon the work contemplated by this contract, or upon any material to be used upon or in connection therewith, shall not be less than the prevailing rate for a day's work in the same trade or occupation in the borough of Manhattan, where the work hereby contemplated, about or in connection with such labor, is performed, as in its final or completed form to be situated, erected or used, and that each such laborer, workman or mechanic employed by the contractor or by any subcontractor or other person on, about or upon the work contemplated by this contract, shall receive such wages herein provided for. This contract shall be void and of no effect unless the contractor shall comply with the provisions of this paragraph. In obedience to the requirements of section 13 of the Labor Law, it is further provided that if the provisions of the said section are not complied with this contract shall be void."

This provision of the contract is inserted in pursuance to the express direction of the Legislature, and although the earlier statute of 1897 was declared unconstitutional it has been re-enacted by the Legislature upon the adoption of a constitutional amendment authorizing legislation of this character. The amendment to the Constitution, Article XII, section 1. adopted at the general election of 1905, which went into effect January 1, 1906, provides :

"Section 1. It shall be the duty of the Legislature to provide for the organization of cities and incorporated villages and to restrict their power of taxation, assessment, borrowing money, contracting debts and loaning their credit, so as to prevent abuses in assessments and contracting debt by such municipal corporations; and the Legislature may regulate and fix the wages or salaries, the hours of work or labor, and make provision for the protection, welfare and safety of persons employed by the State or by any county, city, town, village or other civil division of the State, of by any contractor, or sub-contractor performing work, labor or services for the State, or for any county, city, town, village or other civil division thereof."

Pursuant to this provision the Legislature, by the provisions of chapter 506 of the Laws of 1906, re-enacted section 3 of chapter 415 of the Laws of 1897, which had been declared unconstitutional prior to the adoption of the amendment to the Constitution.

"Section 3. Hours to constitute a day's work. Eight hours shall constitute a legal day's work for all classes of employees in this State, except those engaged in farm and domestic service unless otherwise provided by law. This section does not prevent an agreement for overwork at an increased compensation except upon work by or for the State or a municipal corporation, or by contracting or sub-contractors therewith. Each contract to which the State or a municipal corporation is a party which may involve the employment of laborers, workmen or mechanics shall contain a stipulation that no laborer, werkmen or mechanic in the employ of the contracter, sub-contractor or other person doing or contracting to do the whole or a part of the work contemplated by the contract shall be permitted or required to work more than eight hours in any one calendar day except in cases of extraordinary emergency caused by fire, flood or danger to life or property. The wages to be paid for a legal day's work as hereinbefore defined to all classes of such laborers, workmen or mechanics upon all such public works, or upon any materials to be used upen or in connection therewith shall not be less than the prevailing rate for day's work in the same trade or occupation in the locality within the State where such public work on, about or in connection with which such labor is performed in its final or completed form is to be situated. erected or used. Each such contract hereafter made shall contain a stipulation that each such laborer, workman or mechanic employed by said contractor, sub-contractor or other person, on, about or upon such public work, shall receive such wages herein provided for. Each contract for such public work hereafter made shall contain a provision that the same shall be void and of no effect unless the person or corporation making or performing the same shall comply with the provisions of this section; and no such person or corporation shall be entitled to receive any sum nor shall any officer, agent or employee of the State or of a municipal corporation pay the same or authorize its payments from the funds under his charge or control to any such person or corporation for work done under any contract, which in its form or manner of performance violates the provisions of this section, but nothing in this section shall be construed to apply to persons regularly employed in State institutions, or to engineers, electricians and elevator men in the department of public buildings during the annual session of the Legislature, nor to the construction, maintenance and repair of highways outside the limits of cities and villages."

The Supreme Court of the United States in 206 U. S., considered the constitutionality of such legislation and upheld the constitutionality of an Act of Congress providing that eight hours should constitute a day's work under Federal contracts. This would seem to remove all doubt as to the constitutionality of this legislation.

I should advise that peremptory notice be given the Bradley Contracting Company to obey the requirements of its contract and that in case of failure to remedy this violation within the time specified in the notice, the Commission may declare this contract to be void and request the comptroller to make no payments therefor. Yours very truly,

(Signed) ABEL E. BLACKMAR,

Counsel to the Commission.

The Secretary was directed to send peremptory notice to the contractor, as suggested by the Counsel.

Lease of Permanent Offices by the Commission not to be Submitted to the Comissioners of the Sinking Fund - Designation of Newspapers for Rapid Transit Advertisements City Charter, Sections 149, 217; Public Service Commissions Law, Section 10; Rapid Transit Act, Sections 36, 37.

OPINION OF COUNSEL.

NEW YORK, July 31, 1907. TRAVIS II. WHITNEY, Esq., Secretary, Public Service Commission for the First District:

DEAR SIR.I am in receipt of your letter of July 29, advising me of a resolution of the Commission, referring to me the question as to whether the lease of permanent offices by the Commission should be submitted to the Sinking Fund Commission for approval, and also the question of the designation of newspapers for Rapid Transit advertisements.

Mr. Semple, of this office, in a conversation yesterday with Deputy Comptroller Phillips and Mr. Brown, of the finance department, real estate bureau, was informed by them that in their opinion leases by the Public Service Commission for the First District should be submitted for approval to the commissioners of the sinking fund. because the commissioners of the sinking fund are "Trustees of Public Buildings" within the meaning of section 10 of the Public Service Commissions Law, and also because under section 217 of the city charter, applications for leases for the purposes of the city of New York or any of the counties contained within its territorial limits, must be presented to and passed upon by the commissioners of the sinking fund; and by section 149 of the charter, when such leases are authorized by the board of sinking fund commissioners, they must be entered into by the Comptroller on behalf of the city.

I am of the opinion, however, that the reference in section 10 of the Public Service Commissions Law to trustees of public buildings applies only to those officials who are defined by the Public Buildings Law as trustees of public buildings, viz.. the Governor, Lieutenant-Governor and Speaker of the Assembly, who by that act are entrusted with the control of specified pub'ic buildings in Albany, and that the words "Trustees of Public Buildings" do not include the commissioners of the sinking fund of the city of New York.

The

The provisions of section 217 of the charter are with respect to leases of real estate for the purposes of the city of New York or in the counties contained within its territorial limits. This section was taken from the Consolidation Act of 1882, chapter 410, passed many years prior to the enactment of the Rapid Transit Act, and in my opinion it is limited in its operation to the purposes mentioned. lease of offices for the Public Service Commission is not for the purposes of the city of New York or any of the counties contained within its territorial limits, but for the purposes of a State commission. It is significant also that the Board of Rapid Transit Railroad Commissioners did not submit leases to the commissioners of the sinking furd for approval, but made the same directly.

By section 149 of the charter, leases when approved by the Commissioners of the Sinking Fund are required to be entered into by the Comptroller on behalf of the city but there is a provision later on in this section to the effect that nothing therein contained shall affect the Board of Rapid Transit Railroad Commissioners. I am therefore of the opinion that the lease by the Public Service Commission for the First District of its permanent offices need not be submitted for approval to the Commissioners of the Sinking Fund.

Respecting the further question as to the designation of newspapers for Ranid Transit advertisements, the reading of the Rapid Transit Act seems plain. The Mayor designates the newspapers in which hearings on the form of contract are advertised, and the Public Service Commission, as the successor to the Board of Rapid Transit Railroad Commissioners, designates the newspapers in which the contracts are advertised for letting. (See sections 36 and 37 of the Rapid Transit Act.)

Very truly yours.

(Signed) ABEL F. BLACKMAR.

Counsel to the Commission.

Steinway Tunnel - Position of Commission Concerning

Operation.

OPINION OF COUNSEL.

November 9, 1907.

TRAVIS H. WHITNEY, Esq., Sceretary, Public Service Commission for the First District:

DEAR SIR.I duly received your letter of September 17 requesting me to give you my opinion as to whether the commencement of operation of the Steinway turnel will in any way prejudice any rights that the Commission may have in any legal proceedings undertaken looking to the prevention of operation and ownership of this tunnel by the alleged company now in charge of the work.

The courts have held that an injunction is not necessarily to be granted in every case, and that acquiescence or laches of a complainant is to be regarded on any application for such relief in equity; and although this principle does not apply in a case where a public body is complainant with the same force as where a private individual is, yet it deserves consideration.

I therefore think that the Commission should not acquiesce in any operation of the Steinway tunnel; but upon being piaced in possession of evidence that operation is about to begin, the Commission should consider carefully whether an application to the courts to enjoin the operation should not be made. Yours very truly,

(Signed) ABEL E. BLACKMAR,

Counsel to the Commission.

Steinway Tunnel - Resume of Rights of Company and Pending Litigation Affecting.

OPINION OF COUNSEL.

November 21, 1997.

Hon. MILO R. MALTBIE, Commissioner, Public Service Commission for the First District:

DEAR MR. MALTRIE. I have your letter of the 13th inst., asking for a brief summary of the situation in regard to the Steinway tunnel, and particularly as te (1) "What_litigation is now pending in the courts?"

and

(2) "What court decisions have been rendered upon the question of the right of the company to construct and to operate the road?”

In reply I have to state as follows:

The New York and Long Island Railroad Company was incorporated July 30, 1887. under chapter 140 of the Laws of 1850, known as the General Railroad Act, for the purpose of constructing and operating a railroad five miles long, more or less, from a point in Long Island City, one mile from the East river, thence partly underground and partly in cutting to the river, thence under the river, and thence by tunnel under certain streets in New York city.

Its corporate existence was to be ninety-nine years.

Its capital stock was to be $100.000, consisting of 1.000 shares of $100 each. The General Railroad Act of 1850, under which the company was incorporated, was amended by chapter 775 of the Laws of 1867, which provided, among other things, that if any corporation formed under the Act of 1850,

"shall not, within five years after its articles of association are filed and recorded in the office of the Secretary of State, begin the construction of its road, and expend therein ten per cent. on the amount of its capital, or shall not finish its road and put it in operation in ten years from the time of filing its articles of association, as aforesaid, its corporate existence and power shall cease."

The route of the road and tunnel, as constructed, is approximately as follows: From Park avenue and Forty second street, Manhattan, under Forty-second street; thence under the East river to approximately the west end of Fifth street. Long Island City; and thence under private property to Fourth street and under Fourth, street to a point between Jackson avenue and Van Alst avenue, Long Island City. The route thus consists of three main sections, namely: (1) Park avenue to the East river.

(2) Under the East river.

(3) From the river to the Long Island terminus.

The company bases its right to construct and operate its road over this route in the main on three consents, as follows: (1) Resolution of the Board of Aldermen of the old city of New York, approved December 31. 1890.

(2) Patent issued by the State of New York January 5. 1891.

(3) Resolution of the Board of Aldermen of Long Island City, approved October 27, 1891.

By the first resolution, above mentioned, the city assented "to the construction of a double track railroad by the New York and Long Island Railroad Company, in, by and through a tunnel beneath the surface of 42nd street, from its easterly end, to a point therein between 10th and 11th Avenues, in said City, with such connections, branches, turn-outs, sidings and switches, as may be requisite and necessary, in accordance with the plans and profiles of such railroad heretofore deposited with this Board, or such modification thereof as shall be approved by the Commissioner of Public Works of such City."

The consent of the State of New York, above mentioned, was granted by the following patent:

"The People of the State of New York, by the Grace of God, Free and Independent: To all to whom these Presents shall come, Greeting:

"Know Ye, That pursuant to Chapter 140, Laws of 1850, as amended by Chapter 601, Laws of 1886, and a resolution of the Commissioners of the Land Office, adopted November 25, 1890, we have given and granted, and by these presents do give and grant unto the New York and Long Island Railroad Company, its successors and assigns, a right of way 99 feet in width and 50 feet in height within which to construct a tunnel for the use and operation of the above named grantees railroad, beneath the waters of the East River upon and along the route of said railroad between the City of New York and Hunter's Point in Long Island City, as shown in plan and profile, upon the charts filed in the office of our Secretary of State with the water grant papers of the month of January, 1891. Together with all and singular the rights, hereditaments and appurtenances to the same belonging or in any wise appertaining To have and to hold the above described premises unto the said the New York and Long Island Railroad Company, its successor and assigns forever.

IN TESTIMONY WHEREOF, we have caused these our letters to be made patent, and the Great Seal of our said State to be hereunto affixed

By the second resolution, above mentioned, Long Island City assented to the construction of a double track railroad

"Beginning at a point under the ground at or near the westerly end of 5th Street and in the middle line thereof at low water mark, on the east side of the East River, in said City; thence running easterly beneath streets and private property to a point at or near the intersection of 4th Street and West Avenue; thence along 4th Street to or near Van Alst Avenue, with a station hereafter to be located between the easterly shore of the East River and Van Alst Avenue; thence northeasterly by a curved line to Meadow Street *

་་

For compensation to the city the New York city ordinance provided that the company should

pay annually to the City of New York three per centum of its gross earnings or receipts from transportation of persons and property on its railroad within said city; such payment to be exclusive of all taxes fevied by and payable to the City of New York on the real or personal property, capital stock or income of said company, and the books of said company showing the amount of its said gross earnings or receipts shall at all reasonable times and hours be open to the inspection of the Comptroller of the City of New York (or to his duly authorized agents) for the purpose of verifying the returns thereof of said company."

The company's contractor started work in May, 1892, and up to July 30, 1892. there was claimed to have been expended the sum of $11,718.33, or more than 10 per cent of the capital stock of the company Work continued down to December, 1892, when an explosion occurred. whereupon the work ceased for nearly thirteen years, that is, until 1905, when work was again started. In thus resuming operations, the company relied upon chapter 775 of the Laws of 1867, and various subsequent acts, the last of which was chapter 597 of the Laws of 1903, as extending until January 1, 1907, the time within which to complete the road.

In August. 1905, the company obtained from the fire commissoner of the city of New York licenses to use and keep explosives at four shafts where it was prosecuting its work. and in October and November of the same year it obtained permits from the building department to erect certain temporary structures. On January 22, 1906, the inspector of combustibles of the fire department of the city of New York informed the Degnon Contracting Company, which company was doing the work, that four permits for blasting had been revoked by "direction of the Corporation Counsel." Two days later, on January 24, 1906, the superintendent of buildings for the borough of Manhattan informed the contracting company that certain building permits were revoked for the reason that the right to build this tunnel is disputed."

Thereupon, by summons and complaint dated February 8, 1906, the railroad company began action against the fire commissioner of the city of New York, the inspector of combustibles of the fire department. the superintendent of buildings of the borough of Manhattan, and the city of New York, to stay the revocation of these permits. The answers of all defendants were served February 9, and issue was joined by the service of an amended answer on April 17, 1906. A preliminary injunction was thereupon granted.

As to the matters at issue in this case, the company, presumably because it felt that its right to construct the tunnel was challenged, considered it necessary or at least advisable to allege and establish its two-fold right to carry on its work and to obtain an injunction restraining interference on the part of the city authorities. Accordingly, it alleged its due incorporation and its compliance with the legal requirements necessary to entitle it to construct, maintain and operate its proposed railroad.

By their amended answer the defendants put in issue, or attempted so to do, al of the material allegations of the complaint.

The position of the company, as stated subsequently by its counsel, was 38 follows:

By the arbitrary act of the officials above referred to, in secking to revoke permits which they had theretofore duly issued, after careful deliberation the plaintiff (that is, the railroad company) was placed in the position where it was compelled, in order that it might continue the prosecution of the work of constructing its railroad, to appeal to the Court for an injunction restraining the arbitrary and unwarranted intervention by those officials. The defendants (that is, the city authorities) thereby threw upon the plaintiff the burden of establishing its right to construct its railroad.'"

When the matter came before Mr. Justice Blanchard of the Supreme Court, on a motion to continue pendente lite the preliminary injunction, the justice, in his opinion printed in the Law Journal of March 7, 1906, went into the rights of the company and the city at some length. He was inclined to sustain the contention of the company to the effect that it was duly incorporated, and that the acts under which it based its right to prosecute its work were constitutional and valid. He said:

"Independent of the foregoing consideration, however, the validity of the plaintiff's franchise, in which a large amount of capital is invested and great public interests are concerned, cannot properly be determined upon affidavits. To resolve this question now against the plaintiff would permit such interference with the plaintiff's work as would prevent its completion within the time set therefor, upon which its franchise is conditional. The plaintiff will be irremediably damaged if the doubt were now resolved against. The defendant, on the other hand, cannot be prejudiced by the postponement. For this reason

the Court may well refuse to determine the question upon the present motion, and, instead may properly make a restraining order permitting the continuance of the work under the alleged franchise until the question may be tried in Court according to the rules of evidence. Upon this ground, as well as upon the merits, the plaintiff's move for a continuation pendente life of the preliminary injunction is granted."

The case came on for trial before Mr. Justice Fitzgerald in June, 1906. In his conclusions of law, Mr. Justice Fitzgerald found that

(1) The plaintiff had acquired at the time of the beginning of this action, and now has, due legal power and lawful authority to construct and operate its tunnel and railroad."

(2) There was no warrant or authority in law for the attempted revocation of any of said licenses and permits, either for the use of explosives or for temporary buildings; and said licenses and permits were and are of full force and effect."

(3) The time of the plaintiff to complete the construction of its tunnel will expire on the 31st day of December, 1906.” (4) The plaintiff is entitled to judgment restraining the defendants, the City of New York from in any respect molesting or interfering with the plaintiff or the Degnon Contracting Company, in the construction of the plaintiff's tunnel and railroad."

*

In his opinion, printed in the Law Journal on November 14, 1906, Mr. Justice Fitzgerald said:

"The validity of plaintiff's incorporation under the provisions of the General Railroad Act of 1850, as affected by various subsequent statutes, particularly the prohibition of Chapter 10, Laws of 1860, applicable only to the City of New York, the constitutionality of the Tunnel Act, Chapter 582, Laws of 1880. the alleged failure of the defendant in any event to comply with its provisions, the legality of the consents of the local authorities and of the abutting owners, the lapsing by expiration of time of the defendant's franchise and its failure to comply with statutory requirements in the matter of the change of route, were all sharply presented and definitely determined"

when the matter was before Mr. Justice Blanchard.

Inasmuch as no attempt had been made to distinguish the facts presented before Mr. Justice Fitzgerald from those presented on the motion, Mr. Justice Fitzgerald stated that he considered the doctrine of stare decisis was applicable to the matter as it came before him. Accordingly, he rendered his decision for the company and judgment was thereupon entered.

The appeal from this judgment was argued in the Appellate Division in October of the present year, and a decision should be expected shortly from the Appellate Division.

In addition to the first action a second action was brought by the city of New York in February of the present year. The substance of this second action is, that the corporate existence and powers of the railroad company ceased January 1, 1907, and that its work since that time has been carried on without legal authority. Accordingly, the city asked judgment permanently enjoining and restraining the construction and operation of the railroad, declaring the corporate existence and powers of the company to have ceased and also declaring the franchise granted by the city of New York and Long Island City to be forfeited and void. To this complaint the company demurred, and the demurrer was argued before Mr. Justice Davis of the Supreme Court, October S. 1907.

Trusting that the above may be of assistance in this matter, I am,
Yours very truly,

(Signed)

ABEL E. BLACKMAR.
Counsel to the Commission.