Pennsylvania Tunnel - Jurisdiction of Commission. OPINION OF COUNSEL. Public Service Commission for the First District: December 16, 1907. DEAR SIRS. I return herewith letter of Mr. Walter B. James of the 6th inst., complaining of the condition of East Thirty-third street, in the borough of Manhattan, between First avenue and the East river, and of the condition of Seventh and Eighth avenues between Thirty-second and Thirty-third streets, at both of which points the Pennsylvania, New York and Long Island Railroad Company is engaged in constructing a subway, which letter was referred to me for an opinion whether the Commission had jurisdiction to act upon this complaint. The so-called Pennsylvania tunnel is being constructed under a certificate granted by the former Rapid Transit Board to the Pennsylvania, New York and Long Island Railroad Company dated October 9, 1902, which contained the following provisions germane to this complaint: Paragraph VI, page 18.-"The tunnel company shall at all times keep paved with smooth pavement in such manner as may be reasonably required by the municipal authorities having care of the streets, and shall at all times keep in thoroughly good condition the portions of 31st and 33rd Streets between 7th and 8th Avenues and between 8th and 9th Avenues.' Paragraph VI, page 19.-"All plans for, and the method of doing, the work shall from time to time be subject to the approval of the Board.” Paragraph XIII, page 20.-The City, the Board, and all duly authorized representatives of the City, shall have the right at all reasonable times to inspect the railroad and any part thereof, and to enter thereon when necessary for the examination, supervision or care of any property of the City or for any proper purpose.' From these franchise provisions it seems to me to be plain that the construction of this tunnel is at all times subject to the jurisdiction of the Commission as the successor of the Rapid Transit Board, and that the Commission has complete power to order the railroad company or its contractors to live up to their franchise covenants. In this connection, I think it well to call the attention of the Commission to the fact that for certain portions of the work, the Rapid Transit Board on February 14th last granted to the railroad company the right to make excavations from the surface on certain portions of the line. These permits were four in number and allowed excavation from the surface at the following places: From a point on West Thirty-third street 460 feet west of Sixth avenue, for not more than 500 feet running east ; From a point on West Thirty-third street 20 feet west of Fifth avenue, for not more than 600 feet running west; From a point on West Thirty-second street 200 feet west of Madison avenue, for not more than 650 feet running west; And from a point on West Thirty-third street 600 feet west of Sixth avenue, for not more than 750 feet running east. These permits expressly provide that temporary street surfaces shall be maintained and that upon the completion of the work they shall be replaced with asphalt subject to the specifications of the bureau of highways. At the time of granting these permits, the following resolution was adopted: (Rapid Transit Minutes, page 4686.) "Resolved, That this Beard hereby directs its Chief Engineer to maintain a constant supervision of the method and progress of the work of construction, etc., under the permits this day authorized to be granted to the Pennsylvania, New York and Long Island Railroad Company." Although repaving is required by the provision above quoted to be done in such manner as may be reasonably required by the municipal authorities, I do not think that this ousts the Commission of its right of regulation, but that the Rapid Transit Board, by the terms of the franchise, gave concurrent rights of regulation in some respects to the other city authorities. Section 32 of the Rapid Transit Act, under which the Rapid Transit Board acted in granting this certificate, provides that the Board shall fix and determine the locations and plans of construction of the railroad and to include in the contract such terms, conditions and requirements as to the Board may appear just and proper. The act further provides that such grant shall be deemed a contract between the city and the railroad company. As the railroad company has, therefore, agreed with the city through the Rapid Transit Board in the particulars above specified, this Commission has, in my opinion, the right to compel the railroad company to live up to such agreements. Yours very truly. Jurisdiction of the Commission over Subway of Hudson and Manhattan Railroad Company - Noise at Night in Work Public Service Commissions Law, Sec of Construction tion 48. OPINION OF COUNSEL. September 19, 1907. TRAVIS H. WHITNEY, Esq., Secretary, Public Service Commission, for the First District: DEAR SIR. Referring to the letter of S. Marks, dated September 6, 1907, which I return herewith, complaining of the noisy night construction work on that portion of the tunnel now being built by the Hudson and Manhattan Railroad Company, which is under Mr. Marks' premises, No. 419 Sixth avenue, in the borough of Manhattan, transmitted to me with the letter of the Secretary to the Commission of the 10th inst., asking my opinion as to the extent of the Commission's jurisdiction over such tunnel, I desire to advise you that, in my opinion, such tunnel and the method of doing the work therein is within the jurisdiction of the Commission. With reference to section 48 of the Public Service Commissions Law, which, I think, is of itself sufficient to vest the Commission with jurisdiction, the contract between the tunnel company and the city as embodied in the certificate of the Board of Rapid Transit Railroad Commissioners to the tunnel company of February 2, 1905, provides, paragraph V: "All plans for, and the method of doing, the work, including all plans for stations and station arrangements, shall, from time to time be subject to the approved by the Board." And further, paragraph XIII: The City, the Board and all duly authorized representatives of the City, shall have the right at all reasonable times to inspect the railroad and any part thereof, as well during construction as afterwards, and to enter thereon when necessary for the examination, supervision or care of any property of the City or of abutting property owners, or for any proper purpose. Nothing in this franchise shall be deemed to diminish or affect the sanitary or police jurisdiction which the public authorities shall lawfully have over property in the City." It would also appear that by the terms of the contract under which the construction work is being done by and on behalf of the Hudson and Manhattan Railroad Company, of which contract form a copy is on file with the Commission, that the contract is subject to the provisions of the franchise and of the certificate of the Board of Rapid Transit Railroad Commissioners granting the same, and that the provisions thereof are superior to and supersede any conflicting provisions of the contract, and that the contractor shall in the execution of the works, and notwithstanding anything in the contract contained in all respects conform to the requirements of the franchise and certificate. The contract also provides that the methods of doing the work under the contract shall be subject to the approval of the Board that the contractor shall in all matters relating to the works conform to all valid regulations and requirements of law or of any State, municipal or other governmental or public authority; that the blasting shall be carried out with great care, so as not to disturb any adjacent properties or improvements, either public or private, and that the contractor shall indemnify and save harmless the Hudson and Manhattan Railroad Company against and from all loss and damage arising from the failure of the contractor or of those acting under him to conform to the requirements of the said franchise, and the provisions of the certificate granting such franchise, or to conform to the valid regulations and requirements of law or of any State, municipal or other governmental or public authority. The Commission in the light of the above provisions can either itself investigate the complaint or call the matter to the attention of the tunnel company in accordance with the provisions of section 48 of the Public Service Commissions Act. Yours very truly, (Signed) A. E. BLACKMAR, Counsel to the Commission. ORDERS OF THE COMMISSION ISSUED IN 1908. Pursuant to the provisions of the Public Service Commissions Law, copies of each order issued during the year 1908 are here published, except that as blank forms were used in issuing certain complaint, extension and hearing orders, it has been deemed unnecessary to repeat in publishing such orders that part which is uniformly the same in each respectively. Note. 1.-COMPLAINT ORDERS. Such orders were issued in substantially the following form: Tribune Building, 154 Nassau Street, This matter coming on upon the complaint of by which it appears that said complainant is aggrieved by acts done or omitted to be done by ..... said defendant, and set forth in said complaint, which are claimed to be in violation of some provision of law, or of the terms and conditions of defendant's franchise, or of an order of this Commission, Now, upon the said complaint, it is Ordered: That a copy of the said minutes be forwarded to the said defendant and that the matters therein complained of be satisfied or the charges in said complaint set forth be answered by said defendant within ten days after service upon it of this order, exclusive of the day of service. [109] Note 2.- EXTENSION ORDERS. Orders extending the time within which to answer complaints were issued in substantially the following form: to answer the complaint herein within a time therein specified, and the said .. Company, having on an extension of such time, Now, on motion, it is 19., applied in writing for Company within which to Ordered: That the time of the answer said complaint be and the same hereby is extended to and including the . . . . . day of 19... Note 3.— HEARING ORDERS. Such orders upon complaints and answers were issued in substantially the following form: Tribune Building, 154 Nassau Street, 19.., at ...... on which order thereto, dated day Ordered, That upon the matters therein a hearing be had on the of ...... o'clock in the afternoon, or at any time or times to which the same may be adjourned, at the rooms of the Commission at 154 Nassau Street, Borough of Manhattan, City and State of New York, to the end that the Commission may make such order or orders in the premises as shall be just and proper, at least ... days' notice of such hearing by service upon them, either personally or by mail, of a certified copy of this order, and that at such hearing they may be afforded all reasonable opportunity for presenting evidence and examining and cross-examining witnesses as to the matters aforesaid. ORDERS FOLLOWING APPLICATIONS FOR PERMIS- Brooklyn Union Elevated Railroad Company - Nassau Electric Railroad Company.- Application of Brooklyn Union Elevated Railroad Company for authority to issue a mortgage of $20,000,000, and of Nassau Electric Railroad Company to issue a mortgage of $5,000,000. Opinion of Commissioner McCarroll. Final Order No. 642. Application was made by the Nassau Electric Railroad Company for consent to the issuance of a mortgage to secure $5,000,000 of demand certificates and by the Brooklyn Union Elevated Railroad Company for consent to the issuance of a mortgage to secure $20,000,000 of demand certificates. The applications were made to the former Board of Railroad Commissioners but were not acted upon by that board and proceedings were continued before the Public Service Commission. The Brooklyn Rapid Transit Company has stock control of all the street surface and elevated railroad companies in Brooklyn except the Coney Island and Brooklyn Railroad Company and the Van Brunt Street and Erie Basin Railroad Company. It helds in excess of 95 per cent of the stock of each of these different companies and also holds some of their bonds. The management of the property of all these companies is actually conducted by the Brooklyn Rapid Transit Company. In 1902 the stockholders of the Brooklyn Rapid Transit Company authorized a mortgage upon the property of their company, consisting of the stocks and bonds of the companies mentioned, to secure bonds at a total amount not exceeding $150,000,000, bearing interest at a rate not higher than 4 per cent, payable July 1, 2002, and subject to redemption before July 1, 2000, upon payment of a premium of 10 per cent and after that date at par. The mortgage provides that a sufficient amount be reserved to refund bonds secured by the $7,000,000 mortgage of the Brooklyn Rapid Transit Company already existing and also of the various companies whose stock is held as these bonds become due or sooner if the exchange can be made with advantage to the company. Under this provision $61,065,000 of bozds have been reserved. Under this mortgage there had been issued up to June 30, 1307, $32,702,000, of which $27,702,000 had been issued upon the deposit of securities purchased and certificates of indebtedness of subsidiary companies. The bonds sold did not realize par, the discount upon the issues made amounting to $4,854,955. |