tend their said line from the easterly terminus of said line on Fort Schuyler road at the intersection of said road with Eastern boulevard, along said Eastern boulevard up to the point where said Town Dock road intersects said Eastern boulevard, and as far as the franchise rights of the said company extend on Eastern boulevard, and to build and equip such extension in a suitable and proper manner for the operation of said line and with such switches or turnouts as may be required to enable said company and its said receiver to give adequate service upon said Eastern boulevard and upon said Fort Schuyler road. 2. It is further ordered, That said Union Railway Company and said Frederick W. Whitridge, as receiver of said company, be and they hereby are directed and required to operate daily, including Sunday, over every point of said line on said Fort Schuyler road and every point of said line on Eastern boulevard when completed, either: (a) A suflicient number of cars in each direction past any point of observation to provide during every fifteen-minute period of the day and night between the hours of 6:30 A. M. and 1:45 A. M., at least a seat for every passenger; the number of cars passing any point in each direction to be, however, never less than eight (8) cars per hour between 6:30 A. M. and 9 A. M., and between 3:30 P. M. and 8 P. M., and never less than four (4) cars per hour in each direction between 9 A. M. and 3:30 P. M., and between 8 P. M. and 1:45 A. M.; or (b) A minimum of fifteen (15) period in which the provisions of subdivision (a) above are not complied with. cars in each direction in each thirty-minute 3. It is further ordered, That said Union Railway Company and said Frederick W. Whitridge, as receiver of said company, be and they hereby are directed and required to complete said extension of said line on said Eastern boulevard, and to begin the operation of cars thereon not later than the 15th day of June, 1908, and to institute said improvements, changes and additions to and in the operation of its cars on said Fort Schuyler road and Eastern boulevard not later than the 15th day of June, 1908. This order shall continue in force until such time as the Public Service Commission for the First District shall otherwise order. 4. This order shall be without prejudice to the right of the Commission to make such further or other order or orders regarding any such further extension or extensions of said line on said Town Dock road as may to the Commission seem just and reasonable. 5. It is further ordered, That the said Union Railway Company and said Frederick W. Whitridge, as receiver of said company, notify the Public Service Commission for the First District within five days after service of this order upon them whether the terms of this order are accepted and will be obeyed. Upon applications of the company the following extension orders were issued: EXTENSION ORDER No. 580. June 16, 1908. An order, No. 474, having been made herein on or about the 8th day of May, 1908, ordering and directing the Union Railway Company and Frederick W. Whitridge, its receiver, to extend their line from the easterly terminus of said line on Fort Schuyler road at the intersection of said road with Eastern boulevard up to the point where said Town Dock road intersects said Eastern boulevard and as far as the franchise rights of the said company extend on Eastern boulevard, and to complete said extension and begin the operation of cars thereon not later than the 15th day of June, 1908; and the said Union Railway Company and Frederick W. Whitridge, its receiver, having, on June 13, 1908, applied in writing for an extension of such time. Now, on motion made and duly seconded, it is Ordered. That the time within which the Union Railway Company and its receiver, Frederick W. Whitridge, shall complete the construction of the extension to its road herein mentioned be, and the same hereby is, extended to and including the 15th day of July, 1908. EXTENSION ORDER No. 631. July 10, 1908. An order, No. 474, having been made herein on or about the 8th day of May, 1908, ordering and directing the Union Railway Company and Frederick W. Whitridge, as receiver, to extend their line from the easterly terminus of said line on Fort Schuyler road at the intersection of said road with Eastern boulevard up to the point where said Town Dock road intersects said Eastern boulevard and as far as the franchise rights of the said company extend on Eastern boulevard, and to complete said extension and begin the operation of cars thereon not later than the 15th day of June, 1908; and the said Union Railway Company and Frederick W. Whitridge, its receiver, having on June 13, 1908, applied in writing for an extension of such time until July 15, 1908, and an Extension Order, No. 580, having been made thereon on or about the 16th day of June, 1908, and a report having been made by Harry P. Nichols, Engineer in Charge, of the Division of Franchises, to Nelson P. Lewis, Chief Engineer of the Board of Estimate and Apportionment, which questioned the right of said Union Railway Company, and its receiver, to construct said extension, and the matter hav ing been transmitted to the Corporation Counsel for his opinion as to whether the Public Service Commission of the First District had authority to issue the order in question, and several other questions in connection with the franchise rights of the said company in respect to the extension of the Fort Schuyler road line, Now, on motion made and duly seconded, it is Ordered, That the time within which the Union Railway Company and its receiver, Frederick W. Whitridge, shall complete the construction of the extension to its road herein mentioned be, and the same hereby is, extended unt thirty days after the Corporation Counsel renders an opinion in the matter. OPINION OF COUNSEL. HON. JOHN E. EUSTIS, Commissioner: August 12, 1908. SIR. I am in receipt of your letter of June 17th transmitting a copy of a report submitted by Harry P. Nichols, engineer in charge of the division of franchises for the Board of Estimate and Apportionment, to the Board of Estimate and Apportionment, relating to the franchises of the Union Railway on the Eastern boulevard from Fort Schuyler road to New Town Dock road, and raising several questions in regard to same. You state that as the matter has been sent to the Corporation counsel for an opinion, you would like an opinion from me in regard thereto. On the 8th day of May, 1908, the Commission issued find order No. 474 directing the Union Railway Company and F. W. Whitridge as receiver of said company to extend their line on Fort Schuyler road from the easterly terminus of the line at the intersection of this road with the Eastern boulevard, northerly along said Eastern boulevard up to the point where the Town Dock road intersects said Eastern boulevard and as far as the franchise rights of said company extend on Eastern boulevard. This order was made after a hearing upon complaint and answer. The complaint asked that the company be required to extend the line northerly from the intersection of Fort Schuyler road and Eastern boulevard along Eastern boulevard to Pelham Bay park. It was claimed by the company in the answer and upon the hearing that the company had a franchise over certain streets including Fort Schuyler road and a portion of Eastern boulevard and the "new road to Long Island Sound" by virtue of a grant of the town of Westchester to the Wakefield and Westchester Traction Company. It seems to be the fact that whatever rights the Union Railway Company has on Eastern boulevard it possesses as the successor of the Wakefield and Westchester Traction Company under the consent thus granted by the town of Westchester. The Wakefield and Westchester Traction Company was incorporated in 1892 by certificate of incorporation dated April 24, 1892, and filed in the office of the Secretary of State on April 28, 1892. In the certificate of incorporation the termini of the road are stated to be "(1) The intersection of Fifteenth avenue and Third street in the village of Williamsbridge; (2) the junction of Long Island Sound with the new road between the Eastern boulevard and said Long Island Sound." On June 7, 1892, the Town Board of the town of Westchester adopted a resolution granting to this company the right to build and operate a street surface railroad along certain streets, roads and highways, as follows: "Beginning at Fifteenth avenue and Third street in the village of Williamsbridge; thence along said Third street to White Plains road; thence along said White Plains road to Briggs avenue; thence along said Briggs avenue to the old Boston road; thence along said Boston road to the road leading from Williamsbridge to Westchester village; thence along said road to Main street in Westchester village; thence along said Main street to the road to Fort Schuyler; thence along said road to the Eastern boulevard; thence along said boulevard to the new road to Long Island Sound; and thence along said new road to Long Island Sound." This company was one of five different companies which were incorporated at the same time, to all of which companies franchises were granted by the Town Board of the town of Westchester on June 7, 1892. On May 12, 1904, these companies were consolidated into the Bronx Traction Company. The consolidation agreement recites that each of the constituent companies is the owner of one or more municipal consents and franchise rights to construct, maintain and operate a street surface railroad in and upon various streets in the borough of the Bronx in the city of New York, and the railroads of two or more of the said corporations have been actually constructed and are now in operation on part of the streets, avenues, and roads designated in the street franchises owned by said corporations respectively It does not appear * by what corporations the construction work had been done. The capital stock is fixed at $585,000, the exact equivalent of the total capital stock of the five corporations hereby consolidated at the par value thereof." The capital stock of the Wakefield Company was $125,000. On November 2, 1904, an operating agreement was entered into between the Bronx Traction Company and the Union Railway Company whereby the Union Railway Company has the use of the tracks of the Traction Company now constructed or to be constructed." But the Union Railway Company does not under this agreement agree to extend the tracks of the Bronx Traction Company or to perform any of its obligations so far as the extension of tracks is concerned. After the consolidation above mentioned construction under the franchises of the Bronx Traction Company was continued. The line along Fort Schuyler road was opened in 1904. Mr. Nichols states that the consent to the Wakefield and Westchester Traction Company was granted by the Town Board of Auditors of the town of Westchester, and the first question he raises is as to whether the consent thus granted vested in the Wakefield and Westchester Traction Company a valid franchise, the Town Board of the town being at that time the proper franchise granting authority. I think Mr. Nichols must be in error in stating that the consent was granted by the Town Board of Auditors, as the documents filed with the franchise department of the Commission show that the consent was granted by the Town Board. There can therefore be no doubt that the Wakefield Company had a valid franchise over the route described in the consent. The Bronx Traction Company succeeded to that franchise provided the franchise had not been forfeited prior to the consolidation. As to whether or not it had been forfeited a serious question is presented. Section 5 of the Railroad Law at the time of the incorporation of the Wakefield and Westchester Traction Company provided as follows: "If any domestic railroad corporation shall not, within five years after its certificate of incorporation is filed, begin the construction of its road and expend thereon ten percentum of the amount of its capital, or shall not finish its road and put it in operation in ten years from the time of filing such certificate, its corporate existence and powers shall cease." This section has been held to be applicable to street railroad corporations and to be self executing. The existence of the corporation is terminated by failure to comply with either of the prescribed conditions. Matter of Brooklyn, Winfield and Newtown Ry. Co., 72 N. Y. 245. I have been unable to ascertain just when the construction of this company's line was commenced. It is very doubtful whether it was commenced within the time prescribed by the statute or whether the required amount of capital was expended within that time. This company, though organized in 1892, never made any report to the State Board of Railroad Commissioners. The company was merged in the Bronx Traction Company in 1904. The first report showing any construction was made by the Bronx Traction Company in 1904. It would therefore appear extremely unlikely that the condition mentioned was complied with within the five years mentioned in the statute. The Franchise Department has made a study of the subject, but has been unable to reach any definite conclusion. Whatever the decision may be upon the point just mentioned, it is certain that the line was not completed within the ten years prescribed by the statute for the completion of the line, for more than sixteen years have elapsed since the filing of the certificates of incorporation and the line has been constructed no farther than the intersection of Fort Schuyler road and Eastern boulevard. It would appear, therefore, that the company's franchise has been forfeited unless the time for construction has been extended in some way. I know of no way whereby the time for the construction could have been extended except under an amendment to section 5 of the Railroad Law. In 1901 section 5 of the Railroad Law was amended by the addition of the following: "This section shall not apply to any street surface railroad company incorporated prior to July first, eighteen hundred and ninety-five, which has obtained or become the owner of the consents of the local authorities, of any city of the first or second class, given under article four of the railroad law to the use of the public streets, avenues, or highways for the construction and operation of the railroad thereon." I am of the opinion that this amendment could have no application to the Wakefield and Westchester Traction Company as the consents it had were those of the local authorities of a town and not those of the local authorities of a city of the first or second class. This amendment, therefore, cannot save the company's franchise from forfeiture. If, as seems to be the case, the franchise rights of the Wakefield and Westchester Traction Company have been forfeited, it would seem unnecessary to pass upon the remaining questions raised by Mr. Nichols. However, they will be noticed briefly. Mr. Nichols raises a question as to the location of the road designated in the consent of the town of Westchester as the new road to Long Island Sound." The order of the Commission assumes that the road intended is the Town Dock road which intersects Eastern boulevard at a point north of the intersection of Fort Schuyler road with Eastern boulevard. Mr. Nichols is of the opinion, however, that the road referred to is Ferris avenue or Ferry Point road, which lies to the south of the intersection of Fort Schuyler road and Eastern boulevard. If this interpretation is correct, the Wakefield and Westchester Traction Company never had any franchise rights on Eastern boulevard north of the intersection of Fort Schuyler road therewith. The language used is very ambiguous. It was claimed by the Union Railway Company in its answer and upon the hearing that it had no franchise rights on Eastern boulevard north of the intersection of Fort Schuyler road and Eastern boulevard and that by "the new road to Long Island Sound was meant Ferris avenue or Ferry Point road. However, upon the hearing, Mr. Edward A. Maher, until recently President of the Union Railway Company, admitted that the road intended was the New Dock road (or Town Dock road) above mentioned. It having been thus admitted that the company had franchise rights over a portion of Eastern boulevard north of the intersection of Fort Schuyler road and Eastern boulevard, the Commission accepted the company's statement and issued its order accordingly. It is impossible to determine from the maps and documents filed with the Commission which interpretation is correct. A map filed by the Union Railway Company with the Franchise Department of the Commission shows the route as extending through Ferris avenue. I am of the opinion, however, that the road referred to is the Town Dock road. The consent of the town of Westchester describes the line as extending "to Long Island Sound ;" and the certificate of incorporation of the Wakefield and Westchester Traction Company describes the terminus of the line as the "junction of Long Island Sound with the new road between the Eastern boulevard and said Long Island Sound." Several maps prepared at different times by the authorities of the borough of the Bronx are on file with the Franchise Department of the Commission. On all these maps the Town Dock road is shown as extending to the Sound, whereas Ferris avenue or Ferry Point road is shown as extending only part way to the Sound. There could therefore be no junction" between this road and the Sound. However, it is a matter of what was intended at the time, and in the absence of any knowledge as to what the intent was, no definite determination can be reached. Mr. Nichols inquires whether the company's interpretation of the franchise in regard to the streets or roads on which it was granted evidenced by the maps furnished by the Union Railway Company, precludes it from claiming the right to construct in a different direction on the same street, when the description of the route contained in the consent may be considered ambiguous. I am of the opinion that any ambiguity may be cleared up and the actual intent may be ascertained. The company's interpretation may be taken for what it is worth, but is not conclusive. Resort may be had to extrinsic circumstances. Smith v. Helmer, 7 Barb. 415. Union Pac. R. R. Co. v. Hall et al., 91 U. S., 343, 351. Mr. Nichols seems to be of the opinion that the order of the Public Service Commission should have been directed to the Bronx Traction Company instead of the Union Railway Company. In this I think he is right. As has been noted, the Union Railway Company has the use of the tracks of the Bronx Traction Company under an agreement with that company, but there is nothing in that agreement whereby the Union Railway Company undertakes to extend the tracks of the Bronx Traction Company or to perform any of its obligations so far as the extension of tracks is concerned. If there is any agreement between these companies whereby the Union Railway Company obligates itself to extend the tracks of the Bronx Traction Company, it has not been filed with the Commission. Mr. Nichols seems to be in doubt whether the Commission has power to make an order requiring a company to utilize its entire franchise where it is using only a part thereof. The decisions of the courts upon this point leave little room for doubt. It is held that a railroad company need not accept a franchise unless it chooses to do so, but that if it accepts the franchise it must take it as offered, and the company has no right to accept in part and reject in part. The company owes a duty to the public to exercise the entire franchise granted to it. The franchise can only be legally exercised by the company operating its entire road. There is no privilege granted or right obtained to operate a part thereof; and if it undertakes to do so it is exercising a franchise or privilege without legal sanction. The People vs. The Albany and Vermont Railroad Company, 24 N. Y. 261. Paige vs. Schenectady Ry. Co., 178 N Y. 102, 114. Collins vs. Amsterdam St. R. R. Co., 76 App. Div. 249. And it seems that mandamus will lie to compel a railroad company which is exercising a part of its franchise to exercise its entire franchise. The People vs. The Albany and Vermont Railroad Company, 24 N. Y. 261. The failure of the company to exercise its entire franchise being thus a violation of law and of the terms and conditions of its franchise, the Commission has power under section 48 of the Public Service Commissions Law to make an order requiring the company to exercise its entire franchise, and may enforce its order by mandamus. Public Service Commissions Law, § 48. My conclusions therefore are: 1. The consent of the town of Westchester to the Wakefield and Westchester Traction Company in 1892 vested in that company a valid franchise over the route described in the consent. 2. Upon the consolidation of this company and other companies into the Bronx Traction Company in 1904, the Bronx Traction Company succeeded to the rights of the Wakefield and Westchester Traction Company provided those rights had not been forfeited under section 5 of the Railroad Law. Apparently, however, these rights had been forfeited. 3. If these rights have not been forfeited, the Commission has power to make an order requiring the Bronx Traction Company to extend its line over the entire route described in the consent above mentioned, or requiring the Union Railway Company to extend the line if that company has become obligated in any way to extend the same. 4. The order of the Commission in this case was directed to the Union Railway Company which operates its cars over the tracks of the Bronx Traction Company under an agreement for the use of the tracks. As the Union Railway Company does not under the terms of this agreement undertake to extend the tracks of the Bronx Traction Company, apparently the order should have been directed to the Bronx Traction Company. 5. The language used in the consent of the town of Westchester in describing the streets through which the road should extend after leaving the junction of Fort Schuyler road and Eastern boulevard is so ambiguous that it is impossible to determine the direction intended. I would recommend that an investigation be had in order to determine 1. Whether the rights granted by the town of Westchester to the Wakefield and Westchester Traction Company have been forfeited. 2. If such rights have not been forfeited, then to determine over what streets such rights extend. 3. Whether there is any agreement between the Bronx Traction Company and the Union Railway Company whereby the latter is obligated to extend the lines of the Bronx Traction Company. 4. Whether any of the franchises of the Bronx Traction Company are still valid and subsisting. A general investigation of the franchises of this Company would enable the Commission to get at the facts and determine what course to pursue. stand orders of the Commission affecting the lines of this company are likely to be rendered nugatory by the action of the city in claiming that there is no franchise As matters now and refusing to permit the company to execute these orders. Respectfully yours. GEO. S. COLEMAN, Counsel to the Commission. Upon application of the company the following rehearing order was issued: REHEARING ORDER No. 789. October 16, 1908. An order, No. 474, having been made and filed herein on May 8, 1908, under and pursuant to an Order for Hearing No. 368, made March 27, 1908, directing the said Union Railway Company and Frederick W. Whitridge, its receiver, to extend their line on Fort Schuyler road from the easterly terminus at the intersection of said road with the Eastern boulevard along said Eastern boulevard up to the point where Town Dock road intersects said Eastern boulevard and as far as the franchise rights of the said company extend on said Eastern boulevard, and said Order No. 474 having been duly served upon the Union Railway Company and Frederick W. Whitridge, its receiver, and said company having accepted said Order No. 474 on May 12, 1908, and said company having subsequently, on October 14. 1908, applied in writing to this Commission for a hearing in respect to the matter contained in paragraph (1) of said Order No. 474, and sufficient reason for said rehearing having been made to appear: re Ordered. That said request for a rehearing be granted, and that the said rehearing upon the matters contained in paragraph (1) of said Order No. 474, entered and filed on May 8, 1908, be held on the 5th day of November, 1908, at 2:30 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, borough of Manhattan, city and State of New York, to determine after such rehearing and after consideration of the facts, including those arising after the making of Order No. 474, if any part thereof is unjust, unwise, and whether the said Order No. 474 should be abrogated, changed or modified. And if any such abrogation, changes or modifications are found to be such as ought to be made, then to determine the nature and extent of changes or modifications of the said order, and to determine the time of taking effect of the order as changed or modified. All to the end that the Commission may make such order or orders in the premises as shall be just and reasonable. Further ordered, That the said complainants and the said Union Railway Company and Frederick W. Whitridge, its receiver, be given at least ten (10) days' notice of such rehearing, by service upon them, either personally or by mail, of a certified copy of this order, and that at such rehearing said company shall be afforded all reasonable opportunity for presenting evidence and examining and cross-examining witnesses as to the matters aforesaid, Further ordered, That the time of the said Union Railway Company and Frederick W. Whitridge, its receiver, within which to comply with the terms of paragraph (1) of said Order No. 474 be, and the same hereby is, extended until such time as the Commission shall enter an order upon the rehearing herein provided for. Hearing held November 5th. |