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distribution of electricity. The reason why I have omitted these subjects of inquiry is, that I have serious doubts as to whether the law justifies an inquiry into these subjects upon an investigation made on the motion of the Commission.

The Commission has no power under the act, as I believe, to make an order fixing the maximum price of electricity after a hearing made upon its own motion, but can proceed only upon a complaint filed as provided in section 71. As these elements of inquiry which are omitted are pertinent only to the question of fixing the proper price, an inquiry into them cannot be made on the motion of the Commission, unless other provisions of the act expressly authorize it.

A careful analysis of the law shows that an inquiry into these subjects is not expressly authorized except on a hearing made upon a complaint. The provisions of section 71, regarding the method of bringing about an inquiry into the price upon a complaint made by third parties is a strong impression of legislative intent that such inquiry shall not proceed upon the motion of the Commisssion.

This Commission has no general powers of investigation and cannot exercise such powers except in furtherance of the purposes of the act or as expressly permitted; and as I have reached the conclusion that the act contains no general provisions authorizing an investigation into these subjects and that these subjects are pertinent only to an investigation for the purpose of fixing the price, which can only be had upon complaint, I am of the opinion that we cannot properly include those subjects in the resolution which I present.

With respect to the general powers of investigation, the article of the law which is applicable to gas and electric corporations differs widely from the articles applicable to railroads, common carriers and street railroads. Articles 2 and 3, referring to these latter agencies, contain an express authorization of a general investigation into the general condition and capitalization of the companies (see section 45); but such general authorization is not found in the article relating to gas and electric corporations.

Subdivisions 2 and 5 of section 66 seems to me to authorize such an investigation as this resolution provides for, but I cannot find any warrant in the act for extending it to the subjects which I have omitted.

Yours respectfully. (Signed)

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ABEL E. BLACKMAR,

Counsel to the Commission.

Sale of, in Cases in which Manufacturer Does
Not Use Public Property.

OPINION OF COUNSEL.

November 15, 1907. Hon. MILO R. MALTBIE, Commissioner, Public Service Commission, First District: DEAR SIR. I am in receipt of your letter of November 13th. asking whether a person owning an electric light plant and supplying current for his own house. may supply current to another person, in the same block, without using the street and without extending wires or allowing mains upon the property of the third party; also whether the rule is different in the case where the wire is run over a third party's premises, but with his consent.

It has been held in the case of Fanning v Osborne. 102 N. Y. 441, that the right to construct and operate a street railway is a franchise which must have its source in the sovereign power and that the construction and maintenance of a street railway by any individual or association of individuals, without legislative authority, would constitute a public nuisance.

I think the same rule would apply to the construction and operation and transmission of electricity where the use of a public street was necessary in the conducting of the enterprise in the State of New York. In a case, however, where no use of the public street or public property is necessary, and the consent of a third party for the use of his property is obtained, as in the case you mention, I think there is no franchise exercised and that no legislative authority is necessary.

I find in a recent text-book, known as Joyce on Electric Law, section 184-a, a statement, based upon a Maryland case not long since decided, that the right to produce and sell electricity as a commercial product without legislative authority or franchise, is a business which is not a prerogative of government, but is opened to all who may desire to engage therein, like the manufacture and sale of any other commercial product, but the use of city streets for the purpose of delivering electricity to the consumer is a franchise which must be derived directly or indirectly from the State.

I am of the opinion, therefore, that one who owns an electric plant may supply current to another person in the same block, without using the street and may extend his wires upon the property of the third party, with his consent, for the purpose of supplying electricity, and may supply the same in that manner without legislative authority or procuring a franchise so to do.

Very truly yours,

(Signed) ABEL E. BLACKMAR.
Counsel to the Commission.

Express Companies - Discrimination and Preference - $50 Clause in Contract as Affecting Adjustment of LiabilityPublic Service Commissions Law, Sections 31, 32, 35.

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OPINION OF COUNSEL

November 22, 1907. TRAVIS H. WHITNEY, Esq., Secretary, Public Service Commission, First District: DEAR SIR.I have your letter of the 6th inst., transmitting the file of correspondence relative to the claim of Spear & Company against the Adams Express Company.

In the letter of Spear & Company to you of the 12th of September last, they

say:

"We made a shipment by Adams Express on Nov. 16, 1906, to E. P. Leeven & Co., 475 Broadway, New York City.

"The goods were never delivered by Adams Express Co., and they offered to settle for the lost merchandise for $50.00.

"They claim that your commission will not allow them to pay more than $50.00 for any claim.

"Kindly advise us whether they are correct in this assertion, and oblige."

I confine myself to the inquiry contained in this letter, for, although in some of the later letters the complainant seems to have the impression that the Commission is about to enforce the payment of its claim, that is not within the duties of the Commission, and Spear & Company must take such action in the courts as they are advised by their counsel.

The correspondence file does not contain the express receipt referred to in the letters, but I assume it to have been in the usual form and to have limited liability thereunder to $50, and I also assume, for the purposes of this case, that such a limitation is not affected by the provisions of the Public Service Commissions Law. The Public Service Commissions Law, by sections 31, 32 and 35, prohibits discrimination. Section 32 is especially broad, providing:

"Section 32. Unreasonable preference. No common carrier shall make or give any undue or unreasonable preference or advantage to any person or corporation or to any locality or to any particular description of traffic in any respect whatsoever, or subject any particular person or corporation or locality or any particular description of traffic to any prejudice or disadvantage in any respect whatsoever."

See page 230

And I can understand how the general counsel to the express company, looking at it from the company's standpoint, might say that in settling claims in excess of its strict contractual liability it would run some risk of being called to account by one of the Commissions. Going back, however, to the primary purpose of the act, we find that the two underlying evils of discrimination it was intended to prevent was inequality in rates and inequality in service. This case has proceeded beyond that point; there is no objection to the rate charged, and the service is under attack only in that the property entrusted to the express company has been lost. The claim is made for a money equivalent of the goods lost. The only difficulty in answering an inquiry like the present one is that the recognition of excessive or baseless claims might furnish a ready method by which the common carriers, if they so desire, could evade the prohibition of discrimination in rates, that is, a carrier could allow a rebate under the guise of an allowance for property lost or damaged.

But in spite of this difficulty I do not think that there is any authorization for the Commission to interfere with a just and bona fide attempt to adjust liability.

Whether the claimants could recover in an action at law more than the $50 offered in settlement I do not attempt to determine, but I think that even if they could not. the excess payment is a matter between the express company and its stockholders and is not subject to regulation by the Commission any more than would be the extent of its employees' compensation or the adjustment of any other kind of liability.

I should, therefore, suggest that you advise Spear & Company that without considering the details of their claim, that this Commission has no objection to any adjustment they may make with the Adams Express Company, provided that it is a bona fide adjustment and not an attempt to evade the prohibition against discrimination in rates or service.

I return herewith the correspondence file transmitted to me.
Yours very truly,
(Signed) ABEL E. BLACKMAR,

Counsel to the Commission.

Free Transportation Prohibited, Except Under Contracts for Rapid Transit Railroads in New York City - Public Service Commissions Law, Sections 15, 33-Railroad Law, Sections 169, 170 N. Y. State Constitution, Art. 13, Section 5.

OPINION OF COUNSEL.

November 14, 1907. TRAVIS H. WHITNEY, Secretary, Public Service Commission for the First District: DEAR SIR. I am in receipt of your letter of November 12, asking advice as to transit inspectors and other agents of the Commission entering upon or riding upon trains or cars of the Interborough Company in the subway, and of other companies, without paying fare.

It is provided by the Public Service Commissions Law, section 15, that every Commissioner, counsel to the Commission, secretary thereof, and every person employed or appointed to office by the Commission or by counsel to the Commission shall be and be deemed to be a public officer; railroad companies and their officers are forbidden to offer or to give to any Commissioner, counsel to the Commission, secretary or any officer employed or appointed to office by the Commission or by counsel to the Commission, any free pass or transportation or any deduction in fare to which the public generally are not entitled; and it is provided that if any Commissioner, counsel, secretary or person employed or appointed to office by the Commission or counsel to the Commission shall violate any provision of this section (15) he shall be removed from the office held by him.

It is provided by the Constitution of the State of New York (Article XIII, section 5) that no public officer or person elected or appointed to a public office under the laws of the State shall directly or indirectly ask, demand, accept, receive or consent to receive for his own use or benefit or for the use or benefit of another any free pass or free transportation from any person or corporation or make use of the same himself or in conjunction with another. A person who violates any provision of this section shall be deemed guilty of a misdemeanor and shall forfeit his office on the suit of the Attorney-General.

It is provided by the Penal Code, section 417, as follows:

"Any railroad commissioner or any secretary, clerk, agent, expert or other person employed by the board of railroad commissioners who

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"2. Accepts, receives or requests, either for himself or for any other person any pass from any railroad corporation *** is guilty of a misdemeanor."

It was provided by section 169 of the Railroad Law, now repealed, as follows: "In the discharge of their official duties the commissioners, their officers, clerks and all experts and agents, whose services are deemed temporarily of importance, shall be transported over the railroads in this State free of charge upon passes signed by the Secretary of State."

Under the provisions of this section it was held that the above (Article XIII, section 5, of the Constitution) did not prohibit the Railroad Commissioners, their clerks, agents and experts from accepting and using passes issued by the Secretary of State for their transportation while engaged in public business. (See Matter of Railroad Commissioners, 11 Misc. 103.)

The Public Service Commission for the First District has succeeded to the powers and duties of the Board of Railroad Commissioners within specified territory; but the scheme provided by the Railroad Law for carrying the expenses of the Railroad Commission provided that the total annual expense, with certain exceptions, should not exceed $100,000 and should be borne by the several corporations owning or operating railroads, according to their means, to be apportioned by the Comptroller.

These sections of the Railroad Law (169 and 170) were repealed by the Public Service Commissions Law and the scheme for financing the Public Service Commission is different, in that its expenses are paid by the State, in the case of the Commission for the Second District, and in part by the State and in part by the city of New York as to the Commission for the First District. The provision, therefore, which allowed the Railroad Commissioners and their subordinates to accept and use passes for transportation on railroads in the course of their duty was one which was in accordance with the statutory provision that the railroads were to bear the expenses of the Commission, but does not coincide in reason or in principle, with the provisions of the Public Service Commissions Law, that the expenses of the Commission are to be borne by the city or by the State and that free transportation is specifically forbidden.

I do not think that any officer or subordinate of the Commission can legally receive or use free transportation upon any railroad or street railroad within the jurisdiction of the Commission, even in the course of his duty of inspecting or supervising the construction or operation of such railroad, except as hereinafter stated. With reference to the functions of the Public Service Commission, in respect to rapid transit contracts for the construction, maintenance and operation of subways, it seems to me that there is an exception to the general rule affecting the

Commissioners, and employees of the Commission, under the provisions of section 33 of the Public Service Commissions Law, wherein it is provided:

"Nothing in this act shall be construed 乖 to prohibit any common . carrier from transporting persons or property as incident to or connected with contracts for construction, operation or maintenance, and to the extent only that such free transportation is provided for in the contracts for such work."

By the terms of the McDonald contract for the construction, maintenance and operation of the Manhattan-Bronx subway and in the contract for the BrooklynManhattan subway, there are provisions which seem to come under this provision of the act. The McDonald contract, in the construction portion, at page 61, reads as follows:

"The contractor will at all times give to the Board and its members, the engineer and the assistants and superintendents under the engineer and any persons designated by the board or its president, all facilities, whether necessary or convenient for inspecting materials to be furnished and the work to be done under this contract. The members of the board, the engineer, and any superintendent, assistant or other person bearing his authorization or the authorization of the board or its president, shall be admitted at any time, summarily and without delay, to any part of the work or to the inspection of materials at any place or stage of their manufacture, preparation, shipment or delivery."

In Contract No. 2-known as the contract for the Brooklyn-Manhattan subway - there is a clause (page 55) somewhat similar, reading as follows, also in the construction part of the contract:

"The board contemplates and the contractor hereby approves the most thorough and minute inspection by the board, its engineer, and their representatives and subordinates, of all work and materials and of the manufacture or preparation of such materials from the beginning of construction to the final completion of construction and equipment."

Both the Manhattan-Bronx subway contract (page 173) and the Brooklyn-Manhattan contract (page 171) also contain a provision reading as follows, in the operating part of the contract:

"The contractor shall at all times provide all reasonable conveniences for the inspection of the railroad and equipment and every part thereof by the board, its members, its engineers and subordinates. The members of the board, its engineers and subordinates, shall, at any time, upon its authority, have access to any part of the railroad or equipment or to any materials therefor in process of manufacture."

In the construction work it seems to me that the two provisions first mentioned are sufficient, as to these subways, to authorize free transportation to be used by the representatives of the Commission charged, under the direction of the chief engineer, with the inspection of the construction work.

In view of the city's lien on the equipment and the contractor's specific obligations as to maintenance and operation of the subways, I think also that the section of the contract last above quoted is sufficient to authorize the engineers and other subordinates of the Commission to use free transportation to inspect the railroad and its equipment with reference to its maintenance and operation. This is limited to their necessary presence in the stations and cars of the operating company in the performance of their duty of inspection.

(Signed)

Very truly yours,

ABEL E. BLACKMAR,
Counsel to the Commission.

Grade Crossings-Action Required by the CommissionMatter of the Grade Crossing of the Long Island Railroad Company and the Sea Beach Railroad Company at SixtyFifth street between Fourth and Fifth avenues, Brooklyn -Railroad Law, Sections 60, 61.

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OPINION OF COUNSEL.

October 3, 1907.

Public Service Commission for the First District:

GENTLEMEN.-I am in receipt of communication of September 27. referring to the grade crossing of the Long Island Railroad and the Sea Beach Railroad Company with Sixty-fifth street, Borough of Brooklyn.

The report of Acting Chief Engineer and Acting Superintendent Sheridan of the Bureau of Highways shows that Sixty-fifth street, at the point of grade crossing

(between Fourth and Fifth avenues), is not a legally or physically opened street. The report further shows that the railroad tracks now cross the proposed street in deep cuts.

Superintendent Sheridan's report refers to the tracks of the New York and Sea Beach Railroad Company. This company no longer exists, having been succeeded by the Sea Beach Railroad Company, which is leased and operated by the Brooklyn Heights Railroad Company. The Sea Beach Railroad Company is classed as a steam surface railroad company, although operated by electricity. (Barnett v. Brooklyn Heights Railroad Company, 53 App. Div. 432.) The Long Island Railroad Company is a steam surface railroad.

The procedure of the Board is prescribed in the statute, Railroad Law, sections 60 to 69.

Assuming that the city decides that the construction of the street is necessary, section 61 of the Railroad Law (quoted below in full) requires the Board of Railroad Commissoners to determine, after a hearing, whether the street shall be constructed over or under such railroad or at grade.

If the street is to be carried over the tracks the Board shall determine the height. length and the material of the bridge or structure and the length, character and grades of its approaches.

If the street is to be constructed below grade of the tracks the Board shall determine the manner and method of carrying the street under the tracks and the grades thereof.

If the street is to be constructed to cross at grade the Board shall determine the manner and method of crossing at grade and decide upon what safeguards shall be maintained.

Your Commission has, of course, succeeded to the powers and duties of the Board of Railroad Commissioners.

Section 62 of the Railroad Law provides for the alteration in manner of crossing highways.

Section 64 of the Railroad Law provides for the maintenance of highway bridges over railroads and for maintaining highways passing under railroads.

Section 65 provides that when, under the provision of section 61, a new street is constructed across two or more existing steam surface railroads, as is the case here, 50 per cent. of the cost shall be borne by the city and the remaining 50 per cent. shall be divided between the railroads in such proportions as shall be determined by the Board of Railroad Commissioners. This section also contains further details for approval of work and apportionment of expense by the Board of Railroad Commissioners.

Section 61 of the Railroad Law:

"(Manner of constructing new streets, highways, etc., across steam surface railroads.) When a new street, avenue or highway, or new portion of a street, avenue or highway, shall hereafter be constructed across a steam surface railroad, other than pursuant to the provisions of section sixty-two of this Act, such street, avenue or highway, or portion of such street, avenue or highway, shall pass over. or under such railroad or at grade, as the Board of Railroad Commissioners shall direct. Notice of intention to lay out such street, avenue or highway, or new portion of a street, avenue or highway, across a steam surface railroad, shall be given to such railroad company by the municipal corporation at least fifteen days prior to the making of the order laying out such street, avenue or highway by service personally on the president or vice-president of the railroad corporation, or any general officer thereof. Such notice shall designate the time and place and when and where a hearing will be given to such railroad company, and such railroad company shall have the right to be heard before the authorities of such municipal corporation upon the question of the necessity of such street, avenue or highway. If the municipal corporation determines such street, avenue or highway to be necessary it shall then apply to the Board of Railroad Commissioners before any further proceedings are taken, to determine whether such street, avenue or highway shall pass over or under such railroad or at grade, whereupon the said Board of Railroad Commissioners shall appoint a time and place for hearing such application, and shall give such notice thereof as they judge reasonable, not, however, less than ten days, to the railroad company whose railroad is to be crossed by such new street, avenue or highway, or new portion of a street, avenue or highway, to the municipal corporation and to the owners of land adjoining the railroad and that part of the street, avenue or highway to be opened or extended. The said Board of Railroad Commissioners shall determine whether such street, avenue or highway, or new portion of a street, avenue or highway, shall be constructed over or under such railroad or at grade; and if said Board determine that such street, avenue or highway shall be carried across such railroad above grade then said Board shall determine the height, the length and the material of the bridge or structure by means of which such street, avenue or highway shall be carried across such railroad, and the length, character and grades of the approaches thereto; and if said Board shall determine tha such street, avenue or highway shall be constructed or extended below the grade said Board shall determine the manner and method in which the same shall be so carried under, and the grade or grades thereof; and if said Board shall determine that said street, avenue or highway shall be constructed or extended at grade said Board shall determine the manner and method in which the same shall be carried over the said railroad at grade and what safeguards shall be maintained. The decison of the said Board as to the manner and method of carrying such new street, avenue or highway across such railroad, shall be final, subject, however, to the right of appeal hereinafter given. The decision of said Board rendered in any proceeding under this section shall be

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