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Express Companies - Discrimination and Preference - $50

Clause in Contract as Affecting Adjustment of Liability -
Public Service Commissions Law, Sections 31, 32, 35.

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."

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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 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) ABER E. BLACKMAR.

Counsel to the Commission. See page 232

Free Transportation Prohibited, Except Under Contracts for

Rapid Transit Railroads in New York City — Public Ser
vice Commissions Law, Sections 15, 33 - Railroad Law,
Sections 169, 170 — N. Y. State Constitution, Art. 13, Sec-
tion 5.
ÖPINION 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 publie 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

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 railrcads 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 P lic 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 unon 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

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." ID 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-Manhættan 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 Conimission 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.

Very truly yours,
(Signed) ABEL E. BLACKMAR.

Counsel to the Commission.

Grade Crossings — Action Required by the Commission

Matter of the Grade Crossing of the Long Island Railroad
Company and the Sea Beach Railroad Company at Sixty-
Fifth street between Fourth and Fifth avenues, Brooklyn

Railroad Law, Sections 60, 61.

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 coinpany, although operated by electricity. (Barnett vi Brooklyn Heights Railroad Compuny, 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 neto streets, highroays, etc., across steam surface rail. roads.) 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 person. ally 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 shali then apply to the Board of Ruilroad Commissioners before any further proceedings are taken, to determine whether such street, avenue or highway shall pass over or under such railroad or at yrade, 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,

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 that such street, avenue or highway shall be con. structed 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 sajd Board as to the manner and method of carrying such new street, avenue or highway across such rallroad, 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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communicated within twenty days after final hearing to all parties to whom notice of the hearing in such proceeding was given or who appeared at such hearing by counsel or in person."

From the facts as stated in the correspondence it does not appear that any action by the Commission is required until the city has determined that the street is necessary, and applies to the Public Service Commission for a determination of the question whether the street shall pass over, under or across at grade.

I think it would be well to advise the Borough President that the Commission will consider the question when application is made by the city.

Yours very truy,
(Signed) ABEL E. BLACKMAR,

Counsel to the Commission.

" In

Jurisdiction of the Commission over the Municipal Ferry Oper

ated Between Manhattan and Richmond Words
clude," “ Common Carrier,” Defined - Public Service Com-
missions Law, Sections 1, 2, 25-27, 29-40, 45-55.

OPINION OF COUNSEL.

November 12, 1907. Public Service Commission for the first District :

GENTLEMEN.- I am in receipt of the copy of the letter to the Commission dated September 6, signed by Frank Rutherford, which raises the question whether the Municipal Ferry operated between Manhattan and Richmond is subject to the juris. diction of this Commission as common carrier.

I have referred this matter to Mr. Harkness with the request that he make a full digest of the provisions of the act which may have a bearing upon its construction in this respect, and also that he examine and report upon the authorities which are in point. I have received from him an elaborate report upon the subject, which I herewith transmit to the Commission.

I concur in the conclusion reached by Mr. Harkness, that the definition of common carriers contained in section 2 of the act is meant to exclude all common carriers not therein specifically designated. The word “includes” might be held to extend the definition and not limit it; but taking into consideration all of the other provisions of the act, together with the apparent uselessness of this designation, unless it is meant to enumerate the kinds of common carriers who are subject to the provisions of the act, I have reached the conclusion that the word “common carrier" is so limited.

In this connection. I wish to call your attention to the fact that pipe-line companies were originally enumerated within the agencies included in the term "common carrier," but were subsequenty stricken out before the bill was enacted into law. This is indicative of an intention on the part of the Legislature to exclude all agencies except those therein enumerated, I also herewith transmit

to you a letter which I have received from Mr. Stevens, the Chairman of the Commission for the Second District. He suggests that if the question of the meaning of the word “common carriers comes before your Com. mission, we communicate with the Commission for the Second District before reaching a final decision, and I would suggest that such a communication be made.

Yours very truly.
(Signed) ABEL E. BLACKMAR,

Counsel to the Commission.

November 7, 1907. Hon, ABEL E. BLACKMAR, Counsel to the Public Service Commission for the First

District: MY DEAR SIR.— I desire to report upon the question of the jurisdiction of the Commissions raised by the letter of Mr. Frank Rutherford, Secretary of the Raritan Bay Park Association, of 6th September, in which he complains that the refusal of the municipal authorities of the city of New York to grant the application of certain residents of Richmond borough to have the municipal ferry, running from the Battery in the borough of Manhattan to St. George in the borough of Rich. mond, check and carry the baggage of passengers and to provide facilities therefor at its terminals, works a great hardship upon such residents, and requests this Commission to take action thereon. On receipt of such letter Commissioner Me. Carroll orally asked you whether in your opinion the Commissions have jurisdiction over ferries and ferry companies.

The Public Service Commissioris Law. in its second section, defines the more Important terms with which it deals and provides :

Sectioa 25. “ Application of Article.-- The provisions of this Article (Article II) “shall apply to the transportation of passengers, freight or property, from one point to another within the State of New York, and to any common carrier performing such service."

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