Section 51 provides that "If in the judgment of the Commission having jurisdiction any railroad corporation or street railroad corporation does not run trains enough or cars enough or possess or operate motive power enough reasonably to accommodate the traffic, passenger and freight transported by or offered for transportation to it, or does not run its trains or cars with sufficient frequency the Commission shall have power to make an order directing any such railroad corporation or street railroad corporation to increase the number of its trains or of its cars, etc." This section is most significant, for here the Legislature is itself dealing with transportation appliances used by the carriers subject to the act, and it is hardly open to doubt that if the Legislature had the regulation of ferries in mind it would have applied such an important provision to them by some reference to boats, etc., and not left it exclusively applicable to railroads. (e) Uniform system of accounts. The portion of section 52 which authorizes the Commission to "establish a uniform system of accounts to be used by railroads and street railroad corporations and other common carriers and prescribe the form of accounts, records and memoranda of the movement of traffic, as well as receipts and expenditures of money." would apply to all common carriers, but not the latter part of the section, which provides that "The Commission shall at all times have access to all accounts, records and memoranda kept by railroad and street railroad corporations and may prescribe the accounts in which particular outlays and receipts shall be entered * So that it would seem that the Commission may establish a uniform system of accounts for all carriers, but can only examine the books of railroads. (f) Franchise, stock and bond issues. Section 35 providing that "Without first having obtained the permission and approval of the proper commission no railroad corporation, street railroad corporation or common carrier shall begin the construction of a railroad or street railroad or any extension thereof is restricted exclusively to railroad corporations, and the same is true of the first paragraph of section 54, which provides that "No franchise * * to own or operate a railroad or street railroad shall be assigned, transferred or leased * proper commission * "No franchise unless * * * approved by the to own or operate a railroad or street railroad shall The second paragraph provides that hereafter purchase any part of the capital stock of any railroad corporation or street railroad corporation or other common carrier unless authorized to do so by the Commission no stock corporation centum of the total capital stock issued by any railroad corporation or street railroad corporation or any other common carrier * * shall purchase * and that more than ten per This prohibition against acquiring any of the stock of a common carrier seemingly applies only to railroad companies, except in the case of stock corporations acquiring more than ten per cent. of the stock of a common carrier. The concluding section of this subdivision is broad enough to cover all carriers and provides that * ** * Section 55. "A common carrier, railroad corporation or street railroad corporation may issue evidence of indebtedness payable at periods of more than twelve months * when necessary for the acquisition of property provided, and not otherwise, that there shall have been secured from the proper commission an order authorizing such issue Such common carrier, railroad corporation or street railroad corporation may issue notes * payable at periods of not more than twelve months without such consent * (g) Penalties and Proceedings. These provisions are broad enough to cover all carriers, if they come within the other provisions of the act, and do not require extended quotation or discussion. (h) Interstate Traffic. This is applicable to railroads alone, since the Commission is only authorized to "investigate freight rates on interstate traffic on railroads within the State," SUMMARY AND CONCLUSION. The analysis of the act in the foregoing pages shows that the plan upon which the act was drawn contemplated very broad sections in providing for the general powers of the Commissions, and then other sections, also broadly drawn, providing for details of transportation. Broad as these provisions are, it will be noted that nowhere in the act is there any language having a special application to ferry companies. Taking up the most important subjects with which the act deals, we find that under adequacy of service, so far as details are concerned, the duty placed upon a carrier is in certain cases to provide switches, and the Commissions are empowered to require connections between carriers by switches; to require repairs or improvements in tracks, switches, terminal facilities and motive power, and to require railroad corporations to run more trains or cars. In the almost equally important matter of rates, although more general in its scope, the language is more applicable to railroads, especially the details such as those in regard to mileage tickets and joint rates. In regard to discrimination connecting carriers are required to receive " freight cars" and "haul" the same; carriers are required to provide sufficient " cars for "" freight in car-load lots" and the provision for "continuous carriage" and "breakage in bulk" relate to evils common to railroads. In the matter of investigations, the authority of the Commissions is generally unrestricted, but in the provision for the investigation of accidents the only accidents provided for are those happening on railroads. In the provision for uniform system of accounts, although the Commission is empowered to establish a uniform system of accounts for common carriers, its right of access to accounts is seemingly restricted to those of railroads, and finally in the matter of approval of franchises and stock and bond issues the only franchise needing approval is one to build a railroad or an extension thereof. The approval of the Commission is necessary only to the transfer of a railroad franchise and the prohibition against a corporation acquiring any stock in a common carrier corporation without the Commission's approval extends only to railroad corporations. The inquiry is pertinent if the necessity for the regulation of water transportation existed, why did the Legislature in all the important respects referred to confine its attention to railroads when a slight change of phraseology would have embraced these other classes of carriers? An important and significant fact to consider as evidencing legislative intention is the treatment of the question of placing pipe line companies within the jurisdiction of the Commission. In the act as originally introduced, these companies were included in the definition of common carrier, but before the act reached final passage they were stricken therefrom. What other view can be tenable but that the Legislature considered that this act was limited in its effect to the carriers enumerated? To take any other view would be to place pipe line companies again within the purview of the act or to omit them for some illogical reason, while at the same time retaining such carriers as ferry and navigation companies. Sections 1 and 25, to which I have already referred, at some length, do furnish a basis for the argument that the general provisions, such as section 25, empower the Commissions to regulate all common carriers, and that the provisions for detail are not intended to limit the broad jurisdiction, but are intended merely to make more clear its application to certain carriers: but the primary rule of construction is to ascertain the legislative intent, and I do not think that the act, taken as a whole, authorizes such a broad and sweeping construction, but on the contrary it seems to me that the Legislature, by its application of this legislation to the details referred to, clearly showed that the general language was to be restricted to the carriers specifically named in such definition. It is by this construction alone that we can reconcile the action of the Legislature in striking from the definition the words "pipe line companies." Although the fact that the problem of railroad regulation was the most pressing and, therefore, most prominent in the minds of the framers of the act, and that this prominence necessarily colored the language used throughout, whether intended to apply to railroads alone or to other common carriers, such as express companies as well, and although probably no one of the limitations of detail to railroads would of itself warrant the conclusion, yet it is my opinion that their totality, together with the form of the definition and the action of the Legislature in regard to pipe line companies and all other considerations to which I have referred, evidences the intention on the part of the Legislature to confine its action to the classes of carriers specifically named in the definition. In construing this act it must be also borne in mind that legislation of this character marks a wide departure from American ideals of government upon which the theory of the Jeffersonian school, of as little government as possible, has had a wide and lasting effect, and that where this departure is made to meet the complexities of modern transportation and industrial conditions, the courts are bound to carefully examine the basis for the wide powers exercised by the Commissions, and where any enlargement of such powers is claimed, it must rest on a clear and stable basis. The fact that carriers engaged in transportation on navigable waters come within the admiralty jurisdiction of the Federal Courts, and that provision for them might give rise to embarrassing complications, may or may not have influenced the Legislature in this regard. In conclusion, this view is further borne out by a consideration of this question in its broader or political aspect. The problem of railroad regulation has since and even prior to the enactment of the first Interstate Commerce Act in the late eighties, been a matter of vital importance to the country at large and especially during the last six or eight years--has occupied probably the most prominent place in American politics; but at no time during the campaign to secure this legis lation, in which the entire subject of transportation was thoroughly discussed in all its bearings, has there been, to my knowledge, any agitation for the regulation of water transportation; nor is it covered by the Interstate Commerce Act, upon which the Public Service Commissions Law is so largely modeled, save where those agencies are operated in conjunction with railroads. In this State, during the gubernatorial campaign preceding the enactment of this legislation, in which the discussion of these questions was widespread, there were no abuses in the manage ment of ferry or navigation companies brought to light and there was no public demand for legislation affecting them, nor was there any reference to them in the Governor's message, pursuant to the recommendation of which this law was passed. Regulation for railroads and all carriers connected with them in any way, and of gas and electric corporations, was demanded and was granted, but there was no such demand in the case of ferry companies, and in the public mind the necessity for their regulation did not exist. I, therefore, beg to report that in my opinion the Commission is without jurisdiction over ferries, and has, therefore, no power to act upon the complaint referred to. Very truly yours, (Signed) LE ROY T. HARKNESS, Assistant Counsel. Jurisdiction-Commission for the First District-Ferries Included in Railroad - Public Service Commissions Law, Section 2. OPINION OF COUNSEL. October 11, 1907. TRAVIS II. WHITNEY, Esq., Secretary, Public Service Commission for the First District: DEAR SIR.I have your letter of the 10th inst., transmitting a copy of a letter from Richard L. Leo, dated the 8th inst., complaining of the ferry service maintained by the Long Island Railroad between Thirty-fourth street, in this borough. and Long Island City. Without reference to the general question of jurisdiction of ferries disassociated with railroad companies, I desire to advise you that in my opinion the Commission has jurisdiction over the case presented by virtue of section 2 of the Public Service Commissions Law, which provides in part that "the term railroad' includes every railroad with all ferries * used, operated, controlled or owned Yours very truly, by or in connection with any such railroad." (Signed) ABEL E. BLACKMAR, Counsel to the Commission. Jurisdiction Over Common Carriers" Doing Business Exclusively" - Filing Schedules Public Service Commissions Law, Sections 2, 5. OPINION OF COUNSEL. October 25, 1907. TRAVIS H. WHITNEY, Esq., Secretary, Public Service Commission for the First District: DEAR SIR.I have your letter of the 19th inst., transmitting a communication from the New York and New Jersey Steamship Company of the 18th inst., inquiring whether they are required to file freight schedules under the Public Service Commissions Act. The company, as a freight company, is. as respects its business transactions within this State, within the definition of the term "common carrier" in section 2 of the act; but the company in this case raises the question whether, since all its business is not transacted within the First District, it comes within the jurisdiction of the Commission for that district. Section 5 provides that the jurisdiction of the Commission for the first district shall extend (paragraph IV) "to any common carrier operating or doing business exclusively within that district." The language of this paragraph is ambiguous and immediately gives rise to the question whether, in order to come within the jurisdiction of this Commission, all the carrier's business must be transacted in this district or whether the jurisdiction of the Commission attaches to that portion of the business of the company which is transacted exclusively within the district. I favor the latter view, although there is considerable force in the argument that according to strict rules of grammatical construction the jurisdiction of this Commission only attaches to a company which does all its business here. The primary object is, of course, to ascertain the intention of the Legislature and the scheme of the act is to place all matters arising within the first district within the jurisdiction of the Commission for that district and all the matters arising in the second district within the jurisdiction of the Commission for that district. Such companies are, of course, within the jurisdiction of one of the Commissions and it is difficult, keeping in mind the scheme of the act, to understand what reason there would be for placing under the jurisdiction of the Commission for the second district business which is entirely consummated within this district. In common parlance the words "doing business exclusively are usually understood as referring to the business transacted and I think the Legislature in adding to the words "operating * exclusively" the words " doing business exclusively" intended that the Commission for this district shouid have jurisdiction not only over those companies which transact their entire business here, but also the business of other companies which is exclusively within this district. As a practical matter I think it would be well for the Commission to require reports from these companies, basing its action upon the construction which I ave given this paragraph. This same reasoning applies to the cases of express companies about which I have conferred with Commissioner Eustis, and in which case it was decided that we should require them to file the schedules called for by the act. Yours very truly, ABEL E. BLACKMAR, (Signed) Counsel to the Commission. Commission May Rescind Resolution Adopting Rapid Transit Route Passed by Board of Rapid Transit Railroad Commissioners Methods of Constructing Subways - Rapid Transit Act, as Amended by Elsberg Law. OPINION OF COUNSEL. September 18, 1907. Public Service Commission for the First District: GENTLEMEN.I am in receipt of your communication dated yesterday, in which you ask for opinions on the following questions: (1) Whether the Brooklyn Rapid Transit Company has any franchise rights in New Utrecht avenue in Brooklyn, and the nature and extent of such rights. (2) Whether the Rapid Transit Company Act requires the Public Service Commission to proceed to make contracts for the construction of the Fourth avenue subway. I have referred the first of these questions to one of my assistants for investigation and will report the result of such inquiry later. I answer the second of said questions as follows: Section 34 of the Rapid Transit Act contains the following provision: "The Board of Rapid Transit Railroad Commissioners for any city shall, prior to the time of the final grant of any franchise under the provisions of this act or the making of a contract for construction of any railroad under the provisions of this act, have power to rescind and revoke any resolution or resolutions of such board adopting any routes or general plan for the rapid transit railroad adopted by such board and, in the discretion of the board, in lieu thereof, to adopt new routes and general plans." It necessarily follows from this that your board is not under any legal compulsion to construct the Fourth avenue subway, but has power to rescind the resolution establishing such route, and so put an end to the whole project. The question, however, might arise, whether your board is limited in its action to one of two alternatives -to proceed immediately with the construction of the said subway, or to rescind the resolution establishing the route. The decision of this question requires a further examination of the law. At the time when your board came in power, the Beard of Rapid Transit Railroad Commissioners had adopted routes and a general plan for a number of subway lines in the city of New York, including routes known as: (1) The Seventh and Eighth avenue route. (2) The Lexington avenue route. (3) The Third avenue route. (4) The Jerome avenue route. (5) The Fourth avenue and Bensonhurst route. (6) The (so-called) Tri-Borough route. (7) The West Farms and White Plains route. The routes, together with others, had been adopted by the Board of Rapid Transit Railroad Commissioners, approved by the Board of Estimate and Apportionment and the consents of the abutting property owners or of the Appellate Division in lieu thereof had been obtained. The estimated cost of the routes above specified is between 150 and 200 million dollars. Under the Rapid Transit Act, as amended by the Elsberg Law, the city might proceed with these subways in any of the four following ways: First. By a contract for construction, maintenance and operation, with the same person. Second. By a contract or contracts for construction, with separate contracts for equipment and operation. Third. By a contract or contracts for construction and equipment and a separate contract for operation. Fourth. By a contract or contracts for construction and equipment followed by municipal operation. It is the province of the Board of Estimate and Apportionment to decide which of these courses shall be pursued. On the 7th of December, 1206. the Board of Estimate and Apportionment adopted a resolution, recommending to the Board of Rapid Transit Railroad Commissioners that alternate bids be invited, first, for construction alone, and second, for construction, equipment and operation, for each of the routes hereinabove specified. Under this resolution, bids for three of the subways, viz., the Seventh and Eighth avenue, the Third avenue and the Jerome avenue, were invited; but no proposals were received. On the 4th day of June, 1907, at the request of the Rapid Transit Railroad Commissioners, the Board of Estimate and Apportionment passed a resolution modifying the resolution hereinbefore referred to of December 7, 1906, as to the Fourth avenue and Bensonhurst route and the said Tri-Borough route, and, instead of the provisions of the resolution of December 7, 1906, the Board of Rapid Transit Railroad Commissioners was authorized to let contracts for construction only for the Manhattan Bridge route, part of route. 9-C in Brooklyn, part of route 11-E-1 in Brooklyn, and routes 11-A, 11-B, 11-F (Bensonhurst route) in the borough of Brooklyn said routes together forming a line from Chrystie street in the borough of Manhattan, across the Manhattan Bridge, and under Fourth avenue in the borough of Brooklyn. The Rapid Transit Act contains the following provision: "As soon as such consents, where necessary, shall have been obtained for any rapid transit railroad or railroads and the detailed plans and specifications have been prepared, as is provided in section 6 of this act, the said board, for and in behalf of the city, shall enter into a contract with any person, firm or corporation which, in the opinion of said board, shall be best qualified to fulfill and carry out said contract, for the construction of said road or roads," etc. This provision must be read in connection with other clauses, viz.: (Section 34.) "And the said board may in any case contract for the construction of the whole road or all the roads provided for by the aforesaid plans in a single contract, or may by separate contracts, executed from time to time, or at the same time, with one or more such persons, firms or corporations, provide for the construction of such road or roads," etc. (Section 34-e.) Nothing contained in this act shall be deemed, or be construed as intending, to limit, or as limiting, in any manner, the discretion of the board of rapid transit railroad commissioners, provided in the opinion of the board of estimate and apportionment, or other analogous local authority of such city it is expedient, practicable and in the public interest to do so, to enter into contracts for construction, equipment, maintenance and operaton with the same person, firm or corporation, or for any one or more of said purposes with the same person, firm or corporation, or with different persons, firms or corporations, either in one contract or in separate contracts, and at any time or times." (New section, L. 1906, Ch. 472, § 6.) These provisions impose on the board the general duty to proceed with construction of a system of rapid transit in the city. But there is no greater obligation to proceed with one route than with another. As to the time when bids shall be invited for any particular route, I believe that discretion rests with the Commission as successor to the power of the Board of Rapid Transit Railroad Commissioners. This discretion in the Commission was recognized by the Appellate Division of the Supreme Court in the Matter of the Board of Rapid Transit Railroad Commissioners, etc., 114 App. Div. 379. This was an application to approve nineteen different routes, the estimated cost of the construction and equipment of which aggregated $450,000,000, whereas the city's borrowing capacity was only $61.000.000. The court refused to tie up these routes permanently, and limited its approval to a period of two years, saying: "This will enable them (i. e., the Board) within the period named, in view of the then existing condition of the city's finances. to determine just what routes should be built; and after that time they should be required, if able to construct other routes, to renew their application to this Court." I am of the opinion that the Commission is under no legal obligation to proceed at once to contract for the construction of the Fourth avenue subway; but has discretion as to the time when the contract shall be made, and also, as has been pointed out, has full power to rescind the resolution adopting this route. (Signed) Yours respectfully, Modification of Subway Contracts - Consents Necessary -Changes in Route - Rapid Transit Act, Sections 4, 5, 37, 38. OPINION OF COUNSEL. Public Service Commission for the First District: December 17, 1907. GENTLEMEN.- I have been asked to advise the Commission whether a change can be made in the location of the subway structure of the Brooklyn and Manhat |