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Paragraph 2 provides that

* Each Commission shall have the general supervision of all common carriers, railroads, street railroads, railroad corporations and street railroad corporations within its jurisdiction, as hereinbefore defined, and shall have power to examine the same and keep informed as to their general condition, their capitalization, their franchises and the manner in which their lines oned, leased, controlled and operated are managed, conducted and operated, not only with respect to the adequacy, security and accommodation afforded by their service, but also with respect to their compliance with all provisions of law,

orders by the Commission and charter requirements." The words" lines owned, leased, controlled or operated" are inartificial as applied to ferries which have routes but not lines which could be owned, leased, controlled or operated in the usual sense of those terms.

Paragraphs 2 and 3, authorizing the Commission to examine all books and papers, and providing for hearings by the Commission relating to proposed changes in the law relating to any common carrier, railroad corporation or street railroad corporation, are comprehensive enough to cover all classes of carriers, as is also section 46, providing for the making of reports by common carriers, railroad and street railroad corporations.

(c) Investigations. Section 47 provides that

“ Each commission shall investigate the cause of all accidents on any railroad or street railroad within its district.

Every common carrier, railroad corporation and street railroad corporation is hereby required to give immediate notice to the Commission of every accident happening upon any

line of railroad or street railroad owned, operated, controlled or leased by it.” This is probably as clear an illustration as appears in the act of the limitation of details to railroads. It might, of course, be argued that the general provisions cover all carriers and that this detail is only intended to make more clear its application to one class of carriers, and if the word ferries had occurred in the definition this would probably be so; but here we are endeavoring to ascertain intent and it would seem only reasonable to suppose that if the Legislature had ferries in mind, it would have drawn a section like this one to cover them, for accidents to ferry and steamboats are usually more serious and fraught with even a larger loss of life than in the case of railroads. Paragraph 1 of the concluding section (48) of this subdivision, providing that “ Each commission may

investigate

any act or thing done or omitted to be done by any common carrier, railroad corporation or street railroad corporation subject to its supervision" and that " The commission must make such inquiry in regard to any act or thing done or omitted to be done by any such common carrier, railroad corporation or street railroad corporation in violation of any provision of law and in violation of any

order of the commission," is broad enough to cover any common carrier, as is also paragraphs 2 and 3 providing for the procedure to be followed on the filing of a complaint and authorizing the Commission, after investigation, to make the necessary orders.

(d) Porcer to fix rates, order changes, etc. Section 19 provides :

“ Whenever either commission shall be of the opinion after a hearing upon a complaint made, as provided in this act, that the rates, fares or charges

collected by any common carrier, railroad corporation or street railroad corporation subject to its jurisdiction

are unjust or in any wise in violation of any provision of law, the Commission shall determine the just and reasonable rates

and shall fix the same by order to be served upon all common carriers, railroad corporations or street railroad corporations by whom such rates, fares and charges are thereafter to be

observed." This is broad enough and so is the further provision authorizing the Commission to require any common carrier, railroad corporation or street railroad corporation to accord adequate facilities, but the section then goes on to provide that

“ The Commission shall have power by order to require every two or more common carriers or railroad corporations whose lines owned, operated, controlled or leased, form a continuous line of transportation or could be made to do so by the construction and maintenance of suitch connection to establish

a through route and joint rate." Although this language of this last part of the section might cover the case of traffic connection between a railroad and a ferry or steamboat, the presumption is against it and also against such a construction of section 50, which authorizes the Commission to require

“repairs or improvements to or changes in any tracks, switches, terminals or terminal facilities, motive power or any other property or device used by any common carrier, railroad corporation or street railroad corporation."

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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

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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

unless

approved by the proper commission "No franchise

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

and that no stock corporation

shall purchase

more than ten per centum the total capital stock issued by any railroad corporation or street

railroad corporation or any other common carrier 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

pavable at periods of not more than twelve months without such consent

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(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 Tramic, This is applicable to railroads alone, since the Commission is only authorized to “investigate freight rates on interstate traffic on railroads within the State,"

cars

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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 carriera are required to receive “freight cars and haul ” the same ; carriers are required to provide sufficient

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 hy 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 prominen in the minds of the framers of the and than 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, las 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 ('ommissions, and where any enlargement of such powers is claimed, it must rest on 2 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 time during the campaign to secure this legis.

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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 juris. diction 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 In

cluded in Railroad - Public Service Commissions Law,
Section 2.
OPINION OF COUNSEL.

October 11, 1907. Travis H. WHITNEY, Esq., Secretary, Publio Service Commission for the Firsi

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 terries

used, operated, controlled or owned by or in connection with any such railroad."

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

Counsel to the Commission.

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Jurisdiction Over Common Carriers — “Doing Business Exclu

sively” - Filing Schedules - Public Service Commissions Law, Sections 2, 5.

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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 anbiguous 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.

į 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 shoud 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 have given this faragraph. This same reasoning applies to the cases of express companies about which i have conferred with Commissioner Euistis, and in which case it was decided that we should require them to file the schedules called for by the act.

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

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 Board of Rapid Transit Railroad Commissioners had adopted rontes 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.

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