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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, 1906. the Board of Estimate and Apportionment adopted a resolution, recommendira lv 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 Commissicners, the Board of Estimate and Apportionment passed a resolution modifying the resolution hereinbefore referred 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, wliere 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, , 1900, C, 47, $ 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 latter 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 $150,000,000, whereas the city's borrowing canacity 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.

Yours respectfully,
(Signed) ABEL E. BLACKMAR,

Counsel to the Commission.

Modification of Subway Contracts - Consents Necessary

-- Changes in Route - Rapid Transit Act, Sections 4, 5,
37, 38.
OPINION OF COUNSEL.

December 17, 1907. Public Serrice Commission for the First District:

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.

tan loop in Centre street by supplemental contract with the contractors and without securing the consent of the Board of Estimate and Apportionment and of the abutting property owners.

Unuer section 38 of the Rapid Transit Act, the Commission, as successor to the Board of Rapid Transit Railroad Commissioners, may, from time to time, with the consent of the bondsmen or sureties of the contractor, agree with the rontractor upon changes in and modifications of the contract or the plans and specifications upon which the road is to be constructed. It is, however, provided therein that no change or modification in the plans and specifications consented to and authorized pursuant to section 5 of the act, shall be made without the further consent and authorization provided for in said section.

The consent and authorization last herein mentioned refers to the consent of the Board of Estimate and Apportionment and or we abutung propery owners. Section 4 provides that the general plan shall show the mode of operation and contain such details as to manner of construction as may be necessary to show the extent to which any street, avenue or other public place is to be encroached upon and the property abutting thereon affected." We have, therefore, to determine whether this proposed moditication alters the extent to which the street is to be encroached upon and the abutting property thereon affected, as shown in the general plan of the route, as it was originally consented to by the municipal authorities and authorized by the Appellate Division.

The case of the Park avenue deviation has been several times before the court. The maps and drawings of route No. 1 were, by resolution of the Board of Rapid Transit Railroad Commissioners, passed on February 4th, incorporated in and made a part of the reso ution showing the route and general plan. These drawings showed that the tunnel was to be located thirty-five feet easterly from the easterly side of Park avenue, and as they were a part of the resolution adopting the route and general plan, they determined the extent to which Park avenue could be legally encroached upon and the rights of abutting property owners legally aifected. Subsequently, the location of the subway was changed without the consent of the municipal authorities or the abuiting property owners, so that the easterly wall thereof was within seven feet of the easterly side of Park avenue. The court held that this deviation from the route was illegal. I have, therefore, examined the resolutions and the maps and plans establishing route No. 9, namely, the route through Centre street, to determine if they are so drawn as to restrict or limit the extent to which Centre street may be used for subway construction, either as against the city or as against the abutting property owners.

The general route through Centre street, as laid out by the Board of Papid Transit Railroad Commissioners, locate the subway generally in Centre street. The plan of construction provides, that there shall be four tracks in Centre street; that the tracks shall be placed in general under the center of the longitudinal streets, as far as practicable and convenient, but if required may be diverted to one side or the other of such longitudinal streets; that the roof of the tunnel shall be as near the surface as street conditions and grades will conveniently permit;: that the tunnels above described shall in no case be less than thirteen feet in height in the clear; that there shall be a width in the tunnels not exceeding fifteen feet for each track in addition to the thickness of the supporting walls, except that at stations, switches, turnouts, curves and cross-overs the width may be increased; that stations and station approaches shall in general be at the intersection of streets and shall be built under or over the streets and immediately adjoining private abutting property, or through private property, or both under or over the streets and through private property, that wherever it shall be necessary for the proper maintenance of pipes or other subsurface structures, the width of the tunnel may be enlarged on either or both sides by an additional width on either side of the route not to exceed fifteen feet. These are the substantial limitations upon the right to use the street and to affect abutting property which I find in the general plan. Drawings, were also annexed and presented to the Board of Estimate and Apportionment and the Appellate Division, but by resolution of the Board of Rapid Transit Railroad Commissioners it was expressly provided that they were adopted for convenience merely and not to be deemed a part of the description of the routes or a part of the general plans for any purpose whatever.

Up to this point this opinion has been devoted to the inquiry whether it is necessary to submit any modification of this contract to the Board of Estimate and Apportionment under the proviso contained in section 38, on the ground that such change involves a modification of the original route and general plan.

It still remains to cousider whether the provisions of section 37 require that an amendatory, contract should be submitted to the Board of Estimate and Apportionment. Such section provides for the application to the Board of Estimate and Apportionment to fix the amount of bonds to be sold for the purpose of furnishing money to carry out the contract. It further provides that the amount of bonds shall not exceed the limit prescribed by the Board of Estimate and Apportionment, and

“ No contract for the construction of such road or roads shall be made unless and until such board of estimate and apportionment or such other local authority shall have consented thereto and prescribed a limit to the amount of bonds available for the purposes of this section, which shall be sufficient to meet the requirements of such contract in addition to all obli

gations theretofore incurred and to be satisfied from such bonds." To determine whether this provision requires a submission of such modifying contract, it is necessary to trace the history of the law in this respeet. Prior to

1904, the Rapid Transit Act provided that the total amount of bonds to be sold without the consent of the Legislature first having been obtained should not exceed fifty millions of dollars, with a possible increase of $5,000,000 for the acquirement of necessary lands and easements. In that year, for the purpose of permitting other and additional rapid transit contracts to be made, this provision was repealed, and in the place thereof was enacted the provision hereinabove quoted.

In 1906, the Elsberg bill was passed, which referred the matter to the Board of Estimate and Apportionment, to decide whether the contract should be one for construction, equipment and operation, or for construction and equipment, or for construction only, and the provision already above quoted was continued in the law. At the time of the enactment of the Elsberg bill and as part of the same bill, section 38 was also amended by striking out the word "and" in such section and inserting the word or " in its place, thus showing the legislative intent to continue section 38 in full operation.

The conclusion which I draw is, that the above quoted provisions of section 37 refer to contracts which require the appropriation of money and do not refer to a modification of the contract which does not increase the cost of the work of the subway. When the clause limiting the total amount of bonds which could be sold for rapid transit purposes was repealed, it was the apparent legislative intent to commit to the Board of Estimate and Apportionment the final determination of the amount of money to be used for rapid transit construction, and to that end it provided that contracts for construction should be presented to the Board of Estimate and Apportionment, so that such board might base upon such contracts their determination as to the amount of money to be expended.

1, therefore, am of the opinion that it is not necessary to present any modifying contract to the Board of Estimate and Apportionment and obtain their consent thereto, unless either such modifying contracts first, contain a modification of the route and general plan originally consented to by the Board of Estimate and Apportionment and by the property owners or the Appellate Division, or second, require the expenditure of a larger sum of money,

I wish also to call your attention to the fact that it will be necessary to agree with a number of different contractors before this modification can be carried out, and any of them can, by refusing to consent, put a practical veto along the whole route. This proposed modification is not such as could be carried out by the mere direction of the engineer under the provisions of the contract.

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

Counsel to the Commission.

Construction and Operation of Flatbush Avenue Subway Ex

tension as an Extension of Contracts Nos. 1 and 2 — Rapid Transit Act, Sections 32 a, 38.

OPINION OF COUNSEL.

December 23, 1907. Public Service Commission for the First District:

DEAR SIRS.— I have the secretary's letter of the 12th inst., transmitting a copy of the following resolution :

Resolved, That the counsel be requested to prepare an opinion on the method or methods whereby a contract for the construction and operation of an extension of the fulton street, Brooklyn, subway, from Atlantic avenue station to Willink entrance, Prospect Park, can be made, and whether it can

be built as an extension of Contracts Nos. 1 and 2, and operated for 35 years." On examining this matter I find that this route extending from Atlantic avenue to Parkside avenue was considered by the Rapid Transit Board as an extension of Contract No. 2, being the contract for the construction of the Brooklyn-Manhattan route, and was, at the time of its adoption, greatly desired by the Interborough Rapid Transit Company as a complement to the subway already under construction by it. The route was adopted by the Rapid Tržinsit Board on March 24, 1904 (Rapid Transit Minutes, Vol. 5, p. 2598), by the Board of Aldermen, which then had jurisdiction to pass on franchises on August 4, 1904, and by the Mayor on August 22, 1904. The consents of the abutting property owners were obtained, as certified to the board by its counsel on December 29, 1904 (Rapid Transit Minutes, Vol. 5, page 3061), and have been recorded and are now in the safe in the secre. tary's office,

The only remaining consent necessary was that of the Park Commissioner, which was refused because of the injury that would be caused by the subway construction to the trees alongside the park on Ocean avenue. After some discussion he agreed to give his consent if the subway at that point was moved about twelve feet, encroaching upon private property on the other side of the street, which was to be acquired by the city at an estimated expense of about $300,000. No steps have been undertaken in that direction and the estimated cost would probably be greater today. As showing the route as laid out, I transmit herewith blue-prints of the two drawings adopted with the route and general plan by the Rapid Transit Board.

I understand that the Commission at present only contemplates the construction

of this route as far as the Willink entrance to Prospect park, but the consent of the Park Commissioner is still necessary, for, in my opinion, this route must be treated as a whole so far as consents are concerned, and the consents must all approve it as laid out and not a mere portion of it. In any event, the consent of the Park Commissioner is necessary for the part of the route from the Plaza to the Willink entrance.

The question whether this route could be built as an extension of Contract No. 2 is dependent upon a construction to be given section 38 of the Rapid Transit Act. This section in full is as follows:

“The Board of Rapid Transit Railroad Commissioners for and on behalt of the said city in which such road or roads may be constructed, may, from time to time, with the concurrence of six members of said board and the consent in writing, of the bondsmen or sureties of the person, firm or corporation which has contracted to construct, equip, maintain or operate said road or roads, or any of them, agree with the said contracting person, firm, or corporation upon the changes in and modifications of said contract, or of the plans and specifications upon which the said road or roads is or are to be constructed, but no change or modifications in the plans and specifications consented to and authorized pursuant to section 5 of this act shall be made without the further consent and authorization provided for in said section ; but in no event shall the annual rental to be paid to said city for the use of said road, be reduced below the minimum rate hereinbefore provided.”

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I desire to draw especial attention to the fact that this section applies to " changes in and modifications of said contract or of the plans and specifications upon which said road or roads is or are to be constructed," and that nowhere is the express permission given for the construction of extensions as such under modifying contract. The construction of this section in regard to extensions has twice engaged the attention of the counsel to the former Rapid Transit Board ; once in the case of the Fort Lee extension, and again in the case of the Van Cortlandt park extension.

In the letter of counsel of 16th July, 1903, printed at page 2219, Vol. 4 of the Rapid Transit Minutes, it is said :

“In drafting the papers for the proposed spur to Fort Lee Ferry on 130th Street and the proposed connection with the Manhattan Elevated Railroad at 3rd and Westchester Avenue, we have had to consider whether these spurs are to be deemed to be technically complete new routes within the meaning of the provisions of Sections 34 and 36 of the Rapid Transit Act prescribing the form of contracts and the procedure in letting them, or whether on the other hand, these spurs were to be treated merely as incidents of the main line of the Rapid Transit Railroad now under construction. We are satisfied that the latter is the case. Each of these spurs is very short, costing a relatively small sum of money, perhaps $100,000 or $150,000, and of no value whatever except

an incident to the Manhattan-Bronx Rapid Transit Railroad. It would seem to be quite absurd that, for the construction of these spurs, the Board should go through the illusory form of competition involving delay and large expense and should require in each case a cash deposit of $1,000,000 and a bond. The competition would be sheerly illusory, for the only value of the spurs is in making the Manhattan-Bronx Railroad more useful to the traveling public."

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In concluding this opinion, however, the counsel thought it well to qualify it by adding to it as the last paragraph the following statement :

“It is proper for us to add that this, in our opinion, would not apply to any addition or extension long or important enough to be treated as a route in itself or as something more than a relatively unimportant incident to the main line of railroad already contracted for."

It is to be noted that one of the reasons which doubtless had considerable effect in the decision of this matter, namely, the requirement of a cash deposit of 1 million dollars and a bond on all contracts, is no longer present, the Rapid Transit Act having been amended in that regard.

In the second opinion, that in relation to the Van Cortlandt park extension, of 6th August, 1906, printed at page 4293, Vol. 7 of the Minutes, the scope of section 3 is somewhat extended, but the general reasoning of the Fort Lee ferry opinion is reaffirmed. In this opinion the counsel said :

“ The Van Cortlandt Park extension is an elevated line of about 5.300 feet, or almost exactly one mile in length. If constructed it is intended to omit the part of the original line extending from Broadway to Bailey Avenue, about 600 feet long. The net addition to the original line will therefore be about 4,700 feet, less than nine-tenths of a mile of elevated railway. It is proposed by the Chief Engineer to construct three stations on the new extension, namely, at 231st Street. 238th Street and 242nd Street, the latter being located near the entrance to Van ('ortlandt Park. The actual cost of this extension is estimated by the Chief Engineer at $ 737,000, while the estimated cost of the part to be omitted from Broadway to Bailey Avenue is $60,000, not including the cost of the terminal station which is replaced by that at Van Cortlandt Park entrance.

“It will thus be seen that the proposed line constitutes a net addition to the original route of about 4% in length and less than 2% in cost. It was so

designed as to be attached to and used with the original road. It obviously would be of no value as an independent line, for, as laid out by your Board and approved by the other constituted authorities, it could command no tratlic if separated from the main stem.”

Applying this reasoning to the proposed Prospect park extension, we find that the original contract price for Contract No. 2, extending from Park Row, in Manhattan, to Flatbush avenue in Brooklyn, was' $2,000,000 for construction, and an allowance of $1,000,000 for the purchase of terminals, which will be somewhat increased by the four tracking of Fulton street, the cost of which is to be borne equally by the city and the contractor. Instead of an unimportant and relatively inexpensive addition, as in the case of the Fort Lee ferry and Van Cortlandt park extensions, we have here a road, considering it on the basis of its extension, merely to the Willink entrance to the park, about a mile and three-quarters in length, containing four tracks from Atlantic avenue to the Plaza, a large loop in the Plaza and two tracks from the Plaza to the Willink entrance, all of which, I am informed by Mr. Rice, will cost between three and one-half and four millions of dollars. I also wish to call the attention of the Commission to the difficulty, or which I am informed by Mr. Rice, in the matter of grades on this road, if it terminates at the Willink entrance. There is quite a hill beginning at the Williak entrance to the park and rising to the Plaza, and the stopping of this road at the Willink entrance would therefore present the problem of stopping and starting at the foot of a hill. On the basis of the route, as laid out, extending down to l'ark side avenue, the length will be increased to about two and one-half miles, and the cost, due to the large eight track terminal yard on Ocean avenue, increased to between seven and eight millions of dollars.

In addition to the length and cost, it seems to me that it would be possible that even if this road could not be operated by itself, it could be operated in conjunction with the Fourth avenue route in Brooklyn by means of a short conuection at Flatbush avenue and Fourth avenue, and might possibly be operated by the Brooklyn Rapid Transit System by connection with its open cut road at Malbone street and its elevated road at Atlantic avenue.

In my opinion, section 35 was never intended to permit such an important extension to be built under the guise of a modification of the contract, and it seems to me to have more in view a modification, such as that involving the construction of additional tracks

96th street in

the present subway. There is an additional reason for this conclusion in the further consideration that since the execution of Contract No. 2 containing a leasing provision for thirty-five years, the Legislature has amended the Rapid Transit Act in this regard by prohibiting leases for longer than twenty years. We must accept this until changed as the policy of the State, and for that reason it would be improper, by treating this important section as an extension, to place it under the thirty-five year leasing provision of Contract No. 2, whereas by a new contract made in accordance with the law as it now stands it would be impossible to make a lease for more than twenty years, effecting a practical evasion of the provisions inserted in the Rapid Transit Act by the Elsberg bill of 1206.

There are two methods under which this section can be built. It can be built (1) under section 32a of the act at the expense of the company, or (2) under the system of municipal construction.

Section 32a permits the building of extensions of existing roads wholly at the expense of the railroad company at a rental to be fixed by the Commission to be operated by the company for a period not longer than twenty-five years and for renewals not exceeding twenty years in the aggregate, and it is further provided that

“ upon such termination of such franchise, right or authority, the plant and structure together with the appurtenances thereto of the grantee constructed pursuant to such certificate except rolling stock and other movable equipment. shall become the property of the city without further or other compensation to the grantee."

It is doubtful whether the Rapid Transit Subway Construction Company, as the contractor under Contract No. 2, would care to avail itself of the provisions of this section, but such a method is at the disposal of the Commission.

There remains the final method of construction at municipal expense under which the Commission can, subject to the consent of the Board of Estimate and Apportionment, make a contract for construction, construction and equipment or for construction, equipment and operation, but under the present provisions of the act the term of such operation cannot be longer than twenty years. If the money for construction were available, it might be that the Commission could construct the subway at the same time it is constructing the Fourt avenue route, and when completed it could be used either in connection th Contract No. 2 or with the Fourth avenue route, thus securing a measure of competition under which to negotiate with the Rapid Transit Subway Construction Company, or it may be that the Rapid Transit Subway Construction ('ompany would be willing to take this under a contract for construction. equipment and operation for a twenty-year term, trusting to secure a further extension on the expiration of such term.

It seems to me that the Commission might well consider carefully the advisabilitv of recommending an amendment of the law to permit under proper safeguards tie extension of an existing route under the terms of the existing contract.

I am also in receipt of Commissioner Bassett's letter of the 12th inst., adrising me that the Commission wished this department to proceed with the completion of

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