station of the subway, constructed under the Brooklyn-Manhattan contract, known as Contract No. 2. The contractor, the Rapid Transit Subway Construction Company, and the assignee of the lease portion of that contract, namely, the Interborough Rapid Transit Company, are also parties.

Your inquiry is as to what procedure should be followed in applications for windows of this character, and includes the question whether it is necessary for the Interborough Rapid Transit Company first to consent before the consent of the Commission is given,

I have no doubt that before a show window or any window of the character desired by this applicant can be constructed in the wall of the subway structure the consent of the lessee, in this case the Interborough Rapid Transit Company, is essential. I think, also, inasmuch as the Brooklyn-Manhattan contract is not yet entirely completed, that the consent of the contractor for construction, the Rapid Transit Subway Construction Company, would also be essential.

As to procedure, I suggest that the consent of these corporations should be required prior to an application being made to this Commission for its consent and approval, though it would be practicable, if the terms of the application were satisfactory, to pass a resolution approving the application and stating specifically that the same should be subject to the consent of the Interborough Rapid Transit Company and the Rapid Transit Subway Construction Company, which in each case should be acknowledged and filed with the Commission.

I find that in the case of previous applications, after investigation by the standing committee on plans and contracts of the late Board, it was suggested that applicants should pay a uniform rate of one dollar per square foot per month for show window space, the owner of the window to pay all expenses of installation and the work to be done in accordance with plans approved by the Chief Engineer of the Board; that the terms should be subject to renewal annually, and the privilege subject to revocation by the Board on sixty days' notice in writing, and that the owners of the show windows save the city harmless from any and all injury which might be sustained to said show windows or premises in the rear of the same, or in any building erected thereon, by reason of anything of any nature whatsoever happening to said premises by reason of such show windows fronting on the subway. The consent of the Interborough Rapid Transit Company was also required, inasmuch as that company had called the attention of the Board to the provision of the Brooklyn-Manhattan contract, page 169, denying in general advertising privileges to that company, and suggesting that it was not consistent to grant such privileges to exceptional property owners.

I am now advised by the Chief Engineer that no show window privileges of this description have ever been granted, though in cases where property owners conveyed property or rights to the city some such privileges have been obtained. Yours very truly.

(Signed)

ABEL E. BLACKMAR,
Counsel to the Commission.”

Bond Substitution of, by Rapid Transit Subway Construction Company in Place of $1,000,000 Cash Deposited Under Contract No. 2, Not Allowable Rapid Transit Act, Section 38, L. 1906, Ch. 472, Section 14.

OPINION OF COUNSEL.

Public Service Commission for the First District:

October 31, 1907.

GENTLEMEN. You have referred to me the request of the Subway Construction Company to substitute a bond in the place of $1,000,000 cash which was deposited by the contractor under Contract No. 2, for the construction of the so-called Brooklyn-Manhattan subway, as security for the construction agreement, with the request that I examine the same and advise as to procedure.

It seems to me that there was a serious question as to the legality of such proposed action I have therefore held the matter under advisement until the present time.

When Contract No. 2 was made, the law required a deposit of $1,000,000 in cash or securities as security for construction, but permitted the continuing security for rentals to become due and generally for the performance of the terms of the contract, to be made either in the form of a continuing bond or of a deposit of cash or securities.

A deposit of $1,000,000 in cash having been made under Contract No. 2, as security for construction, and also $1,000,000 more in securities as a continuing security, the contractor requested permission to file a continuing bond and to have the $1,000,000 deposited as continuing security released to him. A supplemental contract was thereupon made between the Board and the contractor altering the terms of the original contract so as to require a continuing bond with sureties in

the place of the deposit of securities, and said $1,000,000 in securities which had been lodged for a continuing deposit were returned to the contractor.

The contractor now requests that the $1,000,000 lodged as security for construction be returned upon a bond being given in its place, and the question is whether this may legally be done.

Assuming that this might legally be done as to a continuing security, it does not follow that the same power exists as to the security given for construction. The law in existence at the time the contract was made required a deposit of cash or securities to secure construction, but permitted either a deposit of cash or securities or a bond to be given for the continuing security.

Section 38 of the Rapid Transit Law authorized the Board and the contractor to agree to a change in the provisions of the contract. It might therefore, be held to follow that anything which could legally have been inserted in the original contract could be provided for in a supplemental one, and that in this manner a continuing bond could be substituted for the cash deposit and the cash returned. As, however, the law did not authorize a bond to be taken to secure construction in the first instance, it would seem to follow that unless there has been some change in the law this result cannot be accomplished by a supplemental contract. The counsel for the contractor argue that under the Elsberg Bill of 1906, the Commission has the discretion to accept a bond instead of a cash deposit as security for construction, and that therefore, under section 38, it may make a supplemental contract or change in the original contract substituting a bond for the cash, and providing for the return of the cash. If the Elsberg Bill can be held to repeal or change the original law as applicable to contracts which had been executed before the Elsberg Law was passed, this conclusion might possibly follow, but such is not the case.

Section 14 of the Elsberg Law is as follows:

"Nothing in this act contained shall repeal, modify or alter any provision of the act hereby amended in respect of any railway or railways constructed, constructing or contracted for thereunder when this act takes effect; but the act hereby amended shall be and continue in full force and effect in respect of such railway or railways so constructed, constructing or contracted for, as if this act had not been passed." This provision of the Elsberg Law, which is not printed in the Rapid Transit Act, seems to me to be conclusive upon this subject.

My opinion, therefore, is that no change in the contract can be made by agreement, under section 38, which shall contain a provision which could not legally have been inserted in the original contract under the law then in existence. As the law required that the contract should provide for a deposit of cash or securities to secure the agreement for construction, and it did not authorize the taking of a bond for that purpose, it is not in my opinion competent to make a supplemental contract at this time which shall authorize the substitution of a bond for the cash deposit. Yours very truly,

Bond Substitution of Bond of United States Fidelity and Guaranty Company for One of Lawyers' Surety Company, as Surety for American Bridge Company, as Sub-Contractor Under Contract No. 1.

OPINIONS OF COUNSEL.

September 4, 1907. TRAVIS H. WHITNEY, Esq., Secretary, Public Service Commission for the First District:

DEAR SIR.I am in receipt of your letter of August 16, transmitting a request of the Lawyers' Surety Company and correspondence respecting a bond of that company as surety in $200,000, to John B. McDonald, for the American Bridge Company, a sub-contractor under McDonald, for which bond it is proposed to substitute a similar bond of the United States Fidelity and Guaranty Company, stating that it is to have the same force and effect as though executed on May 29, 1900, the date of the bond first mentioned. The bond of the Lawyers' Surety Company was assigned to the city of New York under the provisions of the McDonald contract, as modified, and is on file with the Comptroller.

The bond proposed to be substituted was approved as to form by Mr. Rives, Counsel to the late Board of Rapid Transit Railroad Commissioners. A resolution was passed by the late Board on April 11, 1907, approving of such substitution of bonds, subject to the consent of John B. McDonald, and the Rapid Transit Subway Construction Company.

The Lawyers' Surety Company's request now is for leave to withdraw its bond first given in view of the substitution of the United States Fidelity and Guaranty Company.

I am informed by you that after an examination of your files made at my request, you are unable to find the consents described in the resolution on file in your office.

I think that the consents to substitution mentioned in the resolution of the late Board should be given by an instrument executed and acknowledged and filed with this Commission, and that such instrument should also specifically assign to the city of New York the bond so substituted, the same to stand in place of the one previously given by the Lawyers' Surety Company and so assigned.

I do not think, however, the bond of the Lawyers' Surety Company can properly be withdrawn even when such consents to substitution are given and filed. Yours very truly,

(Signed)

ABEL E. BLACKMAR,
Counsel to the Commission."

NEW YORK, October 7, 1907.

TRAVIS H. WHITNEY, Esq., Secretary, Public Service Commission for the First District:

DEAR SIR.I am in receipt of your letter of October 4, with which you sent me a letter of the Lawyers' Surety Company, which transmits consents of John B. McDonald and the Rapid Transit Subway Construction Company to a substitution of the United States Fidelity and Guaranty Company bond in place of one of the Lawyers Surety Company, in the sum of two hundred thousand dollars. The last named bond was one given originally for four hundred and fifty thousand dollars as surety for the American Bridge Company to John B. McDonald, the American Bridge Company being a subcontractor under Mr. McDonald in the work of Con tract No. 1.

The bond for four hundred and fifty thousand dollars of the Lawyers' Surety Company was, with the consent of the late Board of Rapid Transit Railroad Commissioners, in September, 1905, reduced to the sum of two hundred thousand dollars. It is now proposed to substitute for the Lawyers' Surety Company as surety, the United States Fidelity and Guaranty Company, who are to give a bond in the sum of two hundred thousand dollars.

a

The bond proposed to be substituted was approved as to form by Mr. Rives, Counsel to the late Board of Rapid Transit Railroad Commissioners, and resolution was passed by the Board on April 11, 1907, approving of such substitution of bonds, subject to the consents of John B. McDonald, and the Rapid Transit Subway Construction Company.

I wrote you previously in respect to this matter under date of September 4, 1907, making a suggestion that the consents should be given by an instrument executed and acknowledged and filed with the Commission, and that there should be an assignment of the new bond to the city of New York, so that the same might stand in place of the one previously given by the Lawyers' Surety Company, which had been assigned to the city.

The consents which you now transmit, and the assignment of John B. McDonald to the city, which is also transmitted by you therewith, are apparently forwarded to the Commission in pursuance of the suggestion in my letter.

I find that the consents are in proper form and duly acknowledged, and that the assignment by John B. McDonald of the said bond proposed to be substituted to the city of New York, is in proper form and in accordance with the practice followed by the former Board in such matters, as appear at page 986 of the minutes, Vol. 2.

It will be necessary that this assignment shall be also executed by the Public Service Commission for the First District.

These papers, that is to say, the original consents, the original assignment and the bond of the United States Fidelity and Guaranty Company, should remain on file together, with the bond of the Lawyers' Surety Company, which, I believe to be already in your files or in those of the auditing department of the Commission. The assignment of these subcontractors' bonds by Mr. McDonald as contractor under Contract No. 1, as additional security to the city, is in pursuance of a stipulation in the modification of the original Contract No. 1, which appears on page 235 of the contract.

Violation of Eight Hour Law by Contractor for Subway Construction, Labor Law, Sections 3, 13.

OPINION OF COUNSEL.

September 27, 1907. TRAVIS H. WHITNEY, Esq., Secretary, Public Service Commission for the First District:

DEAR SIR. Referring to the letter of Mr. Norton, acting secretary, of the 20th inst., inclosing copy of letter from Mr. Rice, chief engineer, calling the attention of the Commission to the fact that the Bradley Contracting Company, the contractor for section 9-0-5 of the Brooklyn loop (Delancey street, between Bowery and Norfolk), has not complied with the contract in respect to requiring laborers to work more than eight hours a day, despite the fact that the chief engineer has twice

called his attention to this violation, I desire to advise you that the contract under which the Bradley Contracting Company is constructing this section of the Brooklyn loop line provides :

The contractor agrees to comply with the provisions of the Labor Law, including section 3 thereof, as re-enacted by chapter 506 of the Laws of 1906. The contractor further agrees and stipulates that no laborer, workman or mechanic in the employ of the contractor, sub-contractor or other person doing or contracting to do the whole or a part of the work contemplated by this contract, shall be permitted or required to work more than eight hours in one calendar day, except in cases of extraordinary emergency caused by fire, flood or danger to life or property; and further that the wages to be paid for a legal day's work as hereinbefore defined to all classes of such laborers, workmen or mechanics upon the work contemplated by this contract, or upon any material to be used upon or in connection therewith, shall not be less than the prevailing rate for a day's work in the same trade or occupation in the borough of Manhattan, where the work hereby contemplated, about or in connection with such labor, is performed, as in its final or completed form to be situated, erected or used, and that each such laborer, workman or mechanic employed by the contractor or by any subcontractor or other person on, about or upon the work contemplated by this contract, shall receive such wages herein provided for. This contract shall be void and of no effect unless the contractor shall comply with the provisions of this paragraph. In obedience to the requirements of section 13 of the Labor Law, it is further provided that if the provisions of the said section are not complied with this contract shall be void."

This provision of the contract is inserted in pursuance to the express direction of the Legislature, and although the earlier statute of 1897 was declared unconstitutional it has been re-enacted by the Legislature upon the adoption of a constitutional amendment authorizing legislation of this character. The amendment to the Constitution, Article XII, section 1. adopted at the general election of 1905, which went into effect January 1, 1906, provides:

"Section 1. It shall be the duty of the Legislature to provide for the organization of cities and incorporated villages and to restrict their power of taxation, assessment, borrowing money, contracting debts and loaning their credit, so as to prevent abuses in assessments and contracting debt by such municipal corporations; and the Legislature may regulate and fix the wages or salaries, the hours of work or labor, and make provision for the protection, welfare and safety of persons employed by the State or by any county, city, town, village or other civil division of the State, of by any contractor, or sub-contractor performing work, labor or services for the State, or for any county, city, town, village or other civil division thereof."

Pursuant to this provision the Legislature, by the provisions of chapter 506 of the Laws of 1906, re-enacted section 3 of chapter 415 of the Laws of 1897, which had been declared unconstitutional prior to the adoption of the amendment to the Constitution.

"Section 3. Hours to constitute a day's work. Eight hours shall constitute a legal day's work for all classes of employees in this State, except those engaged in farm and domestic service unless otherwise provided by law. This section does not prevent an agreement for overwork at an increased compensation except upon work by or for the State or a municipal corporation, or by contracting or sub-contractors therewith. Each contract to which the State or a municipal corporation is a party which may involve the employment of laborers, workmen or mechanics shall contain a stipulation that no laborer, workmen or mechanic in the employ of the contractor, sub-contractor or other person doing or contracting to do the whole or a part of the work contemplated by the contract shall be permitted or required to work more than eight hours in any one calendar day except in cases of extraordinary emergency caused by fire, flood or danger to life or property. The wages to be paid for a legal day's work as hereinbefore defined to all classes of such laborers, workmen or mechanics upon all such public works, or upon any materials to be used upon or in connection therewith shali. not be less than the prevailing rate for day's work in the same trade or occupation in the locality within the State where such public work on, about or in connection with which such labor is performed in its final or completed form is to be situated, erected or used. Each such contract hereafter made shall contain a stipulation that each such laborer, workman or mechanic employed by said contractor, sub-contractor or other person, on, about or upon such public work, shall receive such wages herein provided for. Each contract for such public work hereafter made shall contain a provision that the same shall be void and of no effect unless the person or corporation making or performing the same shall comply with the provisions of this section; and no such person or corporation shall be entitled to receive any sum nor shall any officer, agent or employee of the State or of a municipal corporation pay the same or authorize its payments from the funds under his charge or control to any such person or corporation for work done under any contract, which in its form or manner of performance violates the provisions of this section, but nothing in this section shall be construed to apply to persons regularly employed in State institutions, or to engineers, electricians and elevator men in the department of public buildings during the annual session of the Legislature, nor to the construction, maintenance and repair of highways outside the limits of cities and villages.

The Supreme Court of the United States in 206 U. S., considered the constitutionality of such legislation and upheld the constitutionality of an Act of Congress providing that eight hours should constitute a day's work under Federal contracts. This would seem to remove all doubt as to the constitutionality of this legislation.

I should advise that peremptory notice be given the Bradley Contracting Company to obey the requirements of its contract and that in case of failure to remedy this violation within the time specified in the notice, the Commission may declare this contract to be void and request the comptroller to make no payments therefor. Yours very truly, (Signed) ABEL E. BLACKMAR,

Counsel to the Commission. The Secretary was directed to send peremptory notice to the contractor, as suggested by the Counsel.

Lease of Permanent Offices by the Commission not to be Submitted to the Comissioners of the Sinking Fund - Designation of Newspapers for Rapid Transit Advertisements — City Charter, Sections 149, 217; Public Service Commissions Law, Section 10; Rapid Transit Act, Sections 36, 37.

OPINION OF COUNSEL.

NEW YORK, July 31, 1907. TRAVIS H. WHITNEY, Esq., Secretary, Public Service Commission for the First District:

DEAR SIR.I am in receipt of your letter of July 29, advising me of a resolution of the Commission, referring to me the question as to whether the lease of permanent offices by the Commission should be submitted to the Sinking Fund Commission for approval. and also the question of the designation of newspapers for Rapid Transit advertisements.

Mr. Semple, of this office, in a conversation yesterday with Deputy Comptroller Phillips and Mr. Brown, of the finance department, real estate bureau, was informed by them that in their opinion leases by the Public Service Commission for the First District should be submitted for approval to the commissioners of the sinking fund, because the commissioners of the sinking fund are "Trustees of Public Buildings" within the meaning of section 10 of the Public Service Commissions Law, and also because under section 217 of the city charter, applications for leases for the purposes of the city of New York or any of the counties contained within its territorial limits, must be presented to and passed upon by the commissioners of the sinking fund; and by section 149 of the charter, when such leases are authorized by the board of sinking fund commissioners, they must be entered into by the Comptroller on behalf of the city.

I am of the opinion, however, that the reference in section 10 of the Public Service Commissions Law to trustees of public buildings applies only to those officials who are defined by the Public Buildings Law as trustees of public buildings, viz., the Governor, Lieutenant-Governor and Speaker of the Assembly, who by that act are entrusted with the control of specified public buildings in Albany, and that the words "Trustees of Public Buildings" do not include the commissioners of the sinking fund of the city of New York.

The provisions of section 217 of the charter are with respect to leases of real estate for the purnoses of the city of New York or in the counties contained within its territorial limits. This section was taken from the Consolidation Act of 1882. chapter 410, passed many years prior to the enactment of the Rapid Transit Act, and in my opinion it is limited in its operation to the purposes mentioned. The lease of offices for the Public Service Commission is not for the purposes of the eity of New York or any of the counties contained within its territorial limits, but for the purposes of a State commission. It is significant also that the Board of Rapid Transit Railroad Commissioners did not submit leases to the commissioners of the sinking furd for approval, but made the same directly.

By section 149 of the charter, leases when approved by the Commissioners of the Sinking Fund are required to be entered into by the Comptroller on behalf of the city; but there is a provision later on in this section to the effect that nothing therein contained shall affect the Board of Rapid Transit Railroad Commissioners. I am therefore of the opinion that the lease by the Public Service Commission for the First District of its permanent offices need not be submitted for approval to the Commissioners of the Sinking Fund.

Respecting the further question as to the designation of newspapers for Ranid Transit advertisements, the reading of the Rapid Transit Act seems plain. The Mayor designates the newspapers in which hearings on the form of contract are advertised, and the Public Service Commission, as the successor to the Board of Rapid Transit Railroad Commissioners, designates the newspapers in which the contracts are advertised for letting. (See sections 36 and 37 of the Rapid Transit

Act.)