Section one provides that "all percentages which shall heretofore and prior to the passage of this act have been agreed to be paid by any street surface railroad company to the city treasurer in consideration of the consent of the local authorities to use the streets, shall or may be revised, corrected and reduced by the commissioners of the sinking fund or other officers authorized by law to receive such percentages, in case such company shall submit its books of account and proofs as to cost of construction and the expense of operating its railway to such commissioners or other officers, and it shall be made to appear by such company to said commissioners or such other officers that in and by the actual operation of such railway such percentage is unjust, unreasonable and impracticable of payment, such commissioners or other officers shall have the power and are hereby authorized and required to revise, correct and reduce such percentage to a fair, equitable and commensurate amount, and such revision, correction and reduction when submitted to and confirmed by the General Term of the Supreme Court shall supersede and take the place of the percentage at which such sale was made, and shall be the rate of compensation to be paid."

It will be thus seen that provision is made by the bill for reducing the percentages to be paid by street railroads heretofore (not hereafter) constructed when such railroads can show to the proper city authorities that the percentage bid is an unjust burden upon them.

Objection is raised to this bill by some upon the ground that the percentage bid and agreed upon by the corporation becomes part of a contract with the city which it entered into deliberately with its eyes open and to which it should be bound to conform as any other business man or company is bound to conform to the terms of a contract into which he enters. It is also urged that if the franchise turns out extremely profitable the city derives no benefit from such profit over and above the amount that it agreed should be paid into its treasury.

On the other hand, however, advocates of the measure hold that the rigid conditions of a contract between private individuals or companies should not be imposed by government upon its citizens when it can be shown that the citizen or corporation is unduly burdened and, perhaps, broken by the terms of such contract.

In view of the checks provided by the bill and of the obligation thrown around the corporation to demonstrate that the burdens imposed by the bid are intolerable, the Board is of the opinion that on the whole the first section of the act could without detriment to public interests, and very likely with justice to private interests, receive Executive approval.

To the second section, however, of the bill there are grave objections. This section provides that "No consent heretofore and prior to the passage of this act given by the local authorities of any incorporated city or village to and for the construction and operation of any street surface railroad within the State shall cease and determine or be deemed to have heretofore ceased and determined provided that within three years from the date of the passage of this act the consents of the owners of one-half in value of the property bounded upon that portion of any street, avenue or highway upon which such railroad is proposed to be constructed and operated, shall be obtained, or the

determination of the commissioners appointed by the General Term of the Supreme Court."

It will thus be seen that the consents of local authorities, long since lapsed by reason of the failure of the corporation to secure the consent of the abutting property holders, or commission in lieu thereof, are revived by this section for a length of time extending three years beyond its passage.

The Board deems that this is inexpedient in the extreme.

Section four of the General Street Railroad Act, chapter 252, Laws of 1884, provides that any consent given by the local authorities shall cease and determine at the expiration of one year thereafter, unless prior to the expiration of such period the company obtaining such consent shall have filed the consent of the requisite amount in value of property owners, or the determination of commissioners confirmed by the court.

Section two of chapter 642 of the Laws of 1886, known as the amended Cantor Act, provides that all consents given by the local authorities shall cease and determine at the expiration of two years thereafter, unless prior to the expiration of such period the consent of the owners of a sufficient proportion of the property, or of a commission appointed by the court, shall have been obtained.

For the above reasons the Board deems that, should this bill become a law, it might be attended with detriment to public interests.

By the Board.

WILLIAM C. HUDSON,

Secretary.

XVII.

REPORT OF THE BOARD ON THE BILL ENTITLED “AN ACT TO AMEND CHAPTER 252, LAWS OF 1884, ENTITLED 'AN ACT TO PROVIDE FOR THE CONSTRUCTION, EXTENSION, MAINTENANCE AND OPERATION OF STREET SURFACE RAILROADS AND BRANCHES THEREOF IN CITIES, TOWNS AND VILLAGES,'

REFERRED TO IT BY THE GOVERNOR.

To the Governor of the State of New York:

ALBANY, May 22, 1889.

The Board herewith respectfully returns Senate bill (printed No. 590, Executive No. 190) entitled "An act to amend chapter 252 of the Laws of 1884, entitled 'An act to provide for the construction, extension, maintenance and operation of street surface railroads and branches thereof in cities, towns and villages.'

The bill under consideration is an amendment to section 12 of the General Street Railroad Act. That section at present provides that, "Any street surface railway company may in any case operate any portion of its road by animal or horse power, or by any power other than locomotive steam power which may be consented to by the local authorities and by a majority of the property owners obtained in accordance with sections three and four of this act."

The bill under consideration amends this section by substituting the State Board of Railroad Commissioners for the local authorities, and by further providing that "it shall be lawful for any such rail

road company to make any changes in the construction of its road or road-bed at any time rendered necessary by a change in its motive power."

It appears that the Third Avenue Railroad Company of the city of New York applied to the commissioner of public works in 1887 for permission to excavate the streets, with a view of changing its motive power from horse to cable. The permission was denied, and an application for a writ of mandamus compelling him to grant permission was finally carried to the Court of Appeals and decided against the company. The question of the right of the company to substitute cable for horse under section 12, if permission had been granted by the local authorities, does not appear to have been touched on by the court.

The Board knows of no good reason why the Board of Railroad Commissioners should be substituted for the local authorities by general legislative enactment, simply because the local authorities in a particular instance have declined to grant the permission requested. Were this principle of legislation followed there would be a shifting of permissive powers from one set of officers to another every time that the first set of officers declined to grant a permission rendered discretionary with them.

It can fairly be presumed that the local authorities having control of the streets in cities would be quite as good judges of the expediency of a change in motive power as the State Board of Railroad Commissioners.

By the Board.

WILLIAM C. HUDSON,

Secretary.

XVIII.

REPORT OF THE BOARD ON THE BILL ENTITLED "AN ACT TO AMEND CHAPTER 305, LAWS OF 1885, ENTITLED AN ACT TO AUTHORIZE STREET SURFACE RAILROAD COMPANIES ΤΟ CONTRACT WITH EACH OTHER, AND PROVIDING FOR A PROPER SYSTEM OF TRANSFER OF PASSENGERS,' AND TO PERMIT PARTIAL ABANDONMENT OF ROUTE BY SUCH COMPANIES," REFERRED TO IT BY THE GOVERNOR.

To the Governor of the State of New York:

ALBANY, May 22, 1889.

The Board herewith respectfully returns Senate bill (printed No. 581, Executive No. 191) entitled "An act to amend chapter 305 of the Laws of 1885, entitled 'An act authorizing street surface railroad companies to contract with each other, and providing for a proper system of transfer of passengers,' and to permit partial abandonment of route by such railroad companies."

The amendment consists in adding to section three a provision that "Any company being the lessee or lessor or both, or having the right to use the route or portion of the route of another company pursuant to a lease or agreement entered into as above provided, may declare relinquished and abandoned any portion of its own route which it may deem no longer necessary for the successful operation

of its road and convenience of the public in consequence of such lease or contract." Such declaration of abandonment is to be valid when adopted by the board of directors and two-thirds of the stockholders at a meeting called for the purpose, and with the approval of the State Board of Railroad Commissioners.

The Board is not aware of what particular case of abandonment this bill is intended to provide for. It can be easily conceived, however, that cases may arise where, in consequence of the lease of one railroad by another, a portion of the line so leased would become unnecessary to operate, and it would seem that some provision should be made for legally abandoning such portion.

The measures provided in the bill requiring the approval of the State Board of Railroad Commissioners it may fairly be presumed would prevent such abandonment being permitted where it would work a hardship or detriment to public interests, although the Board is of the opinion that were this power vested in the local authorities it would perhaps be better than to be vested in the State Board of Railroad Commissioners.

The Court of Appeals, in the case of People v. Rome, Watertown & Ogdensburgh Railroad Company (103 N. Y., p. 96), have decided that where a steam railroad company by consolidation becomes the owner of two lines of road between the same points, and can substantially accommodate the people of the State by operating one of them and can abandon the other without serious detriment to any considerable number of people, it can not be compelled by mandamus to operate both where the portion of the line that may thus be abandoned entails great expense without any return.

The application of this principle to street railroads would apparently justify an abandonment under certain conditions without the approval of any board, commission or local authority. If such be the law the enactment of this measure would be in the line of greater restrictions with reference to such abandonment.

The Board deems that the measure can receive Executive approval with benefit to public interests.

By the Board.

WILLIAM C. HUDSON,

Secretary.

XIX.

REPORT OF THE BOARD ON THE BILL ENTITLED "AN ACT TO INCORPORATE THE NEW YORK AND BROOKLYN TUNNEL COMPANY," REFERRED TO IT BY THE GOVERNOR.

To the Governor of the State of New York:

ALBANY, May 22, 1889.

The Board here with respectfully returns Senate bill (printed No. 356, Executive No. 245) entitled "An act to incorporate the New York and Brooklyn Tunnel Company."

This bill was referred by yourself to the Board, and a report submitted May the eighth calling your attention to the objections thereto,

and respectfully recommending that it should receive Executive disapproval.

Since then the bill has been recalled and amended to the extent of striking out the words in section 10 "by rail or otherwise." So that the section now reads: "The said corporation shall be and is hereby authorized to transport passengers and freight through the said tunnel, and to charge and collect rates of toll and fare," etc.

The Board presumes that these words "by rail or otherwise," were stricken out in order to meet the objection that the bill was in contravention of section 18 of article three of the Constitution of the State, which prohibits the Legislature from passing a private or local bill granting to any corporation, association or individual the right to lay down railroad tracks.

It would appear, however, from the brief of the advocates of the bill, that such tracks were but an incident to the tunnel and that they proposed to lay them down anyhow.

The Board deems that the several serious objections which it found to the bill still exist, and it can only repeat its language in the report of May 8th, and respectfully recommend that the bill receive Executive disapproval.

By the Board.

WILLIAM C. HUDSON,

Secretary.

XX.

REPORT OF THE BOARD ON THE BILL ENTITLED "AN ACT TO REGULATE THE LIGHTING OF STEAM PASSENGER CARS," REFERRED TO IT BY THE GOVERNOR.

To the Governor of the State of New York:

ALBANY, May 22, 1889.

The Board herewith respectfully returns Assembly bill (printed No. 1210, executive No. 296) entitled "An act to regulate the lighting of steam passenger cars."

Section one provides that "it shall not be lawful for any steam railway company doing business in this State after the first day of October, 1890, to light its passenger cars with kerosene or other inflammable or explosive oils. Provided that the Board of Railroad Commissioners may, upon application and for cause shown, exempt roads of less than fifty miles in length from the requirements of this act."

* * *

In its Fifth Annual Report (that for 1887) on page ten of the appendix will be found the following report of the Board in reference to the matter of lighting cars, in response to a resolution of the Legislature passed on February the 7th, 1887.

"LIGHTING.

"There were but two methods of improved lighting suggested at the hearing, that was by electricity and stored gas.

The method by electricity appears to be so expensive as to give but little encouragement to railroads to continue it.

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