was within the province of the Board, but in view of the opinion of the courts to the contrary, the Board on April 16, 1903, adopted resolutions laying out a new rapid transit route to coincide with the route as changed, which was approved by the municipal authorities. The property owners refusing their consent, application was made to the Appellate Division for its consent in lieu thereof. The Appellate Division appointed three commissioners who held extended hearings and reported in favor of the construction of the amended route, but expressed in their report, the opinion that some provision should be made for the compensation of the injured property owners. This met with the approval of the court, which decided, Presiding Justice Van Brunt dissenting, that the payment of damages must be a condition precedent to the confirmation of the report of the commissioners and the giving of its consent and on December 7, 1905, referred the question of damages to Mr. Alton B. Parker, who on October 31, 1906, filed his report, awarding damages to the amount of $199,630.18 with interest. This report was thereafter confirmed by an order of the Appellate Division, entered on March 2, 1907.

For some time prior to the time of the coufirmation of Judge Parkers's report, negotiations for an adjustment of this matter had been pending. On the approval of this report, the matter was again taken up and a tentative agreement reached with the contractor, by which the city and the contractor were to share the amount of damages. On the presentation of this proposed adjustment to the corporation counsel, his approval was refused, largely on the ground that the Rapid Transit Board was a State and not a city board and that the city was not bound by any proceedings conducted by the board without notice to it and that the city was therefore under no obligation to recognize this award.

The Rapid Transit Board then directed its counsel to make a motion in the Appellate Division to bring in the city and the contractor and those connected with him as parties to the proceeding, which motion was granted after argument, and the city given the right either to move to reopen the references before Judge Parker or to file exceptions to it. The city adopted the latter course and exceptions were duly filed.

The property owners have since renewed their motion to deny the motion to confirm the report of the commissioners, which if granted, would make the route invalid, but this motion has been adjourned from time to time and is now set for January 10, 1908, and in the meantime negotiations are again pending for the adjustment of this matter by the payment of the awards to the property

owners.

Arbitration on Contracts. It is provided by the contracts for the Manhattan-Bronx subway that the contractor shall obey and follow every direction given by the engineer, and that the decision of the engineer shall be binding upon the contractor and the city so far as that the contractor shall proceed or refrain from proceeding and without any delay obey the requirement of the engineer; but the determination of the engineer shall not be conclusive upon either the contractor or the city as to the reasonable value of any work or materials additionally required or omitted, or as to the question whether the contractor is entitled to additional payment for anything additionally required by the engineer, or as to the question whether the city is entitled to deduction from the amount payable to the contractor according to the terms of the contract. In any such case the engineer is to make his determination in writing and in duplicate, one to be filed with the Rapid Transit Board (now this Commission) and one delivered to the contractor. This determination is binding and conclusive upon the city unless the Commission shall appeal within ten days and upon the contractor unless he shall appeal within ten days. In the notice of appeal an arbitrator must be named on the part of the appellant, and if the party against whom an appeal is taken shall appoint an arbitrator, the Commission and the contractor shall select a disinterested person to act as third arbitrator. He shall be chairman of the board of arbitration.

Under this clause of the contract the engineer of the Commission, on November 30, 1907, made his determination that the balance due upon the contract and upon extra work, after deduction on account of omissions, was, subject to certification, November 30th, $338,216.97. The city, acting by the Public Service Commission, appealed from so much of this determination as decided that there was due the contractor for emergency ven

tilation work during the year 1905, $29,141.73, on the ground that the same had been paid, leaving the total balance $309,075.24, instead of $338,216.97, and appointed Mr. Frank Brainard as arbitrator on its part.

The contractor appealed from the determination of the engineer claiming an award of $6,225,793.52 as the reasonable value of the work done and materials furnished, not allowed by the engineer, and appointed Ex-Justice Morgan J. O'Brien as arbitrator on his part. Thereafter, on December 31, 1907, the Commission and the contractor selected Mr. Charles E. Rushmore to act as third arbitrator.

Sale of Electric Current.-An action was begun by the Rapid Transit Board to restrain the Interborough Rapid Transit Company and the New York City Interborough Railway Company, the former from furnishing and delivering, the latter from receiving and using, electrical current through certain ducts built in connection with the subway, and for an accounting by defendants for the reasonable value of such current previously furnished and used. A decision was filed May 24, 1907, in favor of the board. An order has been entered continuing the action in the name of the city by the Public Service Commission, and an interlocutory judgment has been entered in favor of the plaintiff. The defendants have appealed therefrom to the Appellate Division, but the appeal has not yet been argued.

Weighing Machine Case. This is an action brought by the Rapid Transit Board to restrain the Interborough Rapid Transit Company from maintaining in any station stands for the sale of merchandise, vending machines and weighing machines, etc. It was tried in December, 1906, and judgment was entered May 3, 1907, in favor of the defendants. An appeal was taken by the Rapid Transit Board, and an order has been entered continuing this action in the name of the city and the Public Service Commission. Under the direction of the Commission the appeal is being prosecuted, but has not yet been reached for argument.

Potter Case. This action by an abutting property owner to restrain the Interborough Rapid Transit Company and the Rapid Transit Board from removing a wall at the Wall street station of

the Brooklyn-Manhattan subway, involves questions as to the right to use the street for railroad purposes and of the property owner to have and use vault space therein. The case was tried in December, 1906, and a decision filed in favor of the defendants in June, 1907. No appeal has yet been taken.

III.

IMPROVEMENTS IN TRANSIT FACILITIES.

As affecting transit facilities, the creation of the Public Service Commission had a two-fold object - the building of rapid transit lines, and the improvement of the service of existing surface, subway and elevated roads. The first has been considered in the pages just preceding; the second will be treated here.

The Public Service Commissions Law imposes upon every common carrier the duty of providing safe and adequate facilities for the transportation of persons and commodities. Upon every such company, there falls in first instance the obligation to arrange schedules, routes and headways; to hire, train and superintend employees; to pay them proper salaries and to arrange reasonable hours of labor; to construct, equip and maintain a suitable roadway, rolling stock, power stations, car barns, repair shops, depots, etc.; in fact to do everything connected with the operation of the road and to do it in such a way that the service shall be safe, adequate, reasonable and proper. All charges for transportation must be just and reasonable, and no discrimination shall be made against any individual or individuals of a class.

It is not the function of the Public Service Commission to order any of these things to be done until the company has been found to be delinquent, and the power of the Commission begins when the company omits to fulfill its obligations. The procedure in any given instance, therefore, is of a two-fold nature. The default of the company must be established, and the steps which it must take must be decided upon. Then, if the company has been operating too few cars, or is not maintaining its equipment, or is charging too high rates, or in any other way is at fault, the Commission has the power, and is burdened with the duty, to

direct what shall or shall not be done. But in every instance, the obligations to provide proper service, to charge proper rates, etc., is originally upon the private company.

It should not be inferred that the Commission may initiate proceedings to cure a defect only upon complaint. It may investigate and issue an order upon complaint or upon its own motion. A Transportation Bureau composed of engineers and inspectors has been organized for the express purpose of obtaining accurate information as to the operation of all companies. Service inspections are constantly being made not only to determine whether new orders should be issued, but also to ascertain whether the orders are being obeyed.

The usual course followed in all cases where there is apparently sufficient evidence to justify an order has been as follows:

First.—An order for a hearing is adopted by the Commission upon the recommendation of a Commissioner who has gone over the evidence collected by the Transportation Bureau or presented by a complainant and who has concluded that the matter should be tried out. The order fixes a date for the hearing, usually about two weeks in advance and specifies what is proposed to be required, so as to allow the company sufficient time after the service of the notice of the order, to prepare such evidence as it may wish to present.

Second.-- One Commissioner is named, usually the one who went over the evidence originally, to preside at the hearing and take evidence.

Third. The hearing is held upon the date fixed at which time some one from the office of the counsel to the Commission appears and generally a legal representative of the company. All evidence germane to the subject under investigation, from whatever source, is admissible, and the hearing may be adjourned from day to day as necessary.

Fourth. When the evidence is all in, the presiding Commissioner reports of his findings to the Commission with a proposed order for adoption, which specifies what shall be done or omitted to be done by the company. If the evidence shows that the requirements in the order for the hearing should be modified, such