By the Montgomerie Charter of 1730 full power is granted to the Mayor, Alder. men and Commonalty of the City of New York to control all ferries that may be established between Manhattan Island and Nassau Island (now Long Island) and It is provided that no one without the consent, grant or license of said city shall have any control over the ferries or possess any power in regard to them. Montgomerie Charter, §§ 15, 37. These powers over ferries have been continued and strengthened in subsequent Section 71 of the present charter is as follows: "The rights of the city in and to its water front, ferries, wharf property, land under water, public landings, wharves, docks, streets, avenues, parks, and all other public places are hereby declared to be inalienable." Section 826 of this charter provides that the board of docks shall have power to lease the franchise of any ferry or ferries belonging to the city and also to lease along with such franchise the wharf property, including wharves, piers, bulkheads and structures thereon and slips, docks, and water fronts adjacent thereto, used or required for the purposes thereof; all leases to be subject to the approval of the commissioners of the sinking fund. We will now inquire whether the company has acquired from the city of New York any franchise for the operation of the Wall Street Annex Ferry. Under date of September 14, 1908, Mr. Delos F. Wilcox, Chief of the Bureau of Franchises of the Commission made a report concerning this matter which indicates that the contention of the company is correct and that the company has no franchise for the operation of this line. Mr. Wilcox states that he is informed by the Dock Department of the City of New York that the company has no arrangement with the city whatever in regard to this service. He says: "The Long Island Railroad Co. is enabled to land its passengers at Pier 8 through an arrangement with the lessee of this pier, an arrangement similar in kind to that which any excursion boat might make. The old Pine Street Ferry franchise expired January. 1, 1906, and was not renewed. The present annex service was substituted for the Pine Street Ferry Service." The company having had no franchise from the City of New York for the operation of this line, the abandonment of the line could not constitute a violation of the provisions of any city franchise. Unless, therefore, the abandoninent constituted a violation of the charter or of the laws above mentioned, the Commission is without power to order the restoration of the line. The charter itself has not been violated, as it contains no provision with reference to the ferry mentioned. Has there been a violation of section 5 of the Supplemental Act of 1859, or of section 54 of the Railroad Law? In my opinion there has been none. In my opinion these statutes are permissive only, and not mandatory. A supplement to a charter or a general law, unless containing mandatory language, generally amounts to a mere license. There is a clear distinction between statutes which are mandatory and those which are permissive only. Elliott on Railroads, Vol. I, § 69. Northern Pacific Railroad v. Dustin, 142 U. S. 492, 499. If either of the statutes be regarded as mandatory, it seems to me the company is complying therewith as long as it operates a ferry line between Long Island City and Manhattan. It still operates the Thirty-Fourth Street ferry line between these points. However, in my opinion these statutes amount to a license to the company to operate ferries or not, at its option, provided it can obtain a franchise from the proper municipal authorities permitting it to do so. As has been seen, no municipal franchise had been procured. The company, therefore, in discontinuing the line mentioned was not guilty of any violation of these statutes, and was within its rights in discontinuing the service, and the Commission is without power to order the restoration thereof. Assuming that the Wall Street Annex Ferry constituted a part of the railroad and that the company had a valid franchise therefor, the company might be within its rights in discontinuing the line. It has been held that a railroad company which has a valid franchise may discontinue a portion of its line which entails great expense without adequate return as long as it still operates a line which substantially accommodates the people of the State. People v. R. W. & O. R. R. Co., 103 N. Y., 95. People ex rel. Linton v. Brooklyn Heights R. R. Co., 69 App. Div., 549. The Wall Street Annex Ferry concededly did not pay, and the claim is made that the people are substantially accommodated by the Thirty-Fourth Street Ferry, which is still operated by the railroad company, and there is some evidence to indicate that this is true. For the reasons stated, I am of the opinion that there are no grounds upon which the Commission can order the restoration of the ferry. Respectfully yours, (Signed) GEO. S. COLEMAN, Counsel to the Commission. *[The Company is under no obligation to maintain a ferry service for which it has never received a franchise.] * See footnote, page 9. COMMISSIONER BASSETT :- OPINION OF COMMISSION. This is a complaint made pursuant to section 48, subd. 2 of the Public Service Commissions Act. The complainant alleged that the Long Island Railroad Company threatened to discontinue its ferry service between Long Island City and Pier No. 8, East River. The case case Section 48, subd, 2, of the Public Service Commissions Law provides that upon complaint in writing setting forth "any act or thing done or omitted to be done" in violation of any provision of law or of the terms and conditions of the company's franchise or charter, the Commission may proceed as set forth in that section "and take such action within its powers as the facts justify." language used indicates that no power is granted to make an order in a of threatened violation of law or of the terms and conditions of the company's franchise or charter, but only in a case where a violation has actually occurred. However, in this connection I would call attention to section 57 of the Public Service Commissions Law under which the Commission could proceed in of a threatened violation of law. This section is in part as follows: "Whenever either commission shall be of opinion that a common carrier, railroad corporation or street railroad corporation subject to its supervision is failing or omitting or about to fail or omit to do anything required of it by law or by order of the commission, or is doing anything or about to do any thing or permitting anything or about to permit anything to be done, contrary to or in violation of law or of any order of the commission, it shall direct counsel to the commission to commence an action or proceeding in the supreme court of the state of New York in the name of the commission for the purpose of having such violation or threatened violation stopped and prevented either by mandamus or injunction." Since the hearings upon this complaint the ferry service has been discontinued, but such discontinuance does not, in my opinion, constitute a violation of any provision of law or of the terms and conditions of the charter or franchise of the Long Island Railroad Company. The original charter of the Long Island Railroad Company does not require or in any way mention the use by the company of ferry boats between the terminus of its railroad, Hunter's Point, and the city of New York, although section 22 of the charter authorizes the company to purchase or employ one or more steam boats for the conveyance of passengers and goods between the eastern termination of said railroad and any other railroad incorporated by the legislatures of Connecticut or Rhode Island. However, on April 18th, 1859, an act was passed entitled, "An act supplementary to the charter of the Long Island Railroad Company," section 5 of which is claimed to authorize the use of ferry boats between Hunter's Point and New York city, and hence to authorize the use of such boats upon the line in question. This section is as follows: The said Long Island Railroad Company may also purchase or employ one or more steam boats or lighters for the conveyance of their passengers and freight between the steam terminus of their road at Hunter's Point and the city of New York; provided that the same shall in no manner interfere with the rights of the mayor, aldermen and commonalty of the city of New York." (L. 1859, ch. 444, sec. 5.) It is not entirely clear whether the legislature intended to authorize the company to operate a ferry or whether it intended merely to give the company power to purchase or hire boats, so that such action by the company could not be claimed to be ultra vires. The decision of the United States Supreme Court in December, 1858, that the purchase by a railroad company of a steamboat to run in connection with the railroad where no power to make such purchase had been granted by the legis lature, was ultra vires, may have accounted for the enactment of this section. Whatever may be the proper construction of this section, there would seem to be no question that under section 54 of the Railroad Law the company is given full power to purchase and hire boats and to operate the same, as a ferry over the route in question provided it can procure the necessary franchise rights from the city of New York. This section is as follows: "Any steam railroad corporation incorporated under the laws of this state, with a terminus in the harbor of New York, may purchase or lease boats propelled by steam or otherwise, and operate the same as a ferry or otherwise, over the waters of the harbor of New York, but this section shall not be construed to affect the rights of the cities of New York and Brooklyn." By the Montgomerie Charter of 1730 full power is granted to the mayor, aldermen and commonalty of the city of New York to control all ferries that may be established between Manhattan Island and Nassau Island (now Long Island) and it is provided that no one without the consent, grant or license of said city shall have any control over the ferries or possess any power in regard to them. Montgomerie Charter, sections 15, 37. These powers over ferries have been continued and strengthened in subsequent charters. Section 71 of the present charter is as follows: "The rights of the city in and to its water front, ferries, wharf property, land under water, public landings, wharves, docks, streets, avenues, parks, and all other public places are hereby declared to be inalienable." Section 826 of this charter provides that the board of docks shall have the power to lease the franchise of any ferry or ferries belonging to the city and also to lease along with such franchise the wharf property, including wharves, piers, bulkheads and structures thereon and slips, docks, and water fronts adjacent thereto, used or required for the purposes thereof; all leases to be subject to the approval of the commissioners of the sinking fund. The Bureau of Franchises of the Commission made a report concerning this matter which indicates that the company has no franchise for the operation of this line, as the dock department of the city of New York has stated that the company has no arrangement with the city whatever in regard to this service. The Bureau reports that "The Long Island Railroad Company is enabled to land its passengers at Pier 8 through an arrangement with the lessee of this pier, an arrangement similar in kind to that which any excursion boat might make. The old Pine Street Ferry franchise expired January 1, 1906, and was not renewed. The present annex service was substituted for the Pine Street Ferry service." This case is, therefore, clearly distinguishable from the ordinary case where a railroad company seeks to abandon operation over a portion of its route for which it has received a franchise, constructed a road and operated for a time. It may be true that in the latter case the railroad company may not discontinue operation without express authorization of law for the abandonment of a part of such route; but this must be so because the railroad company has accepted a special franchise, its obligation to operate being implied from the acceptance of the franchise, which imposes on the company the reciprocal obligation of rendering the service to enable it to perform which the franchise was given, but the statutes before mentioned conferred no special franchise on the Long Island Railroad Company and it has not since obtained a franchise from the city of New York. The use of the East river for purposes of navigation requires no special franchise, and a grant by the legislature of power to a railroad company so to use the East river was a mere extension of the corporate powers of such company and not the grant of a special franchise. For these reasons I conclude that the abandonment of this ferry line does not constitute a violation of law or of the charter of the company, and since the company never obtained a municipal franchise, such abandonment is not in violation of the terms and conditions of such franchise. I therefore recommend that the complaint be dismissed. Proposed discontinuance of annex boat plying between Long Island City and Pier 8, East River." An order of the Commission, No. 701, having been made herein on the 28th day of August, 1908, directing a hearing on September 11, 1908, in the matter of the proposed discontinuance of the annex boat plying between Long Island City and Pler 8, East river, and it appearing that the matters complained of are not in violation of any provision of law or of the terms and conditions of a franchise or charter of the said company, it is Ordered, That said complaint be, and the same hereby is, dismissed, and that this order be filed in the office of the Commission. RATES, FARES AND CHARGES. COMMUTATION RATES. [The provisions of the Public Service Commissions Law do not require a discontinuance of reduced commutation rates to school children.] The Staten Island Rapid Transit Railway Company proposed to discontinue the reduced monthly rate of two dollars for school children. The Chairman, on behalf of the Commission, sent the following letters to that company stating its construction of the law: December 8, 1908. The Staten Island Rapid Transit Ry. Co., 17 State St., New York City: DEAR SIRS :- The attention of this Commission is called to the fact that in your tariff P. S. C. 1, N. Y.- No. 6, effective January 1, 1909, you have omitted therefrom the monthly school rate of $2 heretofore shown on your tariff. The Commission notices by newspaper statements that the reason this reduced rate for school children has been eliminated arises from a recent ruling by the Interstate Commerce Commission that special rates for school children are preferential and objectionable. As has been indicated by the Public Service Commission for the Second District in an opinion upon this subject, the provision of these commutation tickets confined to the use of school children dates so far back in the past that its origin is practically unknown, and in the opinion of the Commission their continued use is extremely desirable to public interest. (See "Reduced Transportation Rates to School Children" dated October 28, 1907, P. S. C. 2, N. Y.) In so far as transportation of school children by your road within this state is concerned, you are advised that your proposed discontinuance of these reduced rates is not demanded by any construction of law by this Commission, which has sole jurisdiction of such transportation. Your prompt attention is requested in this matter, with the suggestion that an immediate application be made to the Commission for leave to put into effect a tariff on less than thirty days' notice, continuing the school rate heretofore in existence. Very truly yours, (Signed) WILLIAM R. WILLCOX, See footnote, page 9. Chairman DEMURRAGE. *[The Public Service Commission does not have jurisdiction over demurrage charges on shipments from without the State.] The Hay and Grain Dealers Association and F. M. Turnbull Company presented a complaint against the Lehigh Valley Railroad Company regarding demurrage charges on grain and delays in delivery of cars. The complaint was referred to the counsel to the Commission, who rendered an opinion that the Commission did not have jurisdiction, as follows: OPINION OF COUNSEL. *[Commission has no jurisdiction of complaints as to excessive storage charges or demurrage at New York terminals on shipments from without the State Interstate Commerce Act.] February 14, 1908. Hon. EDWARD M. BASSETT, Commissioner: SIRI beg to submit herewith my report in the matter of the petition of Hay and Grain Dealers Association and F. M. Turnbull Company against the Lehigh Valley Railroad Company regarding excessive demurrage charges and alleged irregularities in the forwarding of cars. This report is furnished in accordance with your communication of January 9, 1908, stating that Mr. Blackmar was to report in regard to the matter but that no report had been made. STATEMENT. The petitioners above named complain that the Lehigh Valley Railroad Company imposes upon them certain demurrage and track storage charges upon shipments of grain arriving by rail at New York city, which are alleged to be in fact a penalty, and to be unlawful, unjust, oppressive and unreasonable in amount. They also complain that the defendant is not prompt in the delivery of cars consigned to them but collects them on sidings and holds them until there is a sufficient number to make up grain trains, after which these cars are all delivered at once, to the great damage and loss of the petitioners. The petition sets forth at length the schedule of rates charged by the company for demurrage or "track storage" charges which are claimed to be excessive, and also cites specific instances of shipments made from Chicago to the petitioners which are alleged to have been unreasonably delayed in transit. The petitioners ask that the Commission take action in the matter and that the Commission afford relief in the particulars following. (1) That said Lehigh Valley Railroad Company be forbidden and enjoined from imposing such charges for track storage, and that such charges be declared to be unlawful. (2) That proper regulations be made to compel said Lehigh Valley Railroad Company to deliver cars regularly and within a reasonable time from the date of shipment. (3) That said Lehigh Valley Railroad Company he directed to return and repay charges for track storage paid by said F. M. Turnbull Company under protest. OPINION. As the matters of which the petitioners complain arise in connection with shipments from without the State of New York, there is presented the question as to whether this Commission has jurisdiction thereof or any power to grant the relief asked. The provisions of the Public Service Commissions Law relating to railroads, street railroads and common carriers and the powers of the Commission in regard thereto are contained in articles II and III of that law. Section 25 of article II (which is the first section of that article) defines the application of the article as follows: The provisions of this article shall apply to the transportation of passengers, freight or property from one point to another within the State of New York, and to any common carrier performing such service." Section 26 of the same article prescribing the facilities to be provided by common carriers and the charges to be made and demanded by them and prohibiting excessive charges, is as follows: "Every corporation, person or common carrier performing a service designated in the preceding section, shall furnish with respect thereto such service and facilities as may be safe and adequate and in all respects just and reasonable. All charges made or demanded by any such corporation, person, or common carrier for the transportation of passengers, freight, or property or for any service rendered or to be rendered in connection therewith as defined in section two of this act, shall be just and reasonable and not more than allowed by law, or by order of the commission having jurisdiction and made as authorized by this act. Every unjust or unreasonable charge made or demanded for any such service or transportation of passengers, freight, or property or in connection therewith or in excess of that allowed by law or by order of the Commission is prohibited." * See footnote, page 9. |