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§ 190. Delegation to Board of Rapid Transit Railroad Commissioners Subways-City Ownership and Obligations-Change of Construction Plans.-A rapid transit board may be authorized by statute to enter into contracts with any person, corporation or firm best qualified in the board's opinion to carry out and fulfill such contract, and such enactment is not unconstitutional as denying the equal protection of the laws to other persons intending to construct a road on the same line.34 Where a city, by its board of rapid transit commissioners, acting in pursuance of the law conferred upon it, entered into a contract for the construction and operation of a rapid transit railroad; said road and tunnels, under the statutes and contract, were to be paid for by the city and be its property, and the equipment was to be paid for by the contractor and be his property; the board was also authorized to make such changes as were deemed necessary and determined that electricity should be the motive power used, thereby necessitating additional excavation; and it was held that the city should pay therefor, and that the property so changed should belong to it.35

§ 191. Power of Electrical Commission-Electrical Conduits Board of Commissioners of Electrical SubwaysBoard of Electrical Control.-Where an electrical commission is established under an ordinance of a city, which has power under its charter to grant franchises or rights in the city streets, and such commission is vested with power to construct, regulate and maintain electrical conduits in such city, coupled with authority to rent space therein, under certain conditions, it may refuse a permit for the use of such conduits to a person who has not acquired a franchise to use the streets and may

3+ Underground Rd. of the City of New York v. New York City, 116 Fed. 952, aff'd 193 U. S. 416, 48 L. ed. 733, 24 Sup. Ct. 494.

See 88 167-170, herein.
Delegation to Public Service Com-

mission of New York, see § 166, herein.

35 McDonald, In re, 80 N. Y. Supp. 536, 80 App. Div. 210, aff'd 175 N. Y. 470 (mem.). See § 166, herein.

require a compliance with the provisions of the law.36 Another subordinate body was created in 1885, and was known as the board of commissioners of electrical subways in and for the city of New York,37 and in 1887, the board of electrical control for said city was created and it was held to have full discretionary power in reference to when, where and in what manner wires should be placed underground; 38 and it is also declared that from the proper construction it would appear that a discretionary power was intended by the enactment to be vested in the board and that such power was to be legitimately and fairly exercised.39

Purnell v. McLane, 98 Md. 589, to consent-Subways. Compare Peo56 Atl. 830, 8 Am. Elec. Cas. 55. Commission of gas and electricity, see 160, herein.

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37 See People v. Ellison, 101 N. Y. Supp. 441, 51 Misc. 413, aff'd 101 N. Y. Supp. 55, 115 App. Div. 254; Laws N. Y., 1885, chap. 499; People ex rel. N. Y. Elect. Lines Co. v. Squire, 107 N. Y. 593.

3 United States Illuminating Co. v. Hess, 3 N. Y. Supp. 777, 19 N. Y. St. R. 883, 2 Am. Elec. Cas. 187; Laws 1887, chap. 716, Am'd Laws 1890, chap. 550.

39 Higgins v. Manhattan Elec. L. Co. (Sup. Ct. Chambers, March, 1889), 3 Am. Elec. Cas, note 167, per Lawrence, J. See American Rapid Transit Co. v. Hess, 125 N. Y. 641, 36 N. Y. St. R. 252, 21 Am. St. Rep. 764, 26 N. E. 919, 39 Am. & Eng. Corp. Cas. 526, 3 Am. Elec. Cas. 142, aff'g 58 Hun, 610, 35 N. Y. St. R. 606, 12 N. Y. Supp. 536; Joyce on Electric Law (2d ed.), §§ 424, 425.

Board of aldermen and not board of electrical control is proper authority

ple v. Consolidated Teleg. & Electrical Subway Co. (West Side Electric Co. v. Consolidated Teleph. Co.), 96 N. Y. Supp. 609, 110 App. Div. 171, aff'd 187 N. Y. 58, 79 N. E. 892, where the Laws of 1848, p. 48, c. 37; Laws 1879, p. 562, c. 512, as to occupation of streets by gas and electrical companies with consent of municipal authorities; Laws of 1887, p. 928, ch. 716, transferring to board of electrical control the powers theretofore vested in commissioners of electrical subways under Laws of 1885, p. 852, c. 499; Laws of 1890, p. 1146, c. 566, subdv. 1. Transportation corporations Law, authorizing use of streets over and under the surface by electrical corporations with consent of city authorities, and the New York city charter prior to 1897 are all considered, and it is held that the right to lay such wires in conduits or a subway was dependant upon consent of board of aldermen and not upon that of the board of electrical control. See Laws 1902, c. 596, amending Laws 1890, c. 566, § 61, subdv. 1. See Laws 1905, c. 210, amending Laws 1890, c. 665, § 82, subdv. 2; Laws 1906, c. 455, amending Laws 1890, c. 566, § 82, subdv. 2.

§ 192. Delegation of Power-Grant of FranchisesBoard of Estimate and Apportionment of New YorkTransfer of Power from Another Board-Cumulative Voting. It is held in a New York case that there is no restriction upon the power of the legislature to take away from one body of local authorities the power to grant franchises and to transfer the same to some other city, board or department, such as the board of estimate and apportionment, as such authorities have no vested right to the continuance of any public powers or duties conferred upon them, and that what the legislature can grant it can transfer and such laws are not unconstitutional. It is held that the system of cumulative voting in the board of estimate and apportionment, authorized by the city charter, does not prevent the legislature from authorizing it to grant franchises because a minority of the individuals composing the board, by a combination of votes, may be able to determine a question before it; since there is no constitutional limitation upon providing for such a system of voting in the board, it being a question of policy and not one of power, and under the circumstances attendant upon creating Greater New York City, it would be neither fair nor just to permit each member to vote per capita.40 This case is cited in a later case in the same State 41 upon the question

40 Wilcox v. McClellan, 185 N. Y. 9, 10, 77 N. E. 986, aff'g 97 N. Y. Supp. 311, 110 App. Div. 378, aff'g 95 N. Y. Supp. 941, 47 Misc. 465; Pettit v. McClellan, 97 N. Y. Supp. 320, 110 App. Div. 390; Laws 1905, pp. 1533, 1548, cc. 629-631; Laws 1873, p. 517, c. 335, § 112; Greater New York Charter, §§ 48, 74; Laws 1901, pp. 26, 38, c. 466, construed with Const., art. 10, § 2, art. 8, § 1, which provide that (art. 10, § 2) "* * *All city * * * officers, whose election or appointment is not provided for by this constitution, shall be elected by the electors of such cities, * * or of some di

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vision thereof, or appointed by such authorities thereof, as the Legislature shall designate for that purpose. (art. 8, § 1.) "Corporations shall be formed under general laws, but shall not be created by special act, except for municipal purposes, and in cases where, in the judgment of the Legislature, the objects of the corporation cannot be attained under general laws. All general laws and special acts passed pursuant to this section may be altered from time to time or repealed."

41 Reis v. City of New York, 188 N. Y. 58, 67, 80 N. E. 573, aff'g 99 N. Y. Supp. 291, 113 App. Div. 264.

of the powers of the board of estimate and apportionment: "a body which has been deemed by the legislature sufficiently. representative, responsible, and trustworthy to exercise the power of granting or withholding street railroad franchises within the limits of the municipality in place and instead of the board of aldermen.” 42

§ 193. Dock Department no Power to Grant FranchisesStreet Railway.-A dock department of a city has no power to grant franchises, and its consent or resolution permitting the construction of a street railway is not the grant of a franchise.43

§ 194. Delegation to County Commissioners-FerriesBridges-Use of Streets-Permits-Gas and Electricity— Street Railroads-Repaving-Removal of Poles, etc.-A ferry may be established by county commissioners, and the petitioner is given a vested right subject only to reversal or modification by the Superior Court.44 If a statute grants a ferry franchise and makes it unlawful to establish any other ferry within a specified distance, such enactment operates as a limitation upon the general power conferred upon the county commissioners by code to "appoint and settle ferries," and precludes them from authorizing a ferry within the prohibited distance. And a constitutional provision giving the supervision and control of roads, bridges, etc., to such commissioners, does not deprive the general assembly of the power to enact a statute authorizing the establishment of a public ferry at a certain point for a certain term of years and also providing that it shall be unlawful for any person to establish another ferry within a specified distance of said ferry.45 So county

42 Laws 1905, chaps. 629-631.

43 Central Crosstown Ry. Co. v. Metropolitan St. Ry. Co., 44 N. Y. Supp. 752, 16 App. Div. 229. See also Hart v. Mayor, etc., of New York, 44 N. Y. Supp. 767, 16 App. Div. 227.

44 Robinson v. Lamb, 129 N. C. 16, 39 S. E. 579. See Wilson v. Gabler, 11 S. Dak. 206, 76 N. W. 924.

45 Spease Ferry, In re, 138 N. C. 219, 50 S. E. 625.

commissioners have no power to grant a ferry franchise to establish a ferry between points located outside of the county even though one of said points is attached to the county for judicial purposes.46 Such commissioners may also be authorized to appropriate money for the purpose of constructing bridges on public highways or town roads.47 If a gas company is authorized by the law of its creation to lay pipes and mains under the streets and roads of any county, but it is subject to any law that may be passed by the county commissioners for the filling up and repaving of any street under which the pipes may be laid; still it is not bound by a regulation of the commissioners providing that no water pipes or mains shall be laid within the limits of any of the highways of the county, and prohibiting the digging up of any of said highways for said purpose, without a permit, and also includes electric light, telegraph and telephone poles and wires, electric, steam and other railway tracks within the requirement as to a permit, for such regulation does not include gas mains or pipes. And this is so even though such commissioners may make reasonable regulations before such gas pipes are laid, or might prevent gas companies from making improper use of its public highways.48 Where county commissioners are given the custody and control of a pike or highway in the State, they may take steps to require the removal to the other side of the street of poles and wires when they, from their location and the existing conditions, seriously incommode the public.49

§ 195. Delegation to Towns, Villages and CountiesWater Rates-Ferries-Heat, Light and Power Franchise and Contract, When Void-Waterworks-Hydrant Rentals. Where towns and villages have the right, under a 48 Consolidated Gas Co. v. County Commrs. of Baltimore County, 98 Md. 689, 57 Atl. 29.

46 Patterson v. Wollmann, 5 N. Dak. 608, 67 N. W. 1040, 33 L. R. A. 536. See Green v. Ivey (Fla., 1903),

33 So. 711.

"Bayne v. Board of Commrs. of Wright County, 90 Minn. 1, 95 S. W. 456.

49 Gantz v. Ohio Postal Teleg. Cable Co., 140 Fed. 692, rev'g Ohio Postal Teleg Cable Co. v. Board of Commrs., 137 Fed. 947.

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