The New York herald., 1875-12-16
SINKING FUND COMMISSION.
The Union Ferry COmpany'S Lease
Pronounced Invalid.
Comptroller Green Bitter on the
Department Of Docks.

The Commissioners OF the Sinking Fund mot yestsr-
day afternoon the Mayors Office, in the City Hall,
Hs Honor presiding, Recorder Hackett; Comptroller
Green, Chamberlain Tappan and Alderman Gross being
present.
A communication was read from Corporation Coun-
sci Whitney giving his opinion in nresponse to reso-
luton adopted by the Board November 8 the valid
ity Of the lease made to the Union Ferry Company in
1870 The Union Ferry Company, as Is well known, is
composed Of the Fulton the South, the Hamilton ave-
nue. the Catherine and the Wall street ferries. In
lengthy report he reviews the relations between the
city and the ferry company for number of years
subsequent to 1852 then continues in regard to the
Lease in question:
THE CORPORATION couEsEL's OPINION
After a careful examination OF this matter the only
statute which lind which gave any possible color
of authority TO the Commissioners Of the Sinking Fund
20 make this lease, and under which, | am credtably
informed the right to make it claimed Is found in
chapter B76 Of the Laws Of 1869 This act is what is
commonly known as the City Tax Levy'' act of that
year, and section of said act is as follows-The Com
nssoners Of the Sinking Fund hereby empowered,
Ia such manner as they shall deem best for the interests
of the city, from time TO time to lease city property,
but not for term longer than tho charter limitation Of
ton years for renewal for longer term tnan ten
years.
II this section had in clear and express terms, au-
thorzed the Commissioners OF the Sinking Fund Of this
city 10 make the lease in question, should neverthe-
leas have serious doubt to its constitutonaty Sec
ton IL Of article of the constitution of this State de-
cares that private local bill which may be passed
ject and that shall be expressed in the title. This Tax
Levy local act and its subject was the making pro-
vision for the government OF the city OF New York 1t
seems to extremely doubtful whether section in
a levy act which in effect would authorize the local
property Of the city could be fairly considered coming
within the scope OF an act to make provision for the gov
ernment OF the city Moreover il the Legislature
had such absolute control the private property Of
the city as to be able to authorize the local authorities
to give the away, there may be serious doubts
whether il would have the constitutional power to in
of the city under ordinances of the Common Council
and acts Of the legislature Rents for ferries have for
many years under such ordinances and acts been
pledged TO the payment OF the interest on the city debt
and Il tho Legislature could constuonaly authorize
the Commissioners OF the Sinking Fund to give away
ferries belonging to the city it is difficult to why 1t
might not authorize such Commissioners to give away
ali the real and personal property belonging to the CITY,
thus leaving the creditors of the city without any
security whatever for their debts except such might
be derived from future taxation
Section OF the act TO amend the charter OF this
city passed April H. 1858, required all ferries TO be
leased by public auction. The same provision
tanned section Al or the charter OF 1857 and continued
in force until the passage of the act Of 1862 above
fsrred to- l am informed by those familiar with the
matter that between 1853 and 1859 leases of ferries
were usually sold by the Comptroller at public auction
pursuant TO resolutions of the Common Council and,
in opinion the only effect OF the act OF 1869 was to
authorize the Commissioners of the Sinking Fund TO sell
the leases of such ferries at private sale instead of
public auction. The Commissioners authorized
t'to lease city property in such manner as they shall
deem best for the interests of the city, but 1t to
that the words sin such manner they shall deem
price which TO be asked by them upon the leasing
of city property; but to have been intended to give
them, above stated the right to make leases with
out putting the same up at auction. power to lease
city property would doubtless ferries, both
the franchise TO the and the wharf property
seem to me possible however that the power given to
lease city property can be construed as power to
give such property away II is to my mind incredible
that the Legislature, in single section of tax levy,
should have intended to confer upon the Commission
Of the Sinking Fund such extensive powers. The
granting Of this single lease II the same is valid, was
IN effect giving away between sl,ooO,OOO and
81, 500 900 of the property of the city. The
price paid under the lease granted in 1860 $403,
1o3 900 per annum. There can be no doubt consider
ing the immense increase of communication between
the two Cities that although portion OF the premises
mt Fulton ferry had been taken for tho Brooklyn
bridge the lease of the i've ferries In question lar
moro valuable in 1870 than 1t was IN 1860 The grant
for ten years. therefore, from May 1871 at the price
named in the old lease q sacrifice OF the city
OF more than 81 000 000 and II reckoned at
the real and enhanced value could hardly
have less than 81, 100000 If the Commissioners
OF the Sinking Fund were authorized by this section OF
five lines, smuggled through the Legislature in tax
levy act to give away ST. 500 600 OF the city property
there Is escape from the conclusion that they
might also have given away, by making leases
nominal rents every ferry belonging TO the city and
all It's personal and real estate including the pub
Lie parks and buildings. cannot believe that such
construction Of this statute would ever be given to 1t
by the courts of justice. believe. that the authority
given 10 lease city property was an authority 10 make
lease without public auction at fair and reasonable
prices, apd that the Commissioners OF the Sinking
Fund owed the duty TO the city In making such
Lease that the agent OF private individual would owe
TO such individual under an authority lease private
property and that 1t was the duty Of the Commission
Of the Sinking Fund under this law, to have made
lease Of said ferries upon terms the most advantageous
20 the city which they could obtain
The managing director of tho Union Ferry Company
In the correspondence which took place, expressed
strong desire to aid in the prosperity OF the inhab
ants Of the city Of Brooklyn and TO give them as cheap
ferriage is consistent with reasonable prohs TO the
stockholders do not know whether, IN view OF the
that the city relieved the company from the pay
ment Of than 500 900 year, tho reduction of
faros between the two cities during certain hours oil
tho day caused any decrease in the profits OF the COM
pany Assuming however, that the reduction Of rates
caused loss equal to the amount previously paid as
rent do not see with what propriety the Commis-
sioners of the Sinking Fund could appropriate more
than ST. 900 600 OF the moneys OF the city oil New YORK
10 aid in the prosperity OF tho city Of Brooklyn and In
the giving to its inhabitants cheap ferrage across tho
East River.
In view of the opinion above expressed It is hardly
necessary for me to refer TO any other grounds
upon which regard the lease invalid. As there is,
however such ground which II seems to me must
DO regarded as plainly rendering che lease Invalid, l
will briefly refer to 1t Tho property leased to the
Union Ferry Company, under the lease in question,
granted ferry franchises to run five ferries and also
the use of large amount OF valuable wharf property
The term ''cty property used in the act of 1869 is
broad enough TO cover such franchises as well as
such wharf property and the act CONSTITUTIONAL
go long as ii remained In force would have authorized
the commissioners to make bona fds lease OF both
such franchises and wharf property AT the time, how
ever, OF the execution OF this lease l do Lot
think the Commissioners OF the Sinking
Fund had any authority. to lease such
wharf property section w OF the cnartcr OF lofu
established Department Of Docks, which to pos
sss such powers and perform such duties and receive
such compensation should be established and defined
by the Commissioners of the Sinking Fund This char
ter passed April g. 1870 Section 32 OF chapter 1888
OF the laws 1870 passed April 20 1870 vested in said
Department OF Docks exclusive charge and control of
che leasing of all wharf property belonging to the Cor
poraton OF the city of New YORK, and subsequent sec
tons Of that act contain elaborate provisions defining
the powers and duties OF the Department of Docks
Chapter 3S3 was the called 'Tax Levy" act Of that
year and unless the provisions in reference to the
of lie
being within the subject of the title OF the
act. and for the purposes of this opinion |
must assume that they not unconstitutional fol-
lows that the Commissioners Of the Sinking Fund had
no authority execute lease of the wharf property,
covered by the lease to the Union Ferry Company
BY reference 10 the statement OF facts above set forth
I will bc observed that the resolution authorizing the
lease as was finally executed was not adopted until
May 10, 1870 The company did not accept the propo-
sllion until May Is 1870; the Commissioners did not
nathorze the preparation Of the lease until May ~,
1870 and the lease itself was not approved ana ordered
atal NM IlLnn moi In iAGL