The sun. [volume] (New York [N.Y.]) 1833-1916, 1897-12-18
SETBACK FOR THE TUNNEL.
BI9 IFS IN APPELLATE DITIsIoN,S
RAPID TRANSIT DEoIsIoN.

and Left Open to ne LitiEnted, ana . Cen
tipuinE Bond for sls. 1000. OoO. to Han
Apparently rs TO so Years. 10 Rxactea or
the Contrnctor-p1ust Take tho whele Sch.
The Appellate Division of the Supreme Court
handed down yesterday q decision confirming,
BY 4 vote OF 4 to /, tho favorable report Of the
special commission appointed to consider the
Rapid Transit Commissioners plans for an
underground railway. The decision. however,
places restrictions upon tho proposed contract
for the building Of tho road. and expresses
opinions regarding the final determination Of
the legality of such q contract. which will
greatly delay tho building of the new road. II.
indeed. they do not defeat the scheme altogether.
The Appellate Division holds that the entire
question whether the constitutional debt limit
of the Greater New York will DO exceeded by the
building Of tho road must be settled at q later
day. The court docs not pass upon that quos.
tion now. because 1t says it's decision will be TN.
eppealable, and IL Is obvious that such weighty
matters should be determined by the court OF
last resort. Tho court broadly intimates, in.
decd. that tho question OF debt limit and all the
other important matters involved should be
brought up on a Taxpayers suit to test the
legality Of the contract for the proposed road.
which suit could. unlike the present proceed
Ahbt w 90 = " bhS w Va V
Meanwhile the court contents itself with saying
that any contract entered into by the city which
shall prove to DO in violation of the constitu-
tional provision limiting the city's power to
incur debt will be void from the beginning, and
will Impose no liability upon the city. More
over. while confirming pro fornnd tho report of
the commission. the court stipulates that the
Rapid Transit Commissioners must exact o
bond Of S15, 200. 900 from those who are to con.
tract to construct the new road under these en-
couraging conditions, and that the Commits
sioners must negotiate with only one contractor.
As the contract calls not merely for the build
ing Of the road. but for its operation for from
thirty.dve to fifty years. the bond OF SIS. 900. 900
exacted is thus obviously q very onerous ~restric-
ton. and those most informed about tho matter
yesterday expressed themselves as of the opin-
ion that responsible parties would not consider
such q project.
Justice Ingraham. the dissenting member of
the court, writes an opinion which would cover
about Eve columns In the ordinary type of The
Sun, reviewing in detail the present debt of the
city. and holding that the amount of this debt,
the prima facie evidence as to the cost of the
construction of the new road. and the other legal
questions involved. are sufficient to justify the
Appellate Division in throwing the entire mat
ter out of court without further litigation.
IL u opiniOn u TcSluiHR JuSllCe V an
Brunt, in which Justices Rumsey. Williams.
and Patterson concur:
THE MAJORITY OPINION.
18th imperious necessity of improved means
Of transit in the city OF New York has long been
recognized. 1t had become so evident that in
the year 1893 the people determined that as
there seemed to be no other means for its 40
compllshment It should be brought into exist
anea AVIAN by the nIpdpa nf Tho cradit nf the ,ttv
This necessity seems to have addressed itself so
strongly to the people that they considered that
the accomplishment of this end should be at
tanned. though the ability of the city to carry on
contemplated improvements might be thereby
curtailed.
at has been said that the people have not by
their vote approved of the plan now presented
10 the COURT; but that 1t was another scheme
which differed in many of its characteristics
from the plan now under consideration. Think,
however, that o reference to the history Of the
rapid transit enterprise will show that the peo-
pie did not give their vote to any particular de-
tail BY which rapid transit was to be obtained.
but rather In favor of a result to be reached in
any manner which might DO found to be prac.
Gtcable.
Tho presentation Of the plan now before the
osurt and the proofs and developments sur
rounding 1t constitute striking evidence or the
correctness of the conclusion of this court in
condemnation of the previous scheme which
was submitted to it. This plan, however, call
ing az 1t does for an expenditure of from $780,
0OO, 900 to $4o.0 o 900 less than the scheme
presented to tho court before. stin involves
grave questions of law as to the possibility of
its completion.
The report of the Supreme Court Commits.
sioners comedies. and the arguments Of counsel
d. fa.1r - Nha onp1inakfn- 90 H. kk.k
II the total cost of the building Of the proposed
rapid transit road is to be deemed as incurred
BY the city at the time of the making Of tho con.
tract. and that added to this is all the indebted
ness Of tho city of New York then existing.
whether funded or contingent. and its obliga.
ton to assume on the LIST of January Of the
coming year the Indebtedness of the adjacent
cities and counties as provided by the
new charter, the limit of Indebtedness will
bs exceeded. Whether any of these elements
can be excluded in determining as to the legal
ity of any contract which the Rapid Transit
Commissioners might make or propose to make
for the building of this road. presents serious
questions Of law. which In my judgment ought
not to DO determined upon this application, fol-
the reason that If the court, on this application,
should como to a conclusion upon these ques
lions adverse to the legality of such proposed
contract, no review could DO had of its deter
mination. although involving only questions Of
law.
1T 10 stated In tho report of the Supreme
Court Commissioners that the suggestion tina,
NO contract for the construction Of tho road car
be made without ipso JGcto creating o debt ts
the full exteLt of its timated cost 10 not reason
able. The question Of the reasonableness OF
constitutional inhibition Is not open to discus
sion, and an examination of the authorities II
this State upon the question of what constitutes
Indebtedness or debts due may show that THU
unreasonable proposition has very respectabl,
authority. viz. our Court Of Appeals.
at cannot for a moment DO assumed In con
sidering these questions that independent ant
separate contracts of construction with differ
emit contractors could from time to time be en-
tered into. for the reason that every contract O
construction must necessarily embrace a con
tract for the operation of the line by the con
structing contractor. and to have the operation
Of the rapid transit system controlled by diver
and various operators would of itself neces
sarily absolutely condemn the scheme. It woul,