The sun. [volume] (New York [N.Y.]) 1833-1916, 1897-12-18
SETBACK FOR THE TUNNEL.



adjacent cities and counties over the
limit provided by the Constitution is not to be
charged against the city at this time. because
tho actual assumption has not taken place, al.
though tho obligation to assume at present
exists. Whether these devices in respect to the
contract, and these theories as to the existing
Indebtedness of the city will finally obtain.
ought to depend upon the decision OF our court
OF last resort, and should not DO determined. as
has been already stated, in this proceeding where
they cannot DO reviewed.
There are other questions in regard to other
species OF indebtedness. We know, for instance.
little IL anything from the evidence before us Of
tho floating Indebtedness of the territory which
tho city Of New York is bound to assume on the
LIST of January next These uncertainties may
upon some application in reference to tho con-
tract BIO cleared up. so that the exact truth In
respect thereto may be known. Upon the whole,
although 1t Is evident that beyond peradven-
ture tho entrance by tho city into this enter
prise will materially cripple its power to carry
on other contemplated improvements unless
the money therefor is produced by immediate
taxationl, and although weighty questions
OF law must necessarily arise as TO the
legality of any contract which may DO en-
tered into for the construction Of this road,
l think that rs the cost of construction Is estab-
lishcd with reasonable accuracy, and tho ability
W buCu CUSC Is bnOWu.p TONlucu tno pOSl-
ton of the Supreme Court Commissioners and
the Rapid Transit Commissioner in respect to
what constitutes the Indebtedness Of the city
under tho Constitution finally prevails, what
ever may be our opinion upon those subjects,
we should confirm the report Of the Supreme
Court Commissioners and allow these legal
questions to be settled in the future, particu-
larly as. II 1t should be determined that the debt
limit was exceeded by any contract which the
Commissioners might mako. no liability could
possibly be imposed upon the city. (Litchfeld
vs. Ballou. ia L. s., 1907
I'm view Of the magnitude of tho undertaking
which we are asked to approve. and tho vital in
tcrest which the city has in the prompt compile
ton OF the contract for the building Of the road
when entered into, and its effective equipment.
maintenance, and operation, we think that we
should. before concentrating our confirmation
OF the report of the Supreme Court Commission
ers by the entry Of an order to that effect, have
some assurance that the powers of the Rapid
Transit Commissioners in respect to security.
provided by section 81 of tho Rapid Transit net
for the payment of the rental specified in the
contract, and for the faithful performance OF all
the conditions. covenants, and requirements
provided for In the contract, should be exercised
80 as to protect tho interests of the city In q sub
stantial manner, and to that end a stipu-
lation should DO filed by the Rapid Tran
sit Commissioners that the penalty of tho
bond specified in section "a Of tho Rapid Transit
act will BIO fixed at not less than $15. 900. 900.
This amount, in view of the large interests Of
the city involved in its advances of credit for
the work as it progresses, is not more than hut.
fcient security to the city in the event OF the
failure of the contractor to perform his or it's
contract and to enable 1t to carry the road to
completion in case the enterprise Ia thrown on
its hands by the default or forfeiture of the con.
tractor.
Upon the filing of the stipulation referred to
in the foregoing opinion. an order will be entered
upon the usual notice confirming the report of
the Supreme Court Commissioners"
THE DISSENTING OPINION.
Justice Ingraham, in his opinion, treats exclu.
sively of the question whether tho city of Now
York or the Greater New York is or will be ablo
to undertake the expense which would be neces.
sary to build the. proposed road without exceed
in case it did enter into such a contract
in mo sTSe IS OF 90 IL pq M;s :;oI the contract En i.self
S %su'a agrees re 'a With h the '0n majsrity, on is wh shae
a contract Of that sort would be void; and he
concludes also that the constitutional debt Knit
would be exceeded by q large amount II q con.
tract were made for building the road, assum.
ing that eontractors could be found who would
build it at the figures in Engineer Parsons's es.
I'm determining whether a great work should
be undertaken the first question which must be
considered is as to the financial ability Of those
upon whom will fall the obligation of providing
OF the contracting parties to make the necessary
contracts. Unless there is an affirmative deter.
mination of that question 1t 10 the height of folly
to attempt to make a contract + to attempt to
proceed with the work. And on this application.
considering the nature of the work proposed aud
the fact that the municipal corporation of the
city OF New York is. required to make the con.
must first consider. in determining this appiica-
tomas to whether the city has the power to make
the proposed ontract. and the ability to furnish
tho necessary money. II does not seem IN mo IN
require argument to show that IL the mourning
Of such a liability. or the making of a contract
PSo e m1p,c iiHrSfily In has excess fSs r of that It which
damental law of the Slate a contract to build
the road when made by a municipal corporation
would impose upon the municipality a liability
in excess of that allowed-it is the duty of the
mendins that the road Which would require the
making IF such a contract should be built.
tract. the con stri aio { o}f this railroad pHTss 70 %o sSRi
impose upon the city, not only the cost specified
tain Liabilities. the amount Of which no one has
attempted to estimate. and which 1t seems to me
built and in operation. Just what are the eG rights 4
OF the owners of property a%butting upon a street
s1 " HndsSaea, the the fee Surface ln OF Spd which tic h sas
been ACQUIRED byj the city OF New York. so far
as the same Is not required for the ordinary city
s6srsetsr, has never BEEN finally IEHe determined.
We have now the example of the elevated rail.
road. constructed and operated in the city o.
New York under legislative and municipal
authority for nearly twenty years, which has
lars to AUDITING property owners for the
easement In tho public streets appro.
priated by the construction and maintenance of
the road, and still the amount that the road will
have TO pay 10 not ascertained. -" Under
tho Constitution no city or county is allowed to
become indebted for any purpose, OF in any
manner, to IN amount which, including existing
indebtedness. shall exceed 10 per cent. of the
assessed valuation of tho real estate of such
county or city subject to taxation; and all In.
dobtedness in excess OF such limitation. except
ms 1t existed at the time of the adoption of that
provision shall be absolutely void"
Justice Ingraham declares that indebted
ness" as used In the Constitution. includes all
existing or implied obligations or liabilities.
He then quotes n number of decisions In which
this position was taken by the courts, and in
which II was further held that mo subsequent
ratification OF an illegal act can bind a corporate
municipality where n contract Is unlawful when
II 10 made. and that no subsequent act could
make the contract efectual." He then says:-