New-York tribune., 1907-07-14
MUST PAY ?. s. BOARD
DIR. PENDLETON'S OPINION
Cooperation Counsel Does Not Find
Lac Unconstitutional.

Corporation Counsel Pendleton, predicted in
The Tribune, fails 10 find the public service law
unconstitutional In opinion rendered to Con-
troller Metz yesterday Mr. Pendleton advised the
Controller 70 pay the money remaining to
credit Of the old Rapid Transit Board 10 the
commission and to honor all legitimate and duly
certified bills of the commission
In reply To a letter from Commissioner Bassett
the Corporation Counsel said the Controller could
pay the present employees OF the commission with
out recassihcatiOn under the Civil Service, and
that the offices of the old board available for
the commission.
In his opinion, however. Mr. Pendleton took oc-
casion 10 make bitter attack the public
vice Law. He also digressed from his subject TO
indorse heartily Mayor McCellans views the
measure and to pronounce the latters stand
the measure undoubtedly sound" The statute is
in many respects most unjust and objectionable to
the CITY, Is the opinion Mr.. Pendleton expresses
In many respects the new Corporation Counsels
opinion on the legal phases Of the bill is identical
with that prepared 10y Corporation Counsel Ellison
in some instances the two opinions word for
word. The main difference is that Mr. Ellison
seemed less antagonistic TO the bill and more
tain of It's validity.
Mr.. Pendleton. after citing various authorities,
reaches the conclusion that the law IS general
measure, declaring that had it been local, it would
have clearly been unconstitutional
The second point considered arising from
4 section of the measure which provides that all
the expenses OF the commission for the I'd District
shall be borne by the state while all the expenses
of tho commission for the 1st District shall he
paid by the city of New York with the exception
Of certain salaries The legal question arising from
this provision is whether the city of New York is
Disseminated against unjustly. Again MIR. Peude-
ton forced 10 decide in the negative
The third point urged against the constitutions
atty OF the measure the section providing that
The commission shall in addition hold and
exercise all the powers heretofore conferred upon
/ the Board Of Rapid Transit Commissioners" After
citing many cases. Mr.. Pendleton gives it his
opinon that the section cannot be held unconsti-
tutonal
The fourth constitutional question passed on was
whether the payment of the expenses Of the com
mission for the list District by the city Of New
York is for city purpose" This, again. de-
cded in the affirmative
y fifth question was whether the commissioners
were city officers If they were they should be
elected, not appointed. Mr. Pendleton decided that
they cannot be considered city officers.
The sixth and last point discussed whether
the bill imposed non-judicial functions on the Ap
pellate Division Of the Supreme Court Mr.. Pende-
ton held that it. on its face did not, and while
not passing on the point positively. held that the
Dill should not now be declared unconstitutional
on that ground.
In commenting the position of Mayor McC7el-
Ian in regard 10 the bill the Corporation Counsel
says;
The question before me- however is somewhat
different from that presented 70 the Mayor who
the chief magistrate Of the city was under
duty TO vigorously oppose the enactment of an
Objectionable law, whether its vicious features
rendered the statute entirely unconstitutional or
whether they merely made IL Il vicious statute
which. while Ct might he technically CONSTITUTIONAL
would be most unjust to the city and detrimental
10 It's interests
1T may also he noted that the question presented
70 the Mayor a legislative rather than a
sttutonal one. The sole question which
decide. however. is n much narrower one-whcther
the statute its face violates the constitution of
the state IN particulars which affect the interests
Of the city.
THAT it does in a larger sense attack tho prin-
ciple Of home rule cannot be disputed. but ths
point ! must base my decision upon the theories OF
home rule and se'f-EoVernnent Gs laid down by the
courts. which give 10 these terms much narrower
than that in which they are ordinarily
used
Before taking up tho consideration Of the bin