New-York tribune., 1908-08-21
NEW TEST OF P. S. CLAW
TAXPAYER BRINGS SUIT.
Wants to Determine Whether City
Must Pan Employees Salaries.

Another test Of tho constitutionality of the Public
Service commissions law, so far as IL proVioes i
the payment of the expenses ana SALARIES VI "io
employees of commission for the 1st DISTRICT out
of citv funds WAS nromised yesterday with the ser
vice IF papers in a suit directed against Mayor
h-cClellan, Controller Metz and city Chaihoeiiai"
Martin, and brought by Adolph c. Gupner MI.
Gubners name is not given in the directory pu.
his lawyer. John Leary, who has an once III inc
Singer Building says his client Is a taxpayer ana
member of w. Gubner's Sons, manufacturers OF
soda waters at No 141 Park avenue. Mr. Ieary
formerly practised law in Brooklyn ana Is said u
be close friend of Senator McCarren
Mr. Gubner contends that the Public Service
Commission is a creature of the state. that the
commissioners themselves were appointed oy the
Governor supervise state corporations anu tha'
the payment of the salaries of the commissioners
their secretary and their counsel are legaiiy pro
vded for by the state He attacks, however, the
consttutionality of Section IA of the law creaths
the commissions, which provides that approPfia-
tions for the salaries of all other employees ana te
betrayal of expenses of the commission snail De
made bv the Board of Estimate and Apportion-
meflt thus saddling upon the city the support vi
state body Unless for city purposes, MI GuDhef
asserts, the city has right 10 incur expenses.
Mr.. Gubner's lawyer also gave notice that on Au-
gust 81 he would apply in Special Term Part l. OF
the Supreme Court for an injunction TO restrain the
city officials named in the complaint from appro-
priating any money for the expenses OF tile
Public Service Commission, which he contends
NA'Sf F0-o
termination Of the suit.
The salary Of each OF the commissioners is Sie'-
600 that of counsel SIS and that of the secretary
$1,000 The law further provides that all other sal
aries and expenses of the commission shall be pad
out Of appropriations for that made oy the
Board of Estimate and Apportionment upon the
presentation of acquisitions from the commission
In case of failure by the Board OF Estimate ana
Apportionrnent TO appropriate the money asked for
by the commission for what it deems necessary ex-
nenses Drovision is made that the Appellate Dvl-
sion shall pass upon the amounts called for- Choer
the law the decision of the court is to be hnal III
the ID District the law provides that all salaries
and eypenses of the commission shall be pald Dy
the State Treasurer.
Mr Leary said last night that he expected 10
prove that the Appellate Division had no power 10
annortion the expenses of the commission despite
the wording of Section Il of the Public Service
judicial body without power to order the city 10
pay the commissions expenses, and elected 10 per
form judicial functions and not the duties OF CRY
officials He added that his client was taxpayer
and was bringing suit OF his own initiative
Isn't he acting for somebody else In the mat
terq.' Mr. Ieary was asked. Mr.. Leary quer1ed IN
reply: Now if 1t were necessary to bring 1or"aro
ANYBODY else for Il taxpayer in such SUIT Is II
ukeIv that that anybody else would come Tor
ward?" mn
controller Metz asked. who is this Gubner?
The members of the commission who were IN Town
had no statement to make in regard to the suit