New-York tribune., 1921-04-25
Delaney, at Own Request,
viii Be Co-Defendant
With New Commission.
ers in City's Action
Ruling Expectedin
Two.Day Litigation
Miller Board Will Be
Sworn In To-day; Craig
to Hold Up All Moneys

George McAneny, chairman Of the
new Transit Commission, and John. n.
Delaney, whose commission as Transit
Construction Commissioner will expire
shen the new commission takes office,
reached on understanding yesterday
designed to facilitate a legal test Of
| tie authority of the Transit Commits
sicn. 1t is thought that this test may
be completed within two days.
Commissioner Delaney suggested to
Commissioner McAneny that they be-
come co-defendanrs In friendly litiga-
ton instituted by the city to test the
validity Of the appointment of the new
commission.
Mr.. Delaney on Friday was served by
Corporation Counsel O'Brien with
notice that the city demanded that the
Office of the Transit Construction Com
missioner be not turned over TO the
new commission on the ground that the
law creating it is unlawful, unconsti-
tutional and void" Mr.. Delaney sent
letter to Mr.. McAneny advancing the
suggestion of contest of the city's
suit in friendly attitude.
Mr.. DelanCy's Suggestion
Mr.. Delaney, after quoting his in
structions from Mr.. O'Brien, said in
bis letter to Mr.. McAneny:
"The Corporation Counsel further
advises me that the issue Of the valid
iy Of the act winch purports to create
IL new transit commission will be
brought to the Supreme Court for ad-
|iudication Immediately after the quail
ication Of the appointees authorized
hereby, and that / will also be de-
iendant in said action, which shall
eek to restrain me from delivering to
The said new appointees any Of the
roperty of the city.
"As co-defendant with yourselves
believe that we should all cooperate
With the city authorities to bring this
Immediately. It is wholly unimportant
what individuals wear the title or re-
ceiye the emoluments of this office,
but it is vitally important that who
ever undertakes to exercise the duties
should have a valid and untainted
right to do so.
1.-THE city unquestionably has vital
interest in the property that it has ac-
CURED at an expenditure Of more than
,270000,O00 of public funds. The city
has challenged my right and your right
to dispose of this property under the
terms of the new legislative act.
acknowledge the justice of the demand
that the nature and extent of our au-
.hority be determined by the Supreme
Court. suggest that you join with
me in this policy, and in conformity
with this spirit refrain from any de-
mand for or attempt to take possession
Of the records il the possession of
until the matter comes before the
court, which may be only two days
after notice has been given. Mean
while, you will have the untrammeled
opportunity to prepare your return to
the motion of the Corporation Counsel,
a4d will, of course, agree to suspend
all official activities.
No Personal Question
"There is no personal or partisan
question involved in this matter.
have no doubt that the :ity authorities
have as mucht confidence in you three
gentlemen as in me. The sole question
is the constitutional validity of the
act Of 1921. This new act Numerically
severses or obliterates the policy rep
vesented in the act of 1919. The old
law provides that the city shall par
tlcipate in every action involving the
expenditure of city furds. The new
act not only authorizes tho taking of
city funds without the consent of the
city authorities, but further authorizes
the confiscation of city owned prop
erty that has cost $27O, 100000 and the
abrogation of the contracts that rep
resent the consideration for this vast
expenditure of public funds. / hold
once under the terms Of the old act:
you would assume Office under the
terms Of the new act. This impersonal
statutory distinction IS the only rea-
son why any issue is made as to the
mcumbency Of the office.
i hold that il is our highest duty
ss state officers to encourage and as
Hst the determination Of such vital ls-
sues in an orderly way by the court.
10 endeavor to embarrass the efforts
the city authorities in such aud
sble effort, by evasion or lack of CO.
operation, would seem to me like trick
ssfy and sharp practice. No state Of
ncsr can afford to obstruct or hamper
Or evade the trial of any legitimate
ISSUE IN the courts, and surely not one
Ia which more than half the population
Continued on paso four)