The New York herald., 1922-01-18


self. or by delegation. TO some other
/ body. what amount should be raised and
applied to particular purposes.
"A large proportion OF the city s
budget has been, and now Is, composed
OF what are known as mandatory appro-
priations, and as to the amount or
which the Board of Estimate and APP
portionment has no discretion. The act
! under consideration simply adds one
more mandatory appropriation to the
list. All the act does in this respect is
TO transfer from one board of Legislative
creation to another board OF like Gre
alton the power to determine how much
money shall be appropriated for the pur-
poses specified in the act. This the Leg
isature could constitutionally do.
other Bases Considered.
'I am of the opinion. therefore, upon
the record before us that the orders ap-
pealed from were properly made and
should be affirmed. I do not care, how
ever. to place my decision solely upon
the ground stated. In view of the pub
lie interest and the Importance which
the act bears to the rapid transit situ-
alton in the city OF New York 1t seems
to me the principal objections urged
against It should be considered for the
purpose of determining whether the act
for the reasons urged is unconstitutional
"The act. In addition TO amending the
Public Service Commission law In GER
tain respects. and in addition to vestinG
ir the Transit Commission certain regu-
latory functions, and all the powers
and duties under the rapid transit act OF
1891. as amended vests in the Transit
Commission. by Article VI, and as a
grant of a distinct and independent
power, the right and duty 10 prepare \
plan of readjustment for the relief or
the emergency which Is declared to
exist. and which plan shall accomplish
as nearly as may be three purposes:
C) The combination, rehabilita-
non, improvement and extension OF
existing railroads. so that service
thereon may be increased and inn
proved to the fullest extent possible.
(2) The receipt, as soon as practi-
cable, by the city OF sufficient returns
from che operation OF the railroads,
so that the corporate stock or bonds
issued by the city for the construc-
ton of rapid transit railroads may
be exempted in computing the debt
incurring power of the city under che
constitution of the state.
(3) The assuring to the people OF
the city the continued operation or
the railroads at the present or lowest
possible fares consistent with the
lust valuations of the railroads and
their safe and economical operation.
Method to He Pursued.
"The method hy which these pur-
poses are To be accomplished Is specih-
cally pointed out in section 107 and 10
plan IS co become effective until that
section has been complied with.
"All the powers and duties under the
rapid transit act and under any other
law and under any contract OF the
Board of Rapid Transit Railroad Com
missioners, of the former Public Service
Commission Of the First district, as
successor to such Board or Rapid Transit
Railroad Commissioners Of the Transit
Construction Commissioner. as success
sor to the powers and duties or such
Public Service Commission OF the First
district. and OF the local authority OF
such city to approve contracts or modi-
fications of contracts under any pro-
vision OF the rapid transit act or or
any contract heretofore made. are
transferred to and vested in the COM
mission, together with such other and
necessary powers as may be requisite
to the efficient performance OF the
duties imposed upon the commission by
such laws and contracts.
"The commission is not authorized 10
make any new contract, or modify any
contract for the construction, equipment.
mair tenance or operation OF the rail-
roads, or any OF them, without the ap-
proval OF consent OF the local authority,
where such new contract or modifica-
ton of an existing contract requires to
carry It out the authorization by the
local authority Of corporate stock or
bonds OF the city in addition to the
corporate stock or bonds required 10
would result in replacing within the
debt limit of the city under the Con-
stitution of the State corporate stock
or bonds which have been excluded
therefrom under orders OF the Appellate
Division of the Supreme Court, or where
such contract or modification OF an ex-
listing contract adopts or so modifies
a route or routes and general plan or
n railroad as to require consents there
for under section IS of Article III. or the
Constitution OF the State.
Rules to he Kept in Mind.
"The foregoing provisions OF the act
are substantially all which it seems to
me are necessary to be considered. In
determining whether the act be a valid
lCSlSidtlNt tTaCtiNtHt CERTAIN
rules of statutory construction must be
kept In mind. some OF which are:
(a) That the legislative power Is
unlimited. except as restrained by the
Constitution.
(b) That every act OF the Legisla-
ture Is presumed to be In harmony
with the Constitution unless the con-
trary clearly appears (c) That IL
two constructions be permissible,
then the one making the act valid
must be adopted. (d) That the Legis-
lature, within constitutional limita-
tions. may retake to itself powers
delegated to boards of localities and
again assume the direct control of
matters pertaining to local govern
mcnt (e) That a municipal corpora
ton has no power. except such as ia
given to II by the Legislature and
any power thus given may therefore
be modified. diminished or recalled.
"First-As to the assertion that the
act violates Article X. section 2 Of the
Constitution. What Is claimed In this
respect IL that the Transit Commission
ers are city officers within the meaning
OF that provision. The assertion Is un-
founded and has In effect, been SO de-
termined by this court They are not
city officers. The fact that they Happen
10 bo NJ tho rrcncnt ffr,a oonat1art,,.~