The New York herald., 1922-01-18
contained in the act. are recited in the

Judge mclaughlin quotes tnat Sec
tion from the transit act, requiring the
Board OF Estimate to make appro-
priations on acquisitions of the COM
mission and providing that If the city
board fails the commission may apply
10 the Appellate Division. 1t points
out that two such acquisitions were
refused by the Board of Estimate.
whereupon the commission went to the
Appellate Division, with the result
that the case went to the Court Of
Appeals. The Board OF Estimate ap-
pealed from the decision of the APP
pellate Division granting these requi-
sitions.
Points of Attack Taken Up.
The opinion continues in full as
follows:
THE validity of these orders is at.
tackled upon various grounds. which in
the last analysis resolves itself into an
assertion that the entire act under which
they were made is unconstitutional.
The principal and substantially the main
attack Is upon an alleged violation OF
Article X. section q Article XII. Sec
tion ., and Article III, Section 49,
article X. Section 2. provides that:
'All city, town and village officers. whose
election or appointment by the electors
Of such cities, towns and villages. or of
some division thereof, or appointed by
such authorities thereof, as the Lesis-
lsture shall designate for that purpose
article XII. Section 2. classifies the
cities of the State according to popu'a-
tion as determined by the last State
enumeration as from time to time made.
az follows: The first class includes all
cities having population Of 1850 or
more the second class, all cities having
a population Of $4,000 and less than
5000; the third class. all other cities.
Laws relating to the property. affairs
81 government of cities. and the several
departments thereof. are divided into
general and special city laws general
city laws are those which relate to all
the cities of one or more classes special
city laws are those which relate to
single city, or to less than all the cities
OF class. Special city laws shall not
re passed except IN conformity with the
provisions of this section Then fol-
lows n provision to the effect that after
a special city law has been passed by
beth branches Of the Legislature. the
house in which 1t originated shall i'm
yy,ediately transmit a certified copy
thereof to the Mayor OF such city and
Within fifteen days thereafter the Mayor
shall return such bill to the house from
which it was sent. with statement that
It is either accepted or rejected.
Article III. Section 1S. provides,
among other things. that: The Legis-
lature shall not pass private or local
bill In any OF the following: Granting
to any corporation, association or indi-
v:dual tho right TO lay down railroad
tracks . The Legislature shah
yass general laws providing for the
cases enumerated In this section and cor
all other cases which in It's Judgment
may be provided for by general laws
"In considering whether an act Of the
Legislature be constitutional the history
connected with its origin must be taken
into account. The Public Service Com
missions law was passed in 1907 (chap.
f29). 1t took the place Of the Rapid
Both of these acts as originally passed
Eoht OF these acts as originally passed
have been amended from time to time
down to the Legislative session OF 1921.
Transfer of Powers.
'sThe Public Service Commissions law
ers OF the commissioners. referred TO In
the rapid transit act should be trans
ferred, first, to Ave public service COM
rnissioners Of the First District. then to
one transit construction commissioner.
and finally to three transit commits
sioners.
by section "A of the act Transit
Commission is created for cities having
a population Of over a million inhabi-
1t.,xx 20. az. laG ~ IN r
Federal census or State enumeration. In
this commission is vested the power to
regulate railroads and street railroads
therein and there is also given to 1t
all the powers and duties given to the
Board of Rapid Transit Railroad Com
nissioners, the Public Service Commits
sion OF the First District. and the
Transit Construction Commissioner In
other words. there was given to the
Transit Commission, by the act under
consideration. all OF the powers there
tofore possessed by bodies having con- ]
troll OF rapid transit. In so far as the
power has been delegated by the State
to q commission created by IL, to de-
mand and receive appropriations from
the Board OF Estimate and Apportion-
ment for the purpose OF enabling it
properly to perform the duties imposed
upon 1t, 1 do not believe II can be Sc
1lOuSiy QUESTIONED Dul tndt tne ACT lS
a valid legislative enactment.
I'VE are brought. therefore. directly
to consideration of the validity OF
the orders appealed from. II such va
lidity alone be considered. then the
question presented Is very narrow
one, viz: Was It the duty OF the Board
of Estimate and Apportionment, upon
receiving the acquisitions from the
Transit Commission. to make the ap-
propriations requested, To this ques-
tion there can. as 1t seems 70 me. be
but one answer. II was its duty to do
so. The act 80 declares. In making
the appropriations the board acts min
isterially. 1t has no discretion as 10 the
amount to be appropriated.
Board Would Be Blocked.
"The purpose of this provision in the
act is obvious. II Is to prevent the
Board of Estimats and Apportionmen.
from defeating the purposes OF the &C:
by Withholding appropriations. The
board having neglected or refused to
make the appropriations called for the
commission was authorized TO apply
TO the court for what I'm effect was
psremptory mandamus to compel IL 20
do so.
1T Is suggested that this provision
of the act which permits the commits
sion TO apply 20 the Appellate Division.
where the board neglects and refuses
20 make appropriations. for an order
compelling Il TO do 40 makes the ac.
unconstitutional. in that II deprives the
court of discretion: that u must grant
the order In any event But this Is no.
so. IT, may grant or refuse the order
a.. -.