NY RR L § 173 (2021)
2021 New York Laws RRD - Railroad Article 5 - Street Surface Railroads 173 - Condition Upon Which Consent Shall Be Given; Sale of Franchise at Public Auction.

§  173. Condition upon which consent shall be given; sale of franchise   at public auction.  The consent of the local  authorities  in  any  city   having  a  population of three hundred thousand or more must contain the   condition that the right, franchise and privilege of using  any  street,   road,  highway,  avenue,  park  or  public place shall be sold at public   auction to the bidder who will  agree  to  give  the  city  the  largest   percentage  per  annum of the gross receipts of such corporation, with a   bond or undertaking in such form and amount and with such conditions and   sureties as may be required and approved by  the  comptroller  or  other   chief  fiscal officer of the city, for the fulfillment of such agreement   and for the commencement and completion of its railroad within the  time   designated  by law and for the performance of such additional conditions   as the local authorities in their  discretion  may  prescribe.  Whenever   such  consent  shall provide for the sale at public auction of the right   to construct and operate a branch or extension of an existing  railroad,   such  consent  shall  provide  that  but  one  fare shall be exacted for   passage over such branch or extension and over the line  of  road  which   shall  have  applied  therefor; and further, that if such right shall be   purchased by  any  corporation  other  than  the  applicant,  the  gross   receipts from joint business shall be divided in the proportion that the   length  of  such  extension  or  branch so sold shall bear to the entire   length of the road whether owned or  leased  which  shall  have  applied   therefor  and  of such branch or extension, and that if such right shall   be purchased by the applicant,  the  percentage  to  be  paid  shall  be   calculated  on such portion of its gross receipts as shall bear the same   proportion to the whole value thereof as the length of such extension or   branch shall bear to the entire length of its  road,  whether  owned  or   leased.  The  bidder to which such right, franchise and privilege may be   sold must be a duly incorporated railroad  corporation  of  this  state,   organized  to  construct,  maintain and operate a street railroad in the   city for which such consent may be given; but no such corporation  shall   be  entitled  to bid at such sale unless at least five days prior to the   day fixed for such sale, or five days prior to the  day  to  which  such   sale  shall  have  been duly adjourned, the corporation shall have filed   with the comptroller or other chief fiscal officer of the city,  a  bond   in  writing  and under seal, with sufficient sureties, to be approved by   such comptroller or officer, conditioned that if such  right,  franchise   and  privilege  shall  be  sold  to such corporation, to pay to the city   where such railroad is situated the sum of  fifty  thousand  dollars  as   liquidated damages and not by way of penalty in the event of the failure   of  such bidder to fulfill the terms of sale, comply with the provisions   of this article pertinent thereto, and complete and operate its railroad   according to the plan or plans and upon the route or  routes  fixed  for   its   construction  within  the  time  hereinafter  designated  for  the   construction and completion of its railroad, and also conditioned to pay   to the corporation first applying for the consent, if it  shall  not  be   the   successful   bidder,  the  necessary  expenses  incurred  by  such   corporation prior to the sale pursuant to the requirements and direction   of the local authorities, within twenty days after such  sale  and  upon   the  certificate of the comptroller or other officer conducting the same   as to the sum or amount to be paid. Notice of the time, place and  terms   of  sale, and of the route or routes to be sold, and the conditions upon   which  the  consent  of  the  local  authorities  to  the  construction,   operation  and  extension of such street railroad will be given, must be   published by such local authorities for a least three successive  weeks,   at  least  three  times a week in two daily newspapers of the city to be   designated by the mayor. The comptroller or other chief  fiscal  officer   of  the city shall attend and conduct such sale and may adjourn the same    from time to time, but not more than four weeks in all,  unless  further   adjournments  should,  in  his discretion, be necessary by reason of the   pendency of legal proceedings, and shall cancel any bid if in excess  of   the  gross  receipts, leaving in force the highest bid not in excess, or   if the bidder shall not have furnished adequate security entitling  such   bidder  to  bid,  or  shall  otherwise fail to comply with the terms and   conditions of sale, and shall resell the consent and license in the same   manner as hereinbefore provided for the first sale. The bidder  who  may   build  and  operate such railroad shall at all times keep accurate books   of account of the business and earnings of such  railroad,  which  books   shall   at  all  times  be  subject  to  the  inspection  of  the  local   authorities.  In the event of the failure or refusal of the  corporation   operating  or  using  such  railroad to pay the rental or percentages of   gross earnings agreed upon, and after notice of not less than sixty days   to pay the same, the local authorities interested therein may  apply  to   any  court having jurisdiction upon at least twenty days' notice to such   corporation, and after it shall have had an opportunity to be  heard  in   its defense, for judgment declaring the consent and right to operate and   use  such  railroad forfeited and authorizing the sale again of the same   in the manner hereinbefore prescribed, provided, however, that  no  such   resale  of  any  such  consent  and  right  heretofore  granted shall be   authorized except upon the condition that the same shall be  subject  to   all  liens  and incumbrances existing on said railroads at the time such   forfeiture may have been declared. All consents hereafter given  by  the   local authorities, unless it be otherwise provided in such consent or in   some  renewal  thereof,  may be forfeited at the expiration of two years   thereafter. The board of sinking fund commissioners of  any  city  shall   have  power to reduce, compromise or release any obligation or liability   to the mayor, aldermen and commonalty of such city under the  provisions   of chapter six hundred and forty-two of the laws of eighteen hundred and   eighty-six,  or of this chapter, whenever, in the opinion of such board,   such release or compromise shall be just or equitable, or for the public   interest, the reason for any such release or compromise to be stated  in   the  recorded  proceedings  of  such  board.  No  lease  by  any company   organized under section  five  of  this  chapter  and  owning  a  right,   privilege  or  franchise  of using any street, avenue, highway or public   place for railroad purposes, which was sold  prior  to  May  nineteenth,   nineteen  hundred  and eight, under the provisions of this section, made   after said date to any street surface  railroad  company  which  is  not   subject  to  the payment of any percentage pursuant to this section, and   which is not organized for the purpose of operating a railroad in a city   having a population of three hundred thousand or more,  shall  be  valid   until  the  lessee  company  shall  have  filed  in  the  office  of the   department of state and in the office of the clerk of the  county  where   its certificate of incorporation is filed, its acceptance in writing and   under  its  corporate  seal  of  the  provisions  of this section as now   amended; and upon such acceptance  being  filed,  the  total  percentage   amount  thereafter  to  be  paid  annually  under this section and under   section one hundred and seventy-five of this chapter, shall  be  at  the   rate of five per centum of the gross receipts derived from the operation   of  the  roads  of  the  lessor  and  lessee companies considered as one   system. The lessee  company,  at  the  time  of  filing  its  acceptance   aforesaid,  shall  also file in the same offices a bond to the people of   the state, executed in duplicate by it and a surety  company  authorized   by  law  to act as surety on bonds and undertakings, in the penal sum of   fifty  thousand  dollars,  and  conditioned  for  the  faithful  payment   annually  of  the  total  percentage  aforesaid,  and such bond shall be   deemed to be a  full  compliance  with  the  condition  for  a  bond  or    undertaking  required  by  this  section  to  be  provided  for  in  the   conditions of the consent of the local authorities and  shall  supersede   any  such  bond  or  undertaking theretofore given. Whenever it shall be   desired  to  unite  two street surface railroad routes at some point not   over one-half mile from such respective lines or routes,  and  establish   by  the  construction  of such connection a new route for public travel,   and the corporation or corporations owning or using such railroads shall   consent to operate such connection as a part of a continuous  route  for   one  fare,  and  it  shall  appear  to  the  local authorities that such   connection  cannot  be  operated  as  an  independent  railroad  without   inconvenience to the public, but that it is to the public advantage that   the same should be operated as a continuous line or route, with existing   railroads,  or  whenever for the purpose of connecting with any ferry or   railroad depot, it shall be desired to construct an extension or  branch   not  more  than  one-half mile in length, of any street surface railroad   corporation, no sale of such franchise shall be made as provided in this   section, but any consent of the local authorities for  the  construction   and operation of such connection, extension or branch shall provide that   the  corporation or corporations operating such connection, extension or   branch shall pay into the treasury of said city annually the  percentage   provided   for  extensions  or  branches  in  section  one  hundred  and   seventy-five of this chapter, for the purposes, at  the  times,  in  the   manner and upon the conditions set forth in such section. Nothing herein   contained  shall be construed as superseding, repealing or modifying any   provision of the charter of any city, village or town, nor as  modifying   or affecting the terms of a certain contract bearing date January first,   eighteen hundred and ninety-two, entered into by and between the city of   Buffalo  and  the  various  street surface railroad corporations therein   named in said contract, nor as modifying or affecting  the  terms  of  a   certain contract bearing date the twenty-fifth day of February, eighteen   hundred  and  ninety,  entered into by and between the city of Rochester   and the street  surface  railroad  corporation  therein  named,  nor  as   modifying  or  affecting  any contract heretofore entered into between a   street surface railroad corporation and any city having a population  of   less  than  fifty  thousand,  town  or village regulating the payment of   percentages or paving of streets, and any such city, town or village, is   hereby authorized to enter into any  such  form  of  contract  with  any   street  surface railroad corporation, and any such contract entered into   before said date is hereby ratified and confirmed. The local authorities   may, in their discretion, make their consent to depend upon any  further   conditions respecting other or further security, or deposit, suitable to   secure the construction, completion and operation of the railroad within   any  time  not  exceeding  the  period  prescribed  in  this article and   respecting the character, quality or motive power  of  the  road  to  be   completed  and  respecting the grouping of streets, avenues and highways   into one route, or into several routes, for the purpose of a single sale   of the franchise, right or privilege for all the routes collectively, or   of the separate sale for each route or street, as said local authorities   may think expedient, and respecting the payment of the percentage agreed   to be paid at the sale upon all the lines  operated  by  the  successful   bidder  within  the  city  and  respecting  any  matter  involved  in or   affecting the computation of percentage payments and respecting the  use   of  the  railroads  to  be  constructed  under  the consent by any other   company and respecting the interchange of traffic and division of  fares   between  the company operating such railroads and any other company, and   respecting the application of  any  provision  herein  contained  as  to   carriage  of  passengers  for  single  fare  and  the  division of gross   receipts and the payment of percentages to the line leased  or  operated    under  contract  by  the applicant for an extension, and also respecting   any other matter concerning which, in their judgment, further conditions   would be for the public interest. Nothing herein contained  shall  apply   to,  or  affect  any  grant hereafter made under the provisions of title   one, chapter three of chapter three hundred  and  seventy-eight  of  the   laws  of  eighteen  hundred  and ninety-seven and the amendments thereto   known as the Greater New York charter.