Chapter 11: Commission of 1894
Rapid Transit in New York City and in the Other Great Cities · Chamber of Commerce, 1906
Personnel of 1894 Commission. The Act of 1894 was signed by Governor Flower on May 22, of that year. It substituted a new rapid transit commission for that created by the Act of 1891, and provided that it should be composed of the Mayor, Comptroller and the President of the Chamber of Commerce, and of William Steinway, Seth Low, John Claflin, Alexander E. Orr, and John H. Starin. While it left unmodified the provisions of the Act of 1891, authorizing the Board to grant additional franchises to existing railroads, it provided that the Board should either adopt the plans prepared by the preceding Board, or adopt new plans and obtain the consents of the local authorities and of the property holders, or the substituted consent of the Supreme Court. It required that, after either re-adopting the old plans or making new ones and obtaining the consents, the Board at the next general election should submit to the qualified electors of the city "the question whether such railway or railways shall be constructed by the city and at the public expense." The act provided that if such question were decided in the negative at the election, the Board should proceed to sell the franchise to construct and operate such railroad to some private corporation as prescribed by the Act of 1891.
Popular Vote To Be Taken. The vital portions of the law depended upon the vote being cast in favor of municipal construction of the road. The new provisions were to the effect that if the question were determined in the affirmative at the election, the rapid transit railroad should be constructed at the public expense, and should be and remain the absolute property of the city, and that the Rapid Transit Commission should either provide for the construction of the railroad according to the routes, plans, and specifications adopted prior to the election, or "should change and modify the said routes, plans, and specifications" or adopt other and new routes, plans, and specifications, as they might see fit.
Contractor's Obligation. The act further provided that, after establishing the routes and plans for the railroad and obtaining the consents, the Board should, after advertising for 84 proposals, enter into a contract with some person, firm, or corporation for the construction of the road for the city and at its expense. The contractor was to be required to operate the road, as the lessee of the city, for a term of not less than thirty-five nor more than fifty years, to be specified in the contract, at an annual rental sufficient to pay the interest upon the bonds to be issued by the city to raise the money necessary to build the road, and one per cent. in addition thereto. The equipment was to be supplied by the contractor at his own expense. As security for the performance of the entire contract, the contractor was to furnish a bond to the city in an amount to be determined by the Board; the city was to have a lien upon the equipment furnished by the contractor; and the contractor was also to deposit the sum of $1,000,000 with the Comptroller, which was, however, to be returned when the railroad was constructed and equipped. The details of construction and operation were left to the discretion of the Board, with the injunction that such matters should be provided for in the contract. The Board was also to supervise the construction and operation of the road. The equipment of the road was to be exempted from taxation.
The city was to issue its bonds to raise the funds necessary for the enterprise, but the total issue should not exceed $50,000,000.
Organization of Commission. The new Rapid Transit Commission held its first meeting June 8, 1894, and organized by the election of Alexander E. Orr as president. At the same meeting Mr. Orr, who had been elected President of the Chamber of Commerce, and had thus become an ex-officio member of the Board, as well as being named by the statute an individual member thereof, resigned the individual appointment, and John H. Inman was elected to. fill the vacancy thereby created. Subsequently Mr. Starin was elected vice-president. William Barclay Parsons was appointed chief engineer, and Henry R. Beekman and Albert B. Boardman counsel.
The Board soon became convinced that several sections of the Act of 1894 required amendment, partly to eliminate certain provisions which were not in the original draft as prepared by the committee of the Chamber of Commerce, and partly to provide for various contingencies which had not been foreseen when the bill was prepared, including the plan to build pipe galleries along a portion of the route.
Amendments to Act. The amended statute was passed in 1895. It provided that the city should extinguish all easements of abutting property holders that might be affected by the construction of the road, thus guaranteeing the contractor against the class of litigation which had proved so serious to the elevated railroads, and authorized the city to expend the additional sum of $5,000,000 for that purpose.
The Board could permit the contractor to postpone the construction of any part of the railroad as planned until such time as, in the judgment of the Board, the interest of the city demanded.
A vote of six members of the Board was sufficient for the granting of additional franchises to existing railroads; the former act required a unanimous vote. But the act provided that any such grant should require the corporation receiving it to make proper compensation to the city, and that such compensation should be subject to re-adjustment at the expiration of successive periods to be fixed by the Board, none of which should exceed 35 years.
People Vote For Municipal Constrution. After careful consideration of the situation the Board decided that an effective solution of the rapid transit problem could only be obtained by the construction of underground railways; and that the routes and plans adopted by the former Commission were not satisfactory if. the railroad was to be constructed by the city within the limit of cost prescribed by the statute. But it was found that, under the statute, the question of municipal construction could not be submitted to popular vote until after the Board had either re-adopted the routes and plans of the former Commission, or had adopted new routes and plans and procured the necessary consents. The latter method would have taken so much time that it would have been impossible to have submitted the question to vote at the general election in the fall of 1894. The Board learned, however, that it could provisionally re-adopt the routes and plans of its predecessors and, if the vote proved favorable to municipal construction, could alter the plans or adopt entirely new ones. Before the election the Board issued a statement explaining the situation and announcing their intention, in case of an affirmative decision, to consider the question of routes and plans de novo. The result of the election showed an overwhelming majority in favor of municipal construction.
Elm Street Route. The Board discussed early the advisability of adopting the Elm street route, but the general opinion of the members was that the commercial advantages of a line under Broadway would more than offset the difficulties and expense of building a road beneath its surface. It was felt that the cost of construction on the Broadway route would be less then than at any future time, and that, sooner or later, a Broadway line must be provided. Therefore the route adopted by the former Board was thought to be the best, provided a branch could be selected in extension of the East-Side line to the north, as a substitute for the Madison avenue line recommended by the earlier Commission, which had been rendered unavailable by the Act of 1892. It was thought that it would be possible to extend the Fourth avenue route north from Fortieth street under the Grand Central Station, and under Fourth avenue to Ninety-seventh street, where it would become an elevated structure to be erected on either side of the Harlem railroad and then to and across the Harlem River.
Preliminary Studies. Concerning the nature of construction, the Board believed that the plans adopted by the former Commission were wise; except that it was desirable to increase the width of the road as a measure of safety, and to omit the requirement that the work under Broadway should be done without disturbing the surface. This preliminary study included the making of maps showing all the underground pipes and conduits, and the foundations and vaults of all the buildings along the proposed routes. In addition a thorough examination of the subsoil was made.
Pipe Galleries. The Board came to the conclusion that it would be advisable to construct pipe galleries on either side of the road along certain sections. While it was known that these would encroach upon private vaults and would add materially to the cost, the opinion was held that, as there must be a costly re-location of the pipes, it would be wiser and less expensive in the end to construct such galleries as a part of the general plan.
Board of Engineers. In forming a tentative plan the Board was not unmindful of the necessity of keeping the cost within the prescribed limit, and, in order to be certain upon this point, the plans were submitted to a committee of experts composed of Abram S. Hewitt, Thomas C. Clarke, Charles Sooysmith, Octave Chanute, and Prof. William H. Burr. The report approved the estimates of the engineer that the construction, if carried to the city line on both the East and West Sides, would cost $50,000,000. It also approved the suggestion of the chief engineer that the subway should be widened from the plans of the previous Commission from 44 to 50 feet for a four-track road, and it also was of the opinion that a separation on Broadway of the local and express lines was practicable and wise.
In answer to the question as to whether any better solution of the problem than had been already brought forward could be suggested, the board of experts advised a change in the route by substituting Elm street, Lafayette Place and Fourth avenue as the route between City Hall Park and Fourteenth street. The board of experts also recommended the construction of four tracks under Fourth avenue to and under the Grand Central Station, and thence under Madison avenue to Ninety-seventh street. Other changes of less importance were also suggested.
Routes. The Commission was now called upon to choose between the Broadway and Elm street routes. As has been already explained, all of the former Commissions and all of the private companies favored the former route, all holding the opinion that the engineering difficulties and increased cost were more than compensated for by the superior advantages of that location. This was not the first time the Elm street line had been advocated, but it was the first time it had come before a rapid transit commission for serious consideration.
Broadway Route. At that time the plan to widen Elm street seemed doomed to indefinite delay. It was, therefore, thought best to adopt the Broadway route. This began at a loop at the Battery, passed under Broadway to Fifty-ninth street; thence under the Boulevard to One-hundred-and-twenty-fourth street; thence by viaduct to One-hundred-and-thirty-fourth street; and thence under the Boulevard and Eleventh avenue to One-hundred-and-eighty-fifth street. Also a loop at City Hall and a connection with the Brooklyn Bridge. A second line diverged from the other at Fourteenth street and ran under Fourth and Park avenues to Ninety-eighth street; thence by viaduct across the Harlem (by bridge), to One-hundred-and-forty-sixth street. There were to be four tracks from Broadway and Park place to One-hundred-and-thirty-fifth street on the West Side; and four tracks on the East Side from Union Square to the Grand Central Station. Elsewhere there were to be two tracks. All tracks were to be on the same level and of standard gauge. Each track was to be allowed 12.5 feet in width.
Tunnel. The entire line was to be in tunnel, with the exception of the viaduct on the Boulevard from One-hundred-and-twenty-fourth to One-hundred-and-thirty-fourth streets, and the east side line from Ninety-eighth street northward. North of the Grand Central Station there were to be two separate tunnels along Fourth avenue as far as Ninety-sixth street. The Harlem was to be crossed by a double-track drawbridge.
Broadway Route Not Allowed By Court. One of the most interesting and important legal contests in the history of the Commission occurred in 1895. The importance of the decision of the court will be appreciated from the statement that it compelled the Commission to change the route from Broadway to Elm street. The consent of the local authorities to the construction and operation of the road along the lines just mentioned had been obtained; but it was found impossible to get the consent of the property owners, and therefore the substituted consent of the Supreme Court became imperative under the terms of the statute. The Court refused to consider the question at all, and entered an order to that effect in October, 1895. This order was reversed by the Court of Appeals, and the Supreme Court was directed to consider the application upon its merits. The latter Court then appointed Frederic R. Coudert, George Sherman, and William H. Gelshenen Commissioners to take testimony and report whether the road should be built. The testimony was exceedingly thorough, covering every possible aspect of the question.
In March, 1896, the Commission appointed by the Court unanimously reported that the road ought to be built.
Road Must Cost Less Than $50,000,000. Two months later the matter was argued before the Supreme Court, which unanimously refused to confirm the report of its Commissioners. The opinion was based upon the belief that the road when finished would not furnish an adequate system of rapid transit from one end of the city to the other; that it was doubtful if the road could be built with the money at the command of the city; and it was the opinion of the Court that the expenditure of such a vast sum would do away with the city's power to engage in any other public work, and might possibly so impair its credit that it could not recover in many years. It was plain that the Court would not sanction any road on the Broadway route, nor an underground road on any other route, unless it extended from one end of the city to the other, and it was shown that the total cost would be less than $50,000,000.
Rapid Transit Act Constitutional. Action was brought in the Supreme Court for the purpose of enjoining the city from using its funds for the construction of the road, upon the ground that the Act of 1894 was unconstitutional in many of its features, and therefore afforded no legal warrant for the proposed expenditure. This action was carried to the Court of Appeals and there decided in favor of the city. As explained in the first report issued by the Rapid Transit Commission, these decisions set at rest the vital question of the constitutionality of the legislation underlying the rapid transit enterprise, and entirely justified the wisdom and foresight with which the scheme had been devised.
The action of the Appellate Division of the Supreme Court, in refusing consent to the construction of the road upon the Broadway route, led to heated discussion of the subject in the press and elsewhere. Persons standing high in the community urged the Board to continue the work, and, if possible, find a solution of the problem committed to it. The report of the Commission says:
Opinion of Commission. "Although the reasoning of the judges seemed, at first sight, to amount to an absolute prohibition of municipal construction on any terms, yet further consideration led to the conclusion that all hope of a successful issue need not be abandoned. The action of the Court might be construed as being merely a condemnation of the particular plan presented for its consideration; and in so far as the opinions seemed to foreshadow a refusal on the part of the Court to consent to any practicable plan of municipal construction, they were capable of being regarded as so far extra-judicial as not to be binding upon the future action of the Court. The Court, indeed, might be expected, in view of the popular demand for some system of rapid transit, to consider with an open mind any new plan which did not conflict too seriously with the views held by its members, as outlined in the two opinions rendered."
"Urged by these considerations, and by an anxious desire to use every possible effort to carry into effect the important duties with which they were charged, a majority of the members of the Board concluded, after a period of hesitation, to make still another effort to find some solution of the problem before them."
Manhattan Railroad Application. "Following closely upon the announcement of the fact that the Rapid Transit Board would continue its efforts to secure the construction of a rapid transit railroad for and at the expense of the city, came an application from the Manhattan Railway Company that the Board would authorize it to build elevated railroads over a number of additional streets."
"This application was vague and indefinite in some respects, and, in still others, it sought privileges which the Board had no power to grant. A communication was sent to the railroad company on August 6, 1896, pointing out these defects and suggesting that an amended application be filed. No reply was returned to this communication, nor did the Board receive any further intimation that the Manhattan Railway Company desired to extend its lines until, after the lapse of eighteen months, it had become evident that the rapid transit railroad was likely to be constructed by the city."
During the year 1896 Mr. Low resigned from the Board, and Mr. Steinway and Mr. Inman died. Woodbury Langdon, George L. Rives, and Charles Stewart Smith were elected in their places.
Elm Street Route Adopted. After due consideration the Board decided to adopt, provisionally, the Elm street route for its main line. In this connection it is interesting to note that the late Abram S. Hewitt had, in 1888, laid down a route from the Grand Central Station to the City Hall identical with that now to be adopted by the Board. In his message to the Board of Aldermen, in January of that year, he said:
Route Formerly Proposed by Mr. Hewitt. "It is perfectly feasible, by an underground tunnel beginning in the neighborhood of Fifty-fourth street, to pass under the station and under the present tunnel from Forty-second street to Thirty-second street; and thence along the center of Fourth avenue to Ninth street; thence into Lafayette place; thence under Lafayette place, and thence through a new street, connecting with the Elm street improvement, which has been the subject of much discussion. It will be remembered that Fourth avenue, above Thirty-third street, is 140 feet in width, the additional 40 feet having been provided for the tracks of the railway. In opening the new street from Lafayette place to the City Hall the same width might be adopted. This would enable the four tracks to be constructed in the center of the street through an open cut, for which 50 feet would be required, leaving 90 feet between the two sides, or 45 feet of street and sidewalk on each side. From Lafayette place along Fourth avenue to Thirty-second street the four tracks would be made in a subway. The open-cut portions of the route would, of course, require no provision for ventilation or light."
Four Tracks. "It will be observed that provision has thus been made for four tracks, extending from the Grand Central Station to the terminus of the Brooklyn Bridge. Between the City Hall and the Grand Central Depot two tracks will be used for express trains stopping only at the Grand Central Station. The other two tracks will be used for trains stopping at Grand street, Bleecker street, Astor place, Fourteenth street, Twenty-third street, Thirty-third street and Forty-second street. This train will take intermediate passengers who may desire to catch trains at the Forty-second street station. Two of the tracks will then proceed to the Harlem River, making the necessary stops, and thence under the Harlem will provide frequent transit for the eastern, portion of the city and of the annexed district. The other two tracks will turn to the left, under Forty-sixth street, to Broadway, under which they will pass to Fifty-ninth street, at which point the Boulevard is reached. Here four tracks should be laid in an open cut extending in time as far as may be desirable. Two of these tracks will be used for through trains and two for local distribution."
On January 14, 1897, a resolution was adopted establishing the present route and plan as follows:
Present Route Adopted. Beginning at the intersection of Broadway and Park row, under Park row to Center street, to New Elm street, to Lafayette place, and thence under Fourth and Park avenues to Forty-second street, to Broadway, to Fifty-ninth street, and thence under the Boulevard to One-hundred-and-twenty-fourth street; thence by viaduct to One-hundred-and-thirty-fourth street; thence under the Boulevard and Eleventh avenue to One-hundred-and-ninetieth street, and thence under or over private property, as may be most convenient, to the southeast end of Ellwood street, and thence over Ellwood street to Kingsbridge avenue or Broadway; thence to Riverside avenue to a point within 500 feet of the present Kingsbridge station of the New York & Putnam Railroad.
This route included a loop at City Hall Park and suitable tracks and connections to the Post Office. There were also to be tracks and connections with the yard and tracks of the Grand Central Station.
The second route diverged from the first at One-hundred-and-third street and the Boulevard and thence to One-hundred-and-fourth street; thence under Central Park West and Central Park to the intersection of Lenox avenue and One-hundred-and-tenth street; thence under Lenox avenue to One-hundred-and-fortieth street; to and under the Harlem River and private property to East One-hundred-and-forty-ninth street at its intersection with River avenue; thence under East One-hundred-and-forty-ninth street to a point near its intersection with Third avenue; thence to Westchester avenue, and thence by viaduct along Westchester avenue to the Southern Boulevard; thence to the Boston Road, and thence over the Boston Road to Bronx Park.
Plan of Construction. The general plan of construction was as follows:
For the route under Park row and City Hall park, two parallel tracks; from the City Hall loop to One-hundred-and-third street, four parallel tracks; north of One-hundred-and-third street both routes to have two tracks.
All tracks were to be on the same level, except that "wherever required by special necessities of surface or sub-surface structures, or other special or local necessities, and for the purpose of avoiding grade crossings at the southerly end of Center street and the One-hundred-and-tenth street junction, any one or more of the tracks may be depressed below the level of the other tracks to a depth of not more than 20 feet."
The tracks were to be of standard gauge, and for each track there was to be 12-feet width of tunnel. Wherever the tracks changed from tunnel to viaduct or the reverse, the change was to be made so as to occupy or obstruct the use of the surface of the street to the least possible extent consistent with the proper gradient for the tracks. The roof of the tunnel was to be as near the surface of the street as street conditions and grades would permit.
Width of Tunnels. The maximum widths of the tunnels were to be as follows: Under Park row and the City Hall loop, 38 feet; from the loop to the commencement of Elm street, 50 feet; from there to Lafayette place, 68 feet; to One-hundred-and-third street, 50 feet; for both routes north, 25 feet; the tunnel under the river and its approaches to be 35 feet.
Wherever necessary for the support of the street surface, the roof of the tunnel was to be of steel or iron girders with brick or concrete arches supported by iron or steel columns and masonry walls, or a masonry arch. Viaducts were to be built with a width of 12.5 feet for each track, and with an additional width of 3 feet on each side for outside footways. The viaducts were to be built of metal or masonry, or both.
The stations and station approaches were to be at the intersection of the streets, and located under or over the streets, or on private property, as required by the situation. Along the Boulevard openings were to be provided in the surface of the street for the purpose of ventilation and light; no opening to exceed 20 feet in width by 50 feet in length.
Method of Operation. The general mode of operation required was by electricity, or some other power not requiring combustion within the tunnels or on the viaducts; the motors to be capable of moving trains at a speed of not less than 40 miles an hour for long distances, exclusive of stops. The manner of construction was to be by tunneling or open excavation.
It was believed that this scheme of construction would meet the requirements of the Supreme Court, and for the following reasons which were presented in the first report of the Board:
"In the first place, the road was estimated to cost about $35,000,000, and that this estimate was correct time has conclusively proved. In the second place, it ran from the City Hall-- or near the southerly end of Manhattan Island-- to Kingsbridge as the terminus of one branch, and to Bronx Park as the terminus of the other. At Kingsbridge a physical connection with the New York Central lines to Yonkers, and beyond, was easy. At Bronx Park the northerly limits of the city were nearly reached; and if the Court had insisted on a further extension here, it would have cost little, comparatively, to extend the line still farther by an elevated structure through the Park."
"The necessity of avoiding Broadway, below Thirty-fourth street, so as to meet the views of the Court, compelled the use of Fourth avenue and Elm street for the main stem, and the introduction of an awkward alignment from Fourth avenue to the westward along Forty-second street to Broadway."
An East Side Line Too Expensive. "It was thought impossible in this scheme to provide for a line on the East Side from the Grand Central Station to the Harlem. The cost of such a line would have brought the total expense up to figures that the Supreme Court was not expected to sanction, even if the West-Side line had been made only a two-track road. A four-track road, carried as far north as possible, was regarded by the Board as essential to real rapid transit. A two-track road forbids the use of express trains, and necessarily reduces the speed of all trains to the speed of the slowest. Upon the fullest consideration, therefore, the Board determined to abandon an East-Side line, and to provide for a four-track service to the neighborhood of One-hundredth street; and from that point to send off an easterly branch which should follow the line, not of Fourth, but of Lenox avenue, and from the termination of that street should cross the Harlem."
"This route appeared to the Board the best that could at that time he devised to meet the conditions imposed; and it seemed probable that, if the system proved a success, additional lines might subsequently be built that would supply some rather obvious defects in the plan adopted. Moreover, the Board believed that the section of the city east of Central Park was already better provided with transit facilities than most other quarters."
Road To Be In Tunnel. "In one very important particular the plan of 1897 involved an important departure from the plan of 1895. The entire line of the road on Manhattan Island was to be in tunnel, except for the short distance between Fort George and Kingsbridge. In the Borough of the Bronx the road was to be in tunnel from the Harlem River to a point on Westchester avenue some distance east of Third avenue. The Board was not willing to gain in cheapness by sacrificing important streets to elevated railways."
"It has already been pointed out that the southerly terminus of the route thus adopted was at Park row, and this fact is also to be explained by that statement that, although the Board was of the opinion that the route ought to be extended along Broadway to South Ferry, it was unwilling, in view of dicta contained in the opinions of the Appellate Division, to risk a condemnation of its entire plan, unless the owners of property upon that portion of Broadway affected by its route should, by consenting to the construction of the railroad, render unnecessary a recourse to the courts."
Extension to Battery Place. As soon as the intention of the Board became known there ensued an agitation among the property owners along lower Broadway in favor of the extension of the road to the Battery. In a few weeks a petition was presented to the Board, signed by a majority, in value, of all the property owners, asking for the extension of the road. The Board therefore adopted a resolution on April 1, 1897, providing for a two-track extension to Battery place, with a loop under Battery Park, Whitehall and State streets. Afterward this extension was abandoned, for the time being, owing to the refusal of the Park Commissioners to grant consent to its construction.
Bond of $15,000,000. The approval of property owners having been refused, application was again made to the Supreme Court and a commission was appointed in July, 1897. This commission reported unanimously in favor of the plans. A majority of the Court was ill favor of the motion, but, as the opinion said, to give "some assurance that the powers of the Rapid Transit Commissioners in respect to security should be exercised so as to protect the interests of the city in a substantial manner," exacted, as a condition precedent to the entry of an order confirming the report, a requirement that the Rapid Transit Board should file a stipulation that, upon awarding any contract for the construction and operation of the railroad, "the penalty of the bond specified in section 34 of the rapid transit act will be fixed at not less than $15,000,000."
Bond Excessive. It needed no extended acquaintance with the subject to perceive that, if the Court persisted in exacting a literal compliance with these conditions, its action would amount to an absolute veto of the entire plan of municipal construction and ownership. The Board appointed a sub-committee to ascertain if such a bond could be obtained and to report what security in money, bonds, or otherwise could probably be obtained from responsible bidders. The Greater New York Charter went into effect January 1, 1898. The charter compelled the city to assume the indebtedness of all the consolidated territory, with the result that the debt incurring capacity of the new city was reduced to a very narrow limit. But this proved to be only temporary, since the increase in the assessed valuations of property in the county of New York, which was shortly made in order to equalize its value with the assessed valuations in other portions of the city, resulted in giving such a margin as would suffice for the construction of the rapid transit railroad without intrenching upon the ten per cent. limitation imposed by the charter. Another result of the consolidation was a tendency to array the influence of Kings and Richmond counties, and a portion of Queens, against the plans. At that time it seemed that the endeavors of the Board would be defeated or at least doomed to indefinite postponement.
Application of Elevated Company. The Manhattan Railway Company now made public its intention to extend its system of elevated railways as soon as it could obtain permission from the Board, or from the Legislature to do so.
The Metropolitan Street Railway Company withdrew from the contest by announcing to the Board that, as matters then stood, it could not be expected to compete for the contract to construct and operate the proposed road. The position assumed by the Elevated Company made it certain to the Board that not only the Metropolitan Company but other responsible bidders would hesitate before making proposals for the contract to build and operate the road. In July, 1896, the Elevated Company presented an application to the Board. This application is reviewed in the report of the sub-committee appointed by the Board in the following language:
Application Reviewed By Board. "The application of the Elevated Railway Company was expressly conditioned upon its receiving immunity from claims for damages; it asked for grants of street surface franchises; it asked for franchises including 30 miles of new route, besides additional facilities upon existing routes, but did not pledge the company to any actual extension of its system or other relief within any given period of time, and it made no offer of any rental. The answer of the Board pointed out that the application was not in a form which permitted definite acceptance; that the Board had no power under the law to assure to a private corporation building an elevated railroad immunity from damages; that under the statute rental must be paid on extensions; and that the Board was expressly forbidden by the statute to grant any right to construct a railroad on the surface of a street. It was further pointed out that the granting of any application not limited in time would be, in substance, to give an option to the Elevated Railway Company to extend or improve its system whenever it should become ready to do so, without imposing upon it any corresponding obligation, thus suspending meantime the practical possibility of relief from any other quarter."
Rapid Transit Elevated Asked to Amend Application. "The Board concluded its communication by expressing the hope that the Elevated Railroad Company, in view of the exceptional privileges which it had received from the city, and the exceptional advantages which it then enjoyed for the extension of rapid transit facilities, would promptly amend its application so that the Board could lawfully deal with it; and the Board promised that, upon receiving such an application, it would reach a determination upon it without delay. To this communication, made nearly eighteen months ago, no answer has been received."
The sub-committee inquired into the possibility of securing a bond of $15,000,000, as required by the decision of court. The report states that: "It is not possible for the Board, until it shall have power to propose a contract, to reach a definite conclusion as to what amount of bond ought to be exacted from the successful bidder." At that time the terms of the contract had not been fixed, and upon them much depended; moreover, the length of the lease, character of the requirements for operation, and the probable value of the equipment to be furnished by the contractor, were all elements demanding consideration. Therefore, the committee said:
City Amply Protected. "If a bond for $15,000,000 be required in the technical form prescribed by section 34, the requirements will, in the opinion of your committee, operate as a substantial prohibition of the enterprise."
"In the opinion of your committee, it was not the intention of the people of the city, or of the Legislature, that the Board should attempt the impossibility of eliminating all risk to the city in carrying out the rapid transit plan. Any future construction involving expenditure of money inevitably involves risk. Municipal construction was not justified, and could not, under the constitution, be justified for the purpose of making money. Its constitutional justification lay in the great public necessity of the city.... But it must be remembered that the rental to be paid is the full amount of the interest which the city is to pay upon its bonds, and that, in addition, there is to be paid at least one per cent. per annum, with a conditional deduction for the first five or ten years. This one per cent. is in effect a sinking fund, the result of which will ultimately be to give, without expense to the city, the rapid transit road completely constructed, the entire outlay, as well for principal as for interest, being met by the rental payable by the contractor."
Large Bond Prohibitive. "If, however, the Court shall require a stipulation as to security now, the following considerations may be urged: In the first place, it may well be contended that this Board, as a public body, have no right to enter into any contract as to the future exercise of their powers. Even if the Board can with propriety give a stipulation as to their future action, the facts upon which to form a sound business judgment as to the amount of security to be exacted are as yet not fully known-particularly as the form of contract to be proposed to bidders cannot be settled in advance of the formal consent of the Court. In any case, a joint and several bond for $15,000,000, running for the whole term of the lease, and on which the sureties must justify in $30,000,000, is practically prohibitive, because satisfactory sureties could not probably be found. Even if found, the expense and difficulty of obtaining such surety would operate to limit competition and tend to make the cost of construction larger than it need be, and without any compensating advantages. The attempt to exact too large a bond, continuing long after the road is finished, would only result in defeating the whole, scheme of municipal construction and ownership. If the Court will consent to limit its requirements to security for construction-leaving it to the Board to fix the amount of the continuing bond-and will permit the giving of several bonds, such security for a very large amount could be obtained. But even for construction alone, a bond for fifty per cent. of the estimated cost of the work would be unnecessary-especially in view of the requirement of a cash deposit of $1,000,000 and the proposed retention of a large percentage of the cost of the work until the road is fully constructed and equipped-and it is also contrary to the practice prevailing in all city or government work."
Bond Reduced. Acting upon the advice of its committee the Board made application to the Court for the modification of the terms imposed by it. The Court still insisted that the Board must exact a bond for $15,000,000, but it consented that the liability of the sureties as to $14,000,000 thereof should terminate when the road should have been completed and equipped; and that the permanent liability upon the bond might be limited to $1,000,000. These terms, although still severe, were not necessarily prohibitive, and the Board, therefore, entered into the stipulation required by the Court.
Again the matter was taken up with the Manhattan Railway Company, and a sub-committee was appointed to examine the matter. A summary of seven franchises the Board was willing to grant was submitted to the company. The Manhattan officials did not have the plans elaborated, made no estimates of cost, made no suggestions regarding rentals to be paid the city, and continually pleaded for more time for investigation and consideration. They constantly overlooked the fact that the question had been before them for several years, and every conceivable aspect of the rapid transit problem, as far as elevated roads were concerned, had been discussed with the present and former commissioners.
Seven Franchises Offered to the Manhattan. The sub-committee's report concluded as follows:
"If the Manhattan Company shall accept the seven franchises thus proposed and carry them out according to their terms, the rapid transit facilities of the city will be materially improved. The rapid transit problem, however, will not be solved. On the contrary, it is our belief that before the periods described in the franchises shall have expired, the necessity will be even clearer than it is now for an additional rapid transit system, having the enormous advantages incidental to a system carried through tunnels constructed on the improved modern method. This will, in our opinion, be the case, notwithstanding the increase of the capacity and traffic of the Manhattan system. If the Manhattan Company shall exercise all the franchises now proposed to be tendered it, it will be able to carry a very much larger number of passengers and to carry the passengers at a materially increased speed. And as our proposition is that the Manhattan Company shall be permitted to take any one or more or all of the franchises, the company is enabled, if it does not see its way to undertake all of these obligations, still to undertake such of them as shall give material relief. If the Manhattan Company shall, pursuant to the statute, accept all the certificates tendered by the Rapid Transit Board, the city and the public will have assurance of a reasonably prompt and material improvement of its transit facilities."
Franchises Refused. The Manhattan Company refused to accept any of the franchises. It was unwilling to undertake the work of extending its traffic facilities. Its last opportunity had come and gone. It was controlled apparently by a belief that no solution of rapid transit problems could be obtained without its co-operation, and that in the end privileges would be granted to it on its own terms. A procrastinating policy had been successful with former commissions, and why should it not be in this case?
Other Efforts of Board. Still other attempts were made by the Board to provide rapid transit by enlisting the assistance of those already concerned with railroad transportation within the city. Interviews were had with Cornelius Vanderbilt and with Mr. Depew, president of the New York Central & Hudson River Railroad Company, and with Mr. Clark, president of the New York, New Haven & Hartford Railroad. The Board presented to those gentlemen the advantages which it then believed belonged to the rapid transit plan, and which experience has since demonstrated did in fact so belong, and urged the value of co-operation with the Board. The Board was, however, unable to convince them. Later, like conferences were had with Mr. Whitney and others representing the Metropolitan Street Railway interest, and with capitalists representing other large railroad interests. But until the actual letting of the rapid transit contract in January, 1900, the Board was unable to satisfy any responsible persons in control of railroad interests within the City of New York that they could undertake the rapid transit contract with any fair chance of profit.