RAPID TRANSIT ACT.

CHAP. 4, LAWS OF 1891.

AN ACT to provide for rapid transit railways in cities of over one million inhabitants.

SECTION 1. Commissioners of rapid transit; appointments; board constituted; vacancies.-In. cities having over one million of inhabitants, according to the last preceding national or state census, where rapid transit còmmissioners shall have been appointed since the first day of December, eighteen hundred and ninety, under the provisions of chapter six hundred and six of the laws of eighteen hundred and seventy-five, and the amendments thereto, by the mayor of any such city, said commissioners shall become commissioners of rapid transit under the provisions of this act. If no such commissioners have been appointed since the first day of December, eighteen hundred and ninety, and the date of the passage of this act in any city in this state containing a population of over one million inhabitants, according to the last preceding national or state census, then the mayor of such city may at any time after the passage of this act appoint five persons who shall be residents of such city, who shall be commissioners of rapid transit under the provisions of this act. The commissioners thus appointed are hereby constituted a board of rapid transit railroad commissioners, in and for the city in which they are appointed. They shall have and exercise the specific authority and powers hereinafter conferred, and also such other and necessary powers as may be requisite to the efficient performance of the duties imposed upon the said board by this act. If a vacancy shall at any time occur in any such board of rapid transit railroad commissioners, such vacancy shall be filled by the mayor of the city in which said board exists, by the appointment of a citizen of said city, who shall belong to the same political party as did the commissioner whom such appointee succeeds.

2. Oath of commissioners. Within twenty days after the passage of this act, in the case of commissioners who become such by its terms, and within twenty days after their appointment in the case of commissioners appointed under its provisions, each of the said commissioners shall take and subscribe an

oath faithfully to perform the duties of his office, which oath shall be filed in the office of the clerk of the county within which said board is appointed.

§ 3. First meeting of board; by-laws and rules; quorum; record of proceedings. Within thirty days after the passage of this act, in the case of commissioners who become such by its terms, and within twenty days after their appointment, in the case of commissioners appointed under its provisions, the said commissioners shall meet and organize as a board. The board when so organized, may frame and adopt by-laws not inconsistent with this act, and establish suitable rules and regulations for the proper exercise of the powers and duties hereby conferred and imposed, and may from time to time amend the same. Four members of the board shall constitute a quorum for the transaction of business, but a lesз number may adjourn meetings. The said board shall adopt a seal and keep a record of its proceedings, which shall be a public record and be open to inspection at all reasonable times.

§ 4. Board to determine necessity of railways and to fix routes; general plan of construction; location of routes; proviso as to consents; parks and certain streets excepted; tunnels under parks and crossing streets; elevated roads.— The said board upon its own motion may proceed, from time to time, to consider and determine whether it is for the interest of the public and of the city in which it is appointed, that a rapid transit railway or railways for the conveyance and transportation of persons and property should be established therein, and upon the request in writing of the local authorities of any such city at any time, the said board shall proceed forthwith to consider and determine the same questions, and in each case the said board shall conduct such an inquest and investigation as may be deemed necessary in the premises. If, after such consideration and inquest, the said board shall determine that a rapid transit railway or railways, in addition to any already existing, are necessary for the interest of the public and such city, it shall proceed to determine and establish the route or routes thereof and the general plan of construction. Such general plan shall show the general mode of operation and contain such details as to manner of construction as may be necessary to show the extent to which any street, avenue or other public place is to be encroached upon and the property abutting thereon affected, and the concurrent votes of at least

four members of the board shall be necessary for the purpose of determining and establishing such route or routes and plan of construction. The said board, from time to time, may locate the route or routes of such railway or railways over, under, upon, through and across any streets, avenues and lands within such city, including blocks between streets or avenues or, partly over, under, upon, through and across any streets, avenues and lands within such city and partly through blocks between streets or avenues; provided that the consent of the owners of one-half in value of the property bounded on and the consent also of the local authorities having control of that portion of a street or highway upon which it is proposed to construct or operate such railway or railways be first obtained, or in case the consent of such property owners can not be obtained, that the determination of three commissioners appointed by the general term of the supreme court in the district of the proposed construction, given after due hearing of all parties interested, and confirmed by the court, that such railway or railways ought to be constructed or operated, be taken in lieu of the consent of such property owners; except that no public park nor any lands or places, lawfully set apart for, or occupied by, any public building of any city or county, or of the state of New York, or of the United States, nor those portions of Grand, Classon, Franklin avenues and Downing street in the city of Brooklyn, lying between the southerly line of Lexington avenue and northerly line of Atlantic avenue, nor that portion of Classon avenue in said city lying between the northerly line of Lexington avenue and the southerly line of Park avenue, nor that portion of Washington avenue in said city lying between Park and Atlantic avenues, nor DeBevoise place, Irving place and Leffert's place, Lee avenue, Nostrand avenue, Waverly avenue, Vanderbilt avenue and Clinton avenue in said city of Brooklyn, nor that portion of the city of Buffalo lying between Michigan and Main streets, nor any part of Fifth avenue in the city of New York, nor that portion of any street or avenue which is now actually occupied by any elevated railroad structure, shall be occupied by any corporation to be organized under the provisions of this act for the purpose of constructing a railway in or upon any of such public parks, lands or places, or upon or along either of the said excepted streets or avenues. It shall be lawful for said commissioners to locate the route of a railway or railways, by tunnel under any such public parks, lands or places and to locate the route of any railway to be built, under this act, across any of the streets and avenues now occupied by an elevated railroad structure in the city of New York or across any of the streets or avenues excepted in this act at any point at which, in its discretion,

the board of rapid transit railroad commissioners may deem necessary in the location of any route or routes. Nothing in this act shall authorize the construction of an elevated railway on Broadway south of Thirty-third street, nor on Madison avenue in the city of New York. It shall not be lawful to grant, use or occupy, for the purposes of an elevated railroad, except for the purpose of crossing the same, any portion of the following named streets and places in the city of New York, that is to say: Second avenue below Twenty-third street; Nassau street; Printing House square, so called, south of Frankfort street; Park row, south of Tryon row; Broad street and Wall street.

§ 5. Transmission of plans, etc.; approval and consent of council; consent of local authorities; consents of property owners; value of property, how determined; proceedings if consent not obtained; notice of application for commissioners; appointment thereof, etc.; determination and report. After any determination by said board of any such route or routes and of any general plan of construction of said railway or railways, the said board shall transmit to the common council of said city a copy of said plans and conclusions as adopted. It shall be the duty of such common council upon receiving such copy of plans and conclusions to appoint a day not less than one week nor more than ten days after the receipt thereof for the consideration of such plans and conclusions, and the said common council shall, on the day so fixed, proceed with the consideration thereof and may continue and adjourn such consideration, from time to time, until a final vote shall be taken thereon as hereinafter provided. Within four weeks after the copy of such plans and conclusions adopted by the board of rapid transit railroad commissioners shall have first been received by said common council, a final vote shall be taken thereon, by ayes and nays, in the form of a vote upon a resolution to approve such plans and conclusions, and to consent to the construction of a railway or railways in accordance therewith. Upon the adoption of such resolution* a majority vote of all the members of the common council and the approval of the mayor, and in the case of the refusal or failure of the mayor to approve such resolution, then by a two-thirds vote of all the members of the common council, the said plans and conclusions shall be deemed to have been finally consented to and adopted, and such consent shall be deemed to be the consent of the local authorities of such city; provided, that where in any such city the exclusive control of any street,

* So in the original.

road, highway or avenue which is to be used or occupied by any railway or railways constructed under the provisions of this act, is by law vested in any local authority other than the common council of such city, the approval of the aforesaid plans and conclusions and the consent to the construction of a railway thereunder shall be given by such local authority in place of and if required in addition to such approval and consent by said common council and with like effect. Upon obtaining the approval and consent of the local authorities, as above provided, the said board of rapid transit railroad commissioners shall take the necessary steps to obtain, if possible, the said consents of the property owners along the line of said route or routes. For purposes of this act the value of the property bounded on that portion of any street or highway in, upon, over or under which it is proposed to construct or operate such railway or railways, or any part thereof, shall be ascertained and determined from the assessment-roll of the city in which the said property is situated, confirmed or completed last before the local authorities shall have given their consent as above provided. If such consents of property owners can not be obtained, the said board may, in its own name, make application to the general term of the supreme court in the judicial district in which such railway is to be constructed for the appointment of three commissioners to determine and report after due hearing whether such railway ought to be constructed and operated. Two weeks' notice of such application shall be given by daily publication thereof in six daily newspapers published in the city where such proposed railway is to be constructed, if there be so many newspapers published in said city, and if not then in all the daily newspapers published in said city. The newspapers in which said publication shall be made, shall be designated by the general term of the supreme court to which such application is to be made on the application of the commissioners without notice. The said general term, upon due proof of the publication aforesaid, shall appoint three disinterested persons who shall act as commissioners, and such commissioners within ten days after their appointment shall cause public notice to be given in the manner directed by the said general term, of their first sitting and may adjourn from time to time until all their business is completed. Vacancies in such commission may be filled by said general term after such notice to persons interested as the general term may deem proper, and the evidence taken before as well as after such vacancy occurred shall be deemed to be properly before such commissioners. The said commissioners shall determine after public hearing of all parties interested whether such railroad ought to be constructed and operated and shall