The safeguards included in all previous New York State legislation on authorities to limit their lifespan were the provisions setting a time limit on their bonds, a date by which each authority must redeem all its bonds, surrender control of all its facilities and go out of existence. Moses, drafting amendments to the Triborough Bridge Authority Act, knew that the Legislature would never agree to the elimination of these safeguards.
So he didn't eliminate them.
He just made them meaningless.
Right at the beginning of the original Triborough Act—in Section One, in the portion labeled "Existence"—the act said explicitly that the Triborough "board and its corporate existence shall continue only for a period of five years and thereafter until all its . . . bonds have been paid in full . . . ," a provision which when coupled with a provision setting the maximum life of the bonds at forty years, was intended to limit the maximum life of the Authority to that span. The amended Triborough Act which Moses was proposing said the same thing—in the same place, right at its beginning, in Section One.
But it also said something else. Not at its beginning and not in the portion labeled "Existence," but long, legalistic pages later, buried deep within the act, in a subdivision of Section Nine, a subdivision and a section that ostensibly had nothing to do with "Existence," there was a new sentence:
The authority shall have power from time to time to refund any bonds by the issuance of new bonds, whether the bonds to be refunded have or have not matured, and may issue bonds partly to refund bonds then outstanding and partly for any other corporate purpose.
"He had figured out a gimmick/' says Reuben A. Lazarus, drafter of the original Triborough Act and himself a master of the gimmick—and as Lazarus spoke a smile broke over his old. wrinkled face despite his attempts to conceal it, and his voice was filled with admiration, the admiration of a master of a difficult craft for a man who was more than a master. "That sentence looked so innocuous. But it changed my whole act completely. With that sentence in there, he had power to issue forty-year bonds and every thirty-nine years he could call them in and issue new bonds, for another forty years. La Guardia had thought that authorities . . . would be temporary creations that would build something and then turn it over to the city and go out of existence as soon as it was paid off. But with that gimmick in there, it would never be paid off."
Never. The existence of the Triborough Authority "shall continue only until all its bonds have been paid in full," the act said. But, because of Moses' amendments, the Authority no longer had to pay its bonds in full. Every time it had enough money to pay them in full, it could instead use the money to issue new bonds in their place. The amendments meant that unless it wanted to, the Authority wouldn't ever have to turn its bridges over to the city. It might, if it so desired, be able to keep the bridges—and stay in existence—as long as the city stayed in existence.
The safeguards included in all previous New York State legislation on authorities to limit their scope were the provisions setting a limit on the amount of bonds each could have outstanding, a limit sufficient to pay only for the specific project or projects the Legislature wished it to build and nothing more. The Triborough Act contained such a provision, a clause stating that the Authority could not have outstanding more than $53,-000,000—an amount sufficient only to cover its $35,000,000 share of the cost of the Triborough Bridge and the $18,000,000 cost of the Bronx-Whitestone Bridge. But Moses' gimmick made that restriction meaningless, too. For by authorizing the Authority to issue new bonds not only to pay off old ones but also for "any other corporate purpose," it was authorizing it to keep its indebtedness at $53,000,000 even though it had money available to pay off part, or even most, of that figure. If, for example, the income was high enough to pay all its carrying charges and also accumulate a surplus, which after five or ten years amounted to $20,000,000, the Authority could then call in $20,000,000 of its outstanding bonds, pay them off and therefore have only $33,000,000 outstanding. Its legislatively authorized borrowing capacity would still be $53,000,000. Its revenues would support that amount of bonds. So the Authority would have $20,000,000 of borrowing capacity. It could issue $20,000,000 in new bonds and use the proceeds of the sale for "any corporate purpose."
And what were such purposes?
The original Triborough Act had given the Authority power to build only the two bridges and their "approaches." Moses' success in persuading the PWA that approaches could mean roads leading to the bridges had greatly expanded the Authority's power.
Now he proceeded to expand it further.
The new, amended, Triborough Bridge Authority Act that Moses was proposing still said first that the Authority's powers were to build bridges and their approaches. But, in later sections, it also said some other things.
The act empowered the Authority to acquire land for and construct not only approaches but "new roads, streets, parkways or avenues connecting with the approaches," and to widen existing roads, streets, parkways or avenues connecting with those approaches. The word "connecting" was innocuous—unless one began to think closely about what it would mean if Moses expanded its definition as he had expanded the definition of "approaches." If an approach was miles long—the Queens "approach" to the Triborough Bridge, for example, was six miles long—scores of roads, streets, parkways or avenues intersected ("connected") with it. Under the amended act he was proposing, the Triborough Authority would have the right to widen any or all of them. It would have the right to build a new thoroughfare that would connect with the approaches anywhere along their length. And how long could that thoroughfare be? A block? A mile? Five miles? Ten? Could it be a highway that ran clear across the city? Under the amended act he was proposing, it certainly could. And suppose he wanted to build another—third—highway, to intersect with the one he had built to intersect with the approaches? Since this new, third, road would connect with the second, and the second would connect with the approaches, why could not the third be said to connect with the first? Under a liberal definition—a definition such as Moses had long since proven himself adept at making—quite possibly it could. Quite possibly, in fact, one could say that any major thoroughfare in the city "connected" with any other. And if one could say that, one could say that the act that Moses was so carefully drafting would mean that the Triborough Authority would have the right to construct highways throughout the city, in many respects exactly as if it were the city government itself.
And not just highways. Another clause in the act gave the Authority power "to construct and develop for the purpose of public parks" lands acquired "in connection with the Whitestone Bridge project and with new or existing roads, streets, parkways and avenues connecting with such project." Under the act Moses was drafting, the Authority would be able to build parks along any highway it might construct. Since the Authority would be able to build highways throughout the city, it would be able to build parks throughout the city, too.
And not just highways and parks. Buried still deeper within the act Moses was drafting was a clause giving the Authority the right to build and operate any "facilities for the public not inconsistent with the use of the project." Not with the project. With the use of the project. Since the project consisted of bridges, roads and parks, why, under that clause, would it be inconsistent for the Authority to build housing nearby that would allow more members of the public the convenient use of those bridges, roads and parks? Why, for that matter, would the construction of any public facility be inconsistent with the use of the project? An aggressive Authority chairman, anxious to stretch the powers in the act to the limit, could well find in that
phrase legal authorization to build any type of public facility he chose anywhere along the Authority's bridges, roads, streets, parkways, avenues and parks—anywhere, in fact, in the city.
And the best bill drafter in Albany set to work to make sure that, in building and operating its projects, the Authority, despite the limitations on its power by the State Leg
islature, would nevertheless possess powers equal to those possessed by the state—or by the city of which, in theory, the Authority was merely a creature.
Legislature and Mayor had sought to insure that the Authority would be subordinate to the city by including in the old act the provision that the City Comptroller should be the Authority's "fiscal agent." The new act included the same provision. In drafting the section entitled "Moneys of the Authority," Moses began it, in fact, with the flat statement: "All moneys of the authority from whatever source derived shall be paid to the comptroller as agent of the authority." The meaning of this sentence must have seemed clear to any legislator who read it. The definition of "fiscal agent" was well established; he was the individual empowered to receive and pay out a corporation's moneys. But later in the section, Moses added another sentence: "The moneys . . . shall be paid out on check of the Comptroller on requisition of the chairman of the authority. ..." With that sentence added, the Comptroller, while still authorized to receive the Authority's moneys, would be able to pay them out only on Moses' requisition—would, in other words, be able to do with them only what Moses wanted him to do. He was still required to take Moses' money to the bank and deposit it there, but he was now forbidden to take the money out again without Moses' signature on the withdrawal slip. The sentence that Moses had slipped into the act meant that although the Comptroller of the City of New York would be called the Authority's agent, he would really be no more than its errand boy.
Legislature and Mayor had sought to insure that the Authority would be subordinate to the city by including in the old act the provision that the city would "own" all Triborough projects. The new act said that it did— flatly and clearly. But it also said that "the authority shall retain full jurisdiction and control over all its projects. . . ." The city might own the Triborough Bridge, but only the Triborough Bridge Authority could run it.
By the time Moses had finished drafting his amended acts, his authorities had not only all the powers of "bodies corporate" but many of the powers of "bodies politic"—including bodies politic that were sovereign states. His authorities had the right to "do all things . . . that a business corporation can do"—to sue, for example, to make contracts and bylaws, to acquire real estate and use it or lease it or dispose of it, and, of course, to issue bonds— and they had the right to do many things that private corporations could not do. They had the power to own public facilities, to require the public to pay tolls for their use and to prevent the construction of competing facilities so that the public had no choice but to pay those tolls. They had the right to
govern their domain by making their own laws ("rules and regulations for the protection of" their property which "shall have the force and effect of law," with violations "triable by a city magistrate and punishable by not more than thirty days imprisonment, or by a fine of not more than fifty dollars, or both") and to maintain their own police force (hundreds of Authority "Bridge and Tunnel Officers") to enforce those laws. They could have their own great seals ("and alter the same at pleasure") and set their own statute of limitations (a private citizen suffering damages by negligence of a private corporation had three years to sue; a private citizen suffering damages by negligence of the Jones Beach State Park Authority had six months to sue). They had the sovereign power of eminent domain, and more—not only could they take a private citizen's property, they could enter the land before it was taken to make the surveys necessary to decide if they wanted to take it (never again would some Long Island farmer be able to ram a shotgun against Sidney Shapiro's chest and keep him off his land). They had, in fact, some powers that sovereign states—at least the sovereign state of New York—did not. They could let contracts without competitive bidding. Their officials could be removed only for cause; they were immune from the pleasure of the Governor.
And Moses made sure that these powers, these powers corporate and politic and, in some respects, greater than both, would be embodied, ultimately, not in the authorities but in him personally. In the case of the single-member authorities, of course, the authority was Robert Moses. The Triborough, Jones Beach and Bethpage authorities had three-member boards, but while their enabling acts said, "The power of such corporation shall be vested in and exercised by a majority of the members," it also said, "The board may delegate to one or more of its members . . . such powers and duties as it may deem proper."
Then Moses set to work to make sure that no one would ever be able to take those powers away.
He did it in Section Nine, Paragraphs 2 and 4, Clauses a through /. Paragraph 2 authorized the Authority to pass resolutions governing the sale of its bonds. The various clauses of Paragraph 4 said, when taken together, that the resolutions could contain provisions dealing with toll rates, Authority rules and regulations and "any other matters, of like or different character, which in any way affect the security or protection of the bonds." And Paragraph 4 also said that any such resolution "shall be a part of the contract with the holders of the bonds."
Legislation can be amended or repealed. If legislators were in some future year to come to feel that they had been deceived into granting Robert Moses wider powers than they had intended—the right to keep tolls on a bridge even after the bridge was paid for, for example—they could simply revoke those powers. But a contract cannot be amended or repealed by anyone except the parties to it. Its obligations could not be impaired by anyone—not even the governing legislature of a sovereign state. Section Nine, Paragraphs 2 and 4, Clauses a through /, gave Robert Moses the right
to tmAodj m Triboroo^f bonds all the fomcn he bad been given in the fclirfMina creating Triborough. Therefore, from the moment the bonds were sold (thereby patting into effect the contract they represented), the powers he had been given in die legislation could be revoked only by the mutual ilMfr «r of both Moses and die bondholders. They could not be revokec by Ike f fof that had created die Authority or by the err. whose mere in Hi—rufnUj it was supposed to be. If he copied info die bond resolutions die legis lati o n giving him the right to charge whatever toQs he wished, for as long as he wished, from the moment the bonds were sold that power could never be revoked without his consent If he copied into the bond resolutions die legislation giving him his other new, broad powers, those powers could never be revoked The elected representatives of the state and city migh have given Robert Moses those powers. But the elected representatives c the state and city would never be able to take them back.
Previously, Robert Moses had always needed what he termed "execu the support." He had learned during his first great effort in public life—his attempt to reform the municipal civil service, an attempt brought to naught by ms betrayal by John Pur bel—that as long as he was an ap-
pointed official, he could not accomplish great dreams without the backing of die elected official who had appointed him. and he had never allowed to forget that fact His skill at bill drafting and his hold on the public had gained him a unique insulation from Mayors and Governors ms dairy operations, but it had still been only a chief executive who could give him die money and power necessary for the creation of giant public works.
But now he needed exe. jpport no longer. In the fields which
he had carved out for his own—transportation and recreation—the passage of his "amendments'" to the authority enabling acts had given him resources of money and power independent of Governors and Mayors. Their approval was no longer required. Before Moses, the public authority had been a mere instrument of the city, a body established by the city's duly constituted, elected officials to carry out one of their decisions. His public authorities had been set up to do what they wanted done. Now his authorities would do what he
For yean R ofeert Moses had sought executive power himself, hastily switching his party allegiance in 1928 when he thought he had a chance for the Democratic nomination for Governor, switchmg back to Republican in 1933 when be thought he had a chance for the Republican-Fusion nomination for Mayor, finally obtaining a
nomination and running for Governor in 1934-Each such clutch at executive of^cc had been anattempt to obtain more « through normal democratic pre ;: the 19 u debacle, how-
ever, it was obvious that this path to power was forever barred to him. His voter-antagonizing personality meant that he was never soing to be able to obtain that supreme power which, in a democrat.. c ety, onlv the people can, through their votes, confer.
But now he needed that power no longer. In many ways, the amendments to the authority acts had given him, in his fields of operation, more .power than he would have possessed as chief executive of state or city.
And Moses knew it. Prior to passage of the authority amendments, he had scrounged for elective office. After the passage of those amendments, he disdained it. For the next twenty years he would with regularity be approached by men prepared to back him for a gubernatorial or mayoral nomination, and he would firmly discourage them. Robert Moses was interested in money and power, and he no longer needed elective office to obtain those prizes. After the passage of his authority amendments, he had them already. With the institution he defined as "a body corporate and politic," Robert Moses had, on a broader scale, simply repeated the formula successful for him at Yale and with the Long Island State Park Commission, carving out within the state and city governments but outside those governments' traditional, formal framework a unique, independent niche. Now, thanks to his penchant—his genius—for seeing potentialities for power where no one else saw them, in the future his public authorities as well as city officials would be making vital, city-shaping decisions.
The power broker : Robert Moses and the fall of New York Page 96
