The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-05-26
THE DECISION ON THE CANAL LAW.
In the Court OF Appeals.

H.
ANTS IN ERROR.
Thomas III. Rodn,an, appellant. against Alfred
MansOfi, respondent.
johnson, 1.-The question of the constitutional
BY Of the canal act of July l0th, 1851 is directly
presented by these cases, and must necessarily be
decided. decision against its validity will prove
Injurious TO the interests of many persons and dis
appoint the earnest wishes of many more. But this
consideration. while 1t occasions regret on my part
detracs nothing from the obligation to preserve the
constitution from infraction. The evil consequen-
ses to the community from an example of judicial
unfithtuness to that duty, would far outweigh the
worst to be apprehended from decision adverse to
the canal act.
Before proceeding to the consideration of the
principal question involved in these cases, it may
not be amiss to advert very briefly to two
copies which were urged upon attention
the argument; for there may be found persons so
little familiar with the course of judicial procedure,
as to attach to them much more Importance than
they really deserve. These topics were presented
to us under great number of distinct heads, but
are reducible to two:-the one, that the Governor
and other State officers, and two successive Legisla-
lures, have been of opinion and had officially acted
upon the opinion, that the act in question was not
Tepugnant to the constitution; the other, that
several gentlemen, occupying no official station, but
Of acknowledged learning and ability as lawyers
and statesmen, had expressed opinions to the
same effect. As to the first ground although
the action of the other departments OF the go
vernment is always entitled to the respectful con-
alteration of the judiciary it and ought to weigh
nothing when it conflicts with their settled convic-
tion of the requirements of the constitution As to
the latter ground, it seems quite obvious that we
should be very forgetu of duty and of the obi
CATION and responsibility officially imposed upon US
if we allowed our judgments to be swayed by the
opinions of any number Of men, however respecta-
BILE. II is moreover, perhaps, worthy of remark,
shat all the opinions which were cited to US save
one, were given upon the act as it proposed be-
fore the extra session of the Legislature Ii did not
then contain the provisions which form its four
teenth section; and yet the counsel who pressed
these opinions upon consideration declared that
he should not have appeared before us to maintain
the eonsttutionality Of the yet if it had not con-
tanned those provisions.
Leaving these matters without further observa-
tion, let us turn TO the main question which we are
called upon to examine The people Of this State,
in the exercise of their Enderiyed and sovereign
authority, established the constitution. As part Of
the machinery of government under it, they created
Senate and Assembly, and vested in them the
legislative power Of the State The authority of the
Legislature is not inherent, but is entirely derived
from and subordinate to the constitution The con-
stituton is the basis Of Legislative authority it lies
at the foundation of all law, and is rule and COM
mission by which both Legislators and Judges are to
proceed, e Dali 304) If, therefore, an act of the
Legislature is contrary to any provision of the con-
stltuion. 1t cannot possess the force of law Ever
since the formation of constitutional governments
this principle has on all proper occasions been as
serted and enforced by the courts and is now one of
the acknowledged maxims and fundamental rules of
the law
LIE PROVISIONS OF tne constitution which bear
most Immediately upon the question before us
are contained in article Z, sections and Il. The
third section provides, that after paying certain
expenses of the canals, and the sums appropriated
by the first and second sections of the same article
not more than 100000 shall be paid out of the
surplus revenues annually to defray the necessary
expenses of the State. land the remainder of the
revenues Of the said canals shall in each fiscal year.
be applied, in such manner as the Legislature shall
direct to the completion Of the Erie Canal enlarge
ment and the Genesee Valley and Black River
canals, until the said canals shall be completed"
Section l. Of this article provides, that 'no debt
shall be hereafter contracted by behalf Of this
State, Except certain debts specified in the tenth
and eleventh sections, which have no bearing upon
the question under consideration,) unless author
lied by law imposing an annual tax to pay the
interest and provide for the discharge Of the prin-
epal such law to be submitted to the people. at
general election, before 1t can take effect If it
shall be found that tie act III question purports to
dispose Of the TemGiLders Of the revenues of the
canals at 81 time in a manner unauthorized by
the third section. or that it purports TO create
debt unauthorized by the provisions CT the twelfth
section, then the act is void
To look at the provisions barring upon the first
of these questions from the same rcnt OF view and in
the light of the facts did the convention WHO
framed tie constitution and tie people who adopt
ed it, will facilitate our arriving al Just conception
OF Its meaning. IN the years 1881 and 1895. the
project Of charging the EIe Canal began to be
carried into effect. The financial policy adopted
was substantially to apply the surplus revenues to
thus furnished would permit. This policy was
pursued until 1885, when another and wholly differ
ent course was adopted. 1t went upon the basis OF
considering the revenues Of the canal Il fund to
provide for the repayment Of the PRINCIPAL and to
pay the interest Of moneys to be borrowed and appi-
ed to the completion of the work; and this is in
substance the pan Of the present Canal act. Upon
this plan the State proceeded till 1872 when. judg-
ing from the legislative action Of that year, the
scheme was found wholly to have failed.
When the convention assembled in 1916, these
two financial schemes were fresh in the recollection
Of every one. That the difference between them is
not formal, but Of their very essence may be rem
dered entirely APPARENT from consideration Of the
results which would follow the adoption of each
plan; taking for the sake Of Illustration certain as
sumed amounts for the revenues of the canals. and
for the total cost u construction. These amounts
are obviously wholly unesseutial, and in 10 way
affect the principle Of application. They as
sumCd, rot because they supposed to represent
with accuracy the actual condition Of the canals. OF
the probable results Of the bill in question but be-
cause they afford striking iilurtIaioa Of the differ
ent results which may follow from the adoption Of the
enc plan or The other Ia order therefore to determine
the question proposed lot MS assume the annual re-
mandor ofIoyeuues TO be $500 Gee and the ota cost
Of completion Sl5,0o0,0G0. BY the annual aprliea-
ton Of the rrmainde1s the causs would certainly be
completed in Thirty years. What would be the re-
suit the PRINCIPLE al anticipation a1euted by The
net in question The annual interest on tLe loan
Of s. 000, eco, at six Per cent is $50 900; the nu-
nUal remainder applicable SO It's payment 500 900
and the annual deficit 10000. SO that at the end
Of thirty years. instead Of having he canals COM
piettd and debt, tE > would still need an eypen-
eiture Of S6.43,G00 10 complete them, and the
amosrlt Of money owing would, " REASON Of the
deficiency Of lie remaiEde!s TO keep down the an
rual interest, have s1clICd up from $4,000, 900 to
Sl0,2C0lo0.
1t is obvious therefore, that the difference be-
tween these two schemes Is not formal or modal
merely, but is difference ID their very nature and
cssencc. Having fruits widely different. they do
choice. and might unnatural iy e.-