New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1860-04-10

got, 10 pay the Dersft W. re1cem inc p'inoP"' %
de 81 10 be IN -urred In the oonsirncon OF these canals,
and uvioably piedge1 therefor: snd thN tosso
pledges were renewed and confirmed, beyond leRri.
tive pow er 20 divert by the Constitution OF io1S enss
Nv that Constitution the tolls then established were
rIedoed bgh 10 the public creditors and 10 the TAX,
pa, ing people OF this State, " be Imposed ON sna
csIe cted from all parts OF the adv1Rdbk commWntc"
tons. between tbs great Western and Northern lakes
snd the Atlantic Ocean, which Nos are, or HereaJ'e'
shall be made and completed" :,
What vss the principle here established Notning
short O an imposition Of duty upon tue in'erf"l 1On
merce-tbe carrying trade OF this Ssate-eo reaeein
these hedges Times, circumstances, names, me FORM
end manner Of doing things may chanse-princples
never, and most of all should principle OF eonstu-
tona law be adhered TO, observed and preserveh,
amid the fluctuations of sub'unary things.
We know that, while this Constitution renamed tns
fundamental law of this State, in the progress OF set
ence and necbanis skill, new mode oil tiansis was
perfected and introduced into this State, Wnch alone
r cspable of being substituted for V Hac'gaoe com
,unn,catons" ia the transportation Of property ksi
roads were chartered by this STATE At frst IN frag
arv ooriCps ard either without authority 10 transport
property at all, or, when judged by We LegsA.ufe ~
come ia competition with tbe Ca0ala, with toe power
limited, and CONDITIONED for the Pymene II,o ens
Treasury for The ute of the Canal Fund OF full canal
tolls When these portions together and c0nnecssd,
formed one entire line from the great Western lakes 70
the tide ~ aers Of tie Atlantic am, la 1874 applied
for authority to transport freign, IL was OILY curing
tie suspension of canal navigation thai tne privileges
wac sought and then only Oh the condition OF paying
into the Canal Fund the same toll % II the proOsry
had been transported on the Cansls And no mnrmnf
was then heard from these corporations, who owed
their existence 10 governmental grace, and whore
structures could have been completed only by the dele
gaion lat that time questionable Pohcy OF lhas hign-
est attribute Of .overeignty-the nght OF eminent 40
main. The tolls then paid by them IN every sense be
came and were part Of the revenues OF the S'ste
Caral,-tolIs impoeed upon what had then become,
within the spirit of the Consultation OF 1872, part OF
the ndUigGble Communications between me great
Western and Northern lakes and the Atlantic Oceao,
and which, after the adoption OF the Conthtnnon mao
been mao and completed
The Constitution of 1916, we have seen, continued
the pledges I'D this respect oil tnat OF 49, @hd Tue
application of the entire revenue tnep eAsDg and us
confidently expected increase vas pledged 70 De apoed
in manner aud for the purposes specially provided
therein.
Tpe sovereignty of this State resides IN the people
thereof lie Legislature, mike the British Psrlament
is not n legal sense 0mDpOtent. All branches OF the
State Cover en-. are lin ted and crcumcfbed 10 the
exerce of power by the fuooameo al laS, and can 90
no act in violation OF is letter. or its plain spirit ADD
intent; sueh Act 6s ATTEMPTED oy any oranen OF the
leope' GOvebneni,h IL SIMPLY vOd-nothing.
The Constitution of 1876 removed the restr'ch on
decreasing the rate OF toll contained IN that of
1892 aud vested lie Legislative and other ofea agents
with discretion IN the manse eneh OF the eanai
reyenues in this respect Bus, this dscfeaon most DO
exercised to promote, lot TO defea tue expressed VIII
of their principals, the people. THESE agents nave
large discretion TO promote foster, and improve the
exeIee il 60 as in their best Judgment 70 eject the
porpose EXPRESSED in their c0nmifsoni the CJnsttu
lon to Wit: The payment Of the debts and the com,
peton Of the canals Of the State, by the means ana
ievenues provided by the Constitution, and any aoS Ia
violation OF that trust il Unconstitutional and void
When in l847, Immediately alter the adoption OF the
Constitution Of 1896 1t was believed promoiye OF com
mercia prosperity, in order TO seenEe more RAPID
transit when necessary, TO ALLOW toe railroads com
petng with The caDae 10 carry freight dining the Pc
nc OF canal DsvgatioD the Peoples agents miDdfo
of the cODst utODa limitations Of their power, and
loyal 10 the Constitution they had sworn 10 support
imposed tolls upon all 1reights so to be ntpseted
AID declared they "sball deemed to belong 10 100
Canal Fund.- and shall be paid over and GPp'd IN the
tie same tolls collected on frelehts trans
ported On the canals"
We lave Judicial viu6ication Of these same cODst
tuora provisions by the Court o. last Teso = Id the
of The People agt. Newell Is selden, u, which
decided that these revenues can only DO applied 10 the
nsDrer and foc the purposes provided By the Const
tuition and that act OF the Legisla'ure applying any
portion thereof TO the payment OF interest on DEBT
not authorized by the Constitution, even whea that
debt was contracted TO effect the end which the
Constitution pIoposed the completion of the caaals,
but in manner not authorized by he Constitution,
was unconstitutional and void.
No legal principle is more fully established more
universally recognized than this that whatever cannot
be directly done cannot be indirectly accomplished. III
kese revenues cannot by the LegiflatnIe ee aiIecy
bestowed upon the railroads, IT cannot indirectly Of
ieciuste the same reeultst, by dVeftpS 10 t1e rail-
roads tie freight out Of which the grew; and
tecObd, by releasing the payment Of tie tolls, whose
nay ebt had been made condition OF such diversion.
Nor is the exteot Of such diversion material 10 our in
quiry. No portion OF the revebuc whose application is
prescribed 10y the Conslitution-no portion of the
Source which pro iueed that We diverted,
sbandoIed or aissppLsd without palpable violation
Of The Constitution
The Attorney General is, therefore, Of The opinion
that the act of Jolly TO- 1885, aooishiug tolls on thu
feigbts transported railroads therein mentioned is
unooL stitutional ard void.
AL which is respectfully submitted.
CBAS. u. MYERS, Attorney General
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