The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1878-01-07
1HE STATE CAPITAL.
The Question Of the Vacant Canal
Commissionsrship.
OPINION OF The ATTORNEY GENERAL.
The Chairmanship of the Leading CON-
mittees of the House.

icy TELEGRAPH TO THE HERALD.
ALBANY, Jan. o, 1878.
Attorney General Schoonmuker has decided that
or THE OPINION.
The following Is the text of the opinion:-
Canal Commissioner Adm Thayer, whose term OK.
pired on December 81 cannot hold over until the in.
.slallation OF the Commissioner OF Public Works. and
that Thayers Office is vacant.
STATE or New YoRE
OFFICE OF THE ATTORNEY GENERAL,
ALBANY Jan. ., 1873.
TO Hon. GEORGE W. SCHUYLER, Auditor, &c.:-
DEAR SiR-In compliance with your request for the
ADVICE OF the Attorney General upon tho question
whether Hon. Adm Thayer has authority to act as
Canal Commissioner since tho LIST OF January INST,
have examined the subject ard am or OPINION that
he has no such authority Mr. Thoyers term OF olloe
there Is no provision OF law by which he holds
ovor or has any authority act alter the expiration Of
hts term Is provided by the statute that public Oh
floors duly appointed to their positions shall hold
and perform heir duties until their SUCCESSORS shall bs
in the case OF elective State officers Ia such cases
when the term expires, the Office Is vacant and
sv nss aS
providing Tor superintendent oil Public Works,
now section three OF article five Of the constitution,
does not IN my opinion, continue Mr. Thayer Office
That section declares that
The office Of Canal Commissioner is abolished and
emit aa ~Sch ma the o.
siones shall contnns to discharge their duties
A Superintendent OF Public Works not having been
appointed or qualified, the olicc OF Canal Commls-
sioncr Is not aboshed, hut continues precisely II
existed before the adoption OF the amendment TO the
constitution Neither tue oflco nor the methods by
which u must be filled arc affected in any manner
tendent Tho amendment preserves the ONCE
ana ana, requires the officer to discharge It's
Of Se Us sxsn The term charge
duties and the manner OF alllng the Office left
they were. The amendment cannot DO properly con-
strued TO intend moro than expressed. In the alb
sence OF any express enactment cannot be presumed
that the officer was intended TO be retained beyond
his term Under such a construction in OF a dis
agreement between tho Governor and Senate IN tho
selection OF superintendent, The Canal Commission
ers might remain in Office indefinitely without power
OF removal for any cause, beng by virtue OF the
Btliution
The provision that the "Caual Comm ssioners shall
continue TO discharge their duties provided by
law has full force and effect given TO II by the
struction that preserves the Office 10 be ned the
term or o.her vacancy the continuance in oilce Of
the incumbent can only be claimed by implica-
cept when a public necessity ex SITS. when the
public interests may suffer, mode Is provided to
hli the place In this case no such necessity exists
There Is alupo power to fill the vacancy. STRAINED
construction need not therefore, be resored TO
large the letter OF the constitution For these
Commissioner Respectfully yours,
A. sCHoONMAKER, Jr., Attorney General
THIS will probably hasten action upon the nominal
ton Of Farchild. Under the act OF November 10,
1887, vacancies IN the ONCE OF Canal Commissioner,
occurring during the session OF the Legislature are
filled In tho manner as vacancies in the Board OF
Regents OF the University-by JOINT action OF the
Senate and Assembly. The Legislature may appoint
republican In Thayer's place, but the Board would
den being yet In office The Senate will PROBABLY
confirm or reject Fairohd on Wednesday next
VIEWS OF LEADING DKMocRArs
Leading democrats, however, deny the power of the
Legislature to appoint q Canal Commissioner vice
and sSs say there be nna no s run
Canal ommissioner last November there IL now no
unexpired term to ILL., while the statute OF 1S47 re.
lates only 10 unexpircd terms and TO
curing from the failure Of the people elect. they
claim that the place cannot be filled either by Legs
lallve selection or by Executive appointment.
tendent of Pubnc Works confirmed or
another Canal Commissioner Is elected by
tho people and that o popular election to fill
office abolished by the constitution and existing only
through the failure Of the Senate to confirm cons.
cot attempt TO appoint Canal Commissioner, and
should the Legislature elect his right the office
there way Of the muddle short of the conf
nation OF superintendent OF Public Works
schoonmaker's opinion !. will be seem is In con.
calling for the election OF Canal Commissioner last
November.
THE HOUSE CoMxIrTEEs
Speaker Hustled, who returned last night, Is suffer-
ing from attack OF rheumatism. He mas not yet
decided upon the House appointments. and, he says
has not yet made up single committee. The com.
mittees Will not DO announced until Thursday Alvord
Will, however, be chairman OF bothWays and cans and
mentary CUSTOM he having offered resolution Tor
that special committee. Mr.. Valentine, OF Wayne
county, has been selected for the OF In
ternai Affairs. The chairmanships OF Judiciary Cities
and Canals arc still unsettled The chances are IN
favor of MT Hayes Tor Cities but there pressure
Tor his appointment Canals la which Mr. Fish
will get Cities For chairman Of the judiciary Com.
mittec Mcssrs Gilbert, Hepburn and j. G. Graham
candidates, with chances in favor OF MT. Gilbert
GENERAL DIX RESIGNS.
Speaker Hustled has received the resignation of Gen.
cra Dix as Regent OF the University, rendered
count OF wantjof time 10 attend to tho duties "
Charles X. Smith. editor oil the Journal, will bo his
successor. The appointment In place Of Pruyn. de-
ceased, Is not yet determined
THE EXCISE.
Speaker Hustled will not appoint any special com.
mittee on excise. All bills that subject will 10 TO
the committees on cities or internal affairs bill
providing Tor State excise system, under the control
Of a State Commissioner Of Excise, will DO intro
duced IN the House on Thursday. IL organizes
State Excise bu.esu In the place of the National In
tcrnal Revenue bureau anu removes the subject from
local control in all cities.
COT1RT OF APPEALS