The sun. [volume] (New York [N.Y.]) 1833-1916, 1899-07-20
NO CANAL PROSECUTIONS.
REPORTS or ATTORNEYS MACFAR-
LANE, FOX AND SHOTE

honesty Observation-Disclosures That Justify
severe Criticism but Not Criminal Prose-
cution-No Important Instances of TN
balanced Bidding Not Barred from Prose-
cut,on by the statute Of Limitations.
Albany. July lO--Wullace MacFarlanc and
Austen g. Fox of New York city. who were ap-
pointed by Gov. Roosevelt. and Ben amin j.
shove Of Syracuse, who was appointed by
former Attorney General Hancock. to examine
the testimony OF tho Canal Improvement In
vestigating Commission and report II any
grounds were presented by the testimony on
which to base prosecutions against any State
Official or employee who were connected with
the canal improvement work. agree that there
In nothing in the testimony OF the Investigating
commission which would warrant the COM
mencrment Of prosecutions against any ono.
Judge Edwin Countryman OF this city, who
was appointed by former Governor Black to
pass similar Judgment upon that testimony. re-
ported generally that prosecutions could lie
against both superintendent Aldrdge and State
Engineer Adams though he did not specify in
what direction Judge Countryman's report
was referred to the Attorney General by Gov.
Black but Attorney General Hancock was not
satisfied that he could secure conviction on
the testimony secured by the investigation
commission. or on anything contained in Judge
Countryman's report. The appointment OF
Mcssrs shove. MacFarlane and Fox followed.
with view Of settling uron some specific
charge TO the Grand Jury against the State
officials having charge OF canal Improvement
work Their report. holding that there is no
ground on which to base any such prosecution.
finally disposes OF the question.
Messrs MacFarlane and Fox in their report
gay:
we have confined ourselves strictly to
careful examination OF the testimony and the
report OF the Canal Investl gating Comm sston
and OF Judge Countryman, and OF all the pa
pers and contracts connected with the canal
Improvement work. including a personal ex-
animation OF a number OF the engineers who
had charge OF parts Of the work done under
said statutes. Whether the work which has
actually been done is OF good quality and in
accordance with the contracts we did not in
vestigate. We have confined our investigation
only to the expenditure OF the So. 900. 600 ap-
propriated for the general canal Improvement
work.
1T soon became very clear that unless we
intended to spend several years on the task we
must concentrate our attention upon n small
number OF the contracts. 1t was not difficult
10 sclect those afrordng apparently the most
fruitful field for investigation and presenting
typical instances Of those acts OF the officials
in charge OF the work which throughout the
whole pr posed improvement and in all the
contracts had called forth the severe criticisms
oil the Investigating Commission. We selected
contracts No to > and contract No. % OF tho
middle division for an especially careful inves-
tGaton. and our inquiry into these contracts
and the numerous transactions relating to
them. referred to and criticised in the report
Of the Investigating Com ission, ia quite ado
Quatc. in our opinion. to justify us in saving
INT 1,,r npncluCipnS in IN
tracts would apply with equal force to all the
other contracts either on this or the western or
eastern division.
The objects OF the most severe criticism by
the Canal Investigating Commission were :
The lack Of correspondence between the COM
putations made from the preliminary survey
as stated in the bidding sheets and the work
actually done by the failure to prepare tho
specifications in time to inform the engineers
engaged in The preliminary survey what would
he the definitions Of rock and ombaukment: by
the futile attempt to bring the work, which the
preliminary survey showed would be desirable
more nearly within the authorized expcnd-
ture Of Sa.OOO.UOO: by cutting out large
quantities Of the proposed work. especially Of
slope and vertical wall: tho classification OF
earth as rock: the allowances of an emhank-
ment rrico in addition to the price for eScava-
ton whore materials were hauled more than
1000 feet: the excessive number Of special
agreements for extra work not included in the
contracts and made without public letting. in
creasnC the expense.
I'VE have decided not to institute criminal
proceedings II, as alleged. the State Engineer
and his principal assistants prepared bidding
sheets without sufficiently considering the
form Of the specifications. il the Specifications
were loosely drawn. il the bidding sheets dis
closed but mperfectly the quantity and nature
Of the work that would actually he required. il
IN" Superintendent Of Public Works awarded
contracts on such Inadequate estimates. il
methods OF sSiiication and m"asurrmnnt
were followed which in the Judgment at sailed
even II u disposition was shown TO exercise" dis
cretonnrv powers perSistentN in favor Of the
does no nHnssnriI ria, ' n,ne h nn
committed such conduct undoubtedly justiii"s
severe severe criticism. and may pr"rery subject tn"
Hlicr and render them til" objects Of jus pub
nr inniEnaii@n PM TO Justify rrii,mn
proof OF hhsty calculations. ignorance Of the
conditions that would h" met on h. work and
,fr"rS ~ Judgment III drhwng tho slh",Nmn-
h"ns. while in respect II n" exercise 81 dis
dictionary Iow'r~ IL thc imrortan, subject Of
no criminal p,osarut0n is really prncti-
can" without something more thnn AZ, orin-
ION however authoritative. that the disrrc-
tin was not, wisely or, proy"rv exercised.
There should be reasGnah,y clear proof that in
charge I'll" conduct Of the Nccms"d was deter.
mined 10y some dishonest motive. or at least
,n naf a." hhsrssHH VIII n NJ OF the
Gfut' in the premises cniniined upon him by
some law relating TO his official duties II
ffGme Of the methods adopted in preparing the
bidding shsets and some Of the provisions Of
the specifications appear in the light OF sub
teaurnt events to have been iIl-JnGged. such
mistakes do not necessarily constitute 'wilful
neglect or 'wilful omission 70 perform
euch duties which by our statutes Ia made a
criminal offnnce
Our decision to institute no criminal proa-
ecutlons on this evidence does not mean that
In our opinion the officials charged with ear
fylng ont the great work Of improving the
canals have done their duty. Tho dis"reton-
airy powers vested in the Superintendent of
iuhllc Works md the engineers 10y tho con-
tracts and statute7, pursuant to which tho
work was done. were undulv great and have
been abused The acts which have been most
severely criticised will he found to he cyrrciScs
OF discretionary powers, Classifying hardpan,
locating spoil banks and borrow ptS, thus de-
termipnR emhankmont allowances, making
special agreements for alleged changes
ot plan all involved the exercise Of dis