New-York tribune., 1904-10-11

The proofs of this claim were closed and the
case was submitted to the board on December
81, 1902. the day on which the term of office OF
the then members of the board expired Dur
ing the progress of the hearings it was brought
10 the attention OF the members of the board
that before the abandonment of the work in
1873 certain portions of the work eXcavated had
been originally classified as earth and then re-
classified rock and that the excess of rock
prices over earth and such material so reclassi-
fed amounted to something over S34OO (but
the exact amount do not recaiN. which sum had
been paid the contractors at the time Reason
for such reclassifcatina or the data on which
II was based did not appear; the query in thu
mind OF the board being as TO how after the
materials had been thrown up together on the
spell bank accurate measurement upon
Acm Se nloas 20 n Pqse me me Teelassifcation could
this matter was not properly before us. and oa
q leS& proposition II was very doubtful whether
we e0tid go behind an adjustment of the matter
madt by the de5ty constituted officers OF the
State. having tss7rnal superintendent of the
matter five years before. The board however
regarded its powers as somewhat extra i,dI-
cal.' and Informed the attorneys for the claim
ant that unless this matter Of reclassihcatton
could be satisfactorily explained the hoard
would deduct from the amounts due such sums
the result OF such reclassifcation
The proposed findings had been prepared
adopted, unless they desired an opportunity to
satisfy the board on the points suggested
whereupon such opportunity was requested and
was granted and the minutes of the roeeti,a ~
December 81, 1902. will sho. that Instead ofS re-
ieetins any item in the claim as stated by Mr.
Cunneen, the board adjourned without taking
any action Whatever. The members present al
that meeting were Attorney General Davies
State Enqineer Bond, Superintendent of Public
Works Soyd and myself, three of whom,
Messrs. Bond, Boyd and myself became noero
bers Of the succeeding board from ,.Sbieb IL
would appear that IL we had been actuated bv
motives asoribed by Mr.. cunneen we could have
oisPosed OF the matter then and there we
merited criticism. Il at all for sttarontIne tba
exercise Of doubtful power in the interests of
tne state Certainly no good LAWYER would
nave dared go farther than the State interests
Mr. Cunneen has certainly forgotten what oc-
CURED, because at the meeting of the new
board I explained in detail why fhe matter boH
been LEFT by the former board without any ac-
tion having been taken. and TO satisfy Mr.. Gun
mems objections that the record was entirely
@ snent e,ther as 10 the action Of the board or
upon what point new evidence was to be re-
ceiVed. offered a resolution that the hearing
De opened 10 hear evidence upon the sole point
as 10 the right or the State to deduct the sums
PAID by reason OF said reclassihcation upon
which, as recall IT, Mr. Cunneen voted mo"
Mr. Cunneen creates the impression that
upon rehearing the evidence was directed 10
the question TO whether rock was exca-
waited and says that twelve witnesses testified
that there was no rock. Here again his MEM
ory is at fault; the evidence being directly d.
rected principally 10 the question as 10 whether
there was hard pan, which, under the special
agreement, should have been classified a. rock
as is gen rally understood: the difficulty with
this attempted Improvement that the pre-
Iimfnarv survey had not neen accurate result
times that sum was required Contracts We're
let for excavation without knowing definitely
the class Of material TO be excavated. Upon
the rehearing the following facts appeared: The
original contract had provided for earth ex-
cavation which was defined material that
could be ploughed. no provision being made for
hardpan which as engineers know is freouent-
ly more difficult TO excavate than rock
Soon after the work began the contractor
countered hardpan and rocky formation called
"red horse" There was no provision in the
contract for this, therefore the engineers elas-
sifed it as earth, accurate measurements, how
ever, being taken at the time, with the under
standing that il could be adjusted later There
was no pretence that this should be pioughed.
The undisputed evidence being that portions
were takep out by blasting and by pick and
shovel, and other portions by means OF ma
chine, specially constructed, called a wind
jammer," operated by steam
These facts were brought 10 the personal at
tention of the then State Engineer and Sur
veyor and the then State Superintendent Of
Public Works. who, after personally investigat-
ing the matter, made new contract with the
which was approved by the then
Canal Board. by which II agreed that the
material that could not be poughed be classi-
fed rock. and that the contractors should re-
ceive 81 a yard therefor, which was less than
rock prices contained in other contracts The
classification then made. the average meas
urements upon which this was based were pro-
duced before the board. being the held notes
and maps showing all sections, and filed in the
Division Engineers Office, made at the time,
showing the prism of the canal and the actual
dimensions of each kind Of material from which
81 apDears that the material reclassifed was
OF the character claimed by the contractor
Opposed TO this evidence the Attorney General
produces twelve witnesses which he speaks Of
who lived in the vicinity, and had been en-
ployed as laborers on different parts OF the
work Their employment had been Of a char
acter as not necessarily to have directed their
attention to the question upon which they un-
dertook to testify: after the lapse Of Ave years
few of them pretended TO have anything like n
distinct recollection. Some OF them admitted
they did not know what a "hardpan was:
others said there was but very little "hardpan,"
and Il think there was none; others. who
seemed TO know the most about IL, admitted
that there was "hardpan" all through that sec
tion of the cour:ry at the depth at which this
was excavated.
THE REAL QUESTION PRESENTED.
The question was thus presented, not as
stated by MIR. Cunneen, as TO whether the board
should allow the claim for material thus
classified, but to whether under such evil
dence, there not being scintilIa or proof point
the power TO repudiate that Of the duly consti
tused officers Of the State, who had adjusted the
matter after personal Investigation, and upon
measurements made by the State Engineer on
the ground.
The question was not whether the board
should allow this an item of the claims pre-
sented, but whether II should arbitrarily deduct
from the money which the State had been un-
lawfully Withholding from the contractor for
Ave years the sum paid him under a contract
lawfully made by the proper officers Of the State
more than five years before
The question Of reclassifcation related to
several contracts covering several contiguous
questions IL recall II now, five In number. II
Il was fraudulent in part IL was in toto. If any
reclasshcation was improper. they were all inn
proper. because II was all one contract. Instead
OF deducting $4,000. the amount used by Mr.
Cunneen in his statement. twice that sum had
been deducted. The minutes of the board will
show that the board first took up the question
whether there was evidence TO dsprove or i'm
peach the classfcations and contracts paid
by the proper officers Of the State more than
five years before voting in respect 10 each
section separately. and that Mr. cunneen voted
with the other members to the effect that the
board did not have such power in respect to