New-York tribune., 1905-02-17
CAN CHANGE THE COURSE.
.ANSWER TO ELIHU ROOT.
Milburn and BIackmar Oppose Canal
Test Case IN Court.
rsY rErreRApH TO THE TRIsUSE.l

Albany Feb 16-The brief of the counsel for
the Canal Association, John c. Mflburn ana A.
e. Blackmar. answering in detail the arguments
of ex-Secretary Root the unconstitutionality
of the Barge Canal law. was to-day filed with
the Attorney General. The brief, following the
suggestion of the Attorney General, confines IT.
self to the constitutional question involved in
the abandonment OF the portions of the present
canal contemplated in the act but the further
significant argument is raised TO the pro-
priety of the Attorney General sanctioning the
creating of a test case and questioning the pos
sibility of raising such asquestion in manner
to secure final decision by the Court of APP
peals. The various legal opinions and author
tiles quoted by the counsel in defence of the
constitutionality may be summed up in the
following conclusion drawn from a citation Of
these opinions in the brief. which discusses the
meaning of the constitutional inhibition against
selling or leasing canal lands
The meaning of this constitutional provision
obviously is that these waterways as highways
of commerce shall always be owned and man
aged by the State and never shall be sold, leased
or disposed of TO private individuals or corpora
tions, and it has no further operation of effect
The brief continues after citation of the con-
stitutional provisions of 1894:
The improvement contemplated by this section
is whatever is consistent with the development
sary by modern conditions and requirements or
canal transportation. It is whatever in the
judgment Of the legislature. is necessary to
adapt the canals navigable communicate tions
to present needs and conditions. If to accom-
plish that result it is necessary to make
changes in the present courses of the canal such
changes are obviously within the Improvement
authorized. There is nothing sacred about the
particular channel of the canals at this point
or that, and no reason for considering the par
ucular channel at any point something per-
manent and Interchangeable. The essential thing
is the canal as a navigable communication be-
tween specified waterways. such as Lake Erie
and the Hudson River. Whatever is necessary
to adapt such a communication to it's full func-
tions, and purposes as such. is the Improvement
which the constitution authorized and commit
ted to the good judgment of the Legislature that
may require changes of route at various points
as we'll as other changes.
AS to what shall be done in the way of i'm
provement, the legislature is the final and sole
judge. There is no limitation on the power Of
the legislature to adapt by Improvement the
canals as navigable communications to their
highest usefulness to be implied from the pres
ence of warehouses or other private structures
along the route of the present. canal at any
point They are the source Of no vested rights
restraining canal improvement
The advisability of the test case on lines sug-
gested in the legislature and published in The
Tribune Monday. furnishes the ground for an
extended argument in opposition to the plan, and
to all plans of test cases, which includes the
raising of the question as to whether there
cOulQ De any test case. Ine Drlef on this point
is as follows:
We have carefully considered whether as a
matter of good policy any action to test the con-
st1tutionality of the act should be brought, and
have reached an adverse conclusion, for the rea-
son that there is no actual controversy warrant
ing an action which the courts will surely enter
tain at this time, and that the delay, which is
really what the opponents of canal Improvement
want, would be injurious to the public interests.
The law has been passed and approved by the
people, and it is the duty of public officers, i'll
the absence of instructions from the Attorney
General to the contrary, to execute 1t. We know
of no precedent for delaying the execution of
act until test case is decided. 1t would
be a bad precedent to establish, because the
carrying out of any important measure invov-
ing the expenditure of money could be arrested
by it's opponents questioning it's validity. We
question the propriety of the Attorney General
sanctioning the creation of a controversy for
the purpose of a test case. Courts sit to decide
real controversies, not controversies arranged
for the purpose OF having questions determined
The courts would decline to consider a contro-
Versy arranged for such purpose if the fact
was known to them. And to keep the fact from
them involves disagreeable concealment. No
way Of surely raising the constitutional ques-
tions has been suggested.