The sun. [volume] (New York [N.Y.]) 1833-1916, 1905-02-09

Allt DAules NtlllltT lnt ltRlNlhluIt UOI Wv
! officers and agents Of the State or all com
/ bined can create n debt or incur an obliga
| ton for or in behalf Of the State, eHcep
TO the amount and in the manner provided
Tor IL the Constitution
The objects and purposes TO which tbs
/ moneys IN the Treasury shall be- app TO
printed or for which taxes shall be levied
are very much II not entirely, In the dis
/ erection Of the Legislature. Tho Legs
ature has entire control over the revenue.
/ OF the State, whether derived from annua
taxation or other sources except "a such
| moneys are pledged or appropriated by
I the Constitution. Such control ~ exercised
! by means OF statutes making annual APP
I preparations. that is, by acts declaring "a
! what purposes and in what amounts the
| moneys of the State shall DO applied, The
| acts of the Legislature in making these
! appropriations are supreme to the limit
! OF the funds and moneys at their disposal
! but utilities in excess OF that amount. The
credit OF the State Is beyond its control.
A pauper dying may. in form. bequeath
| millions, but his legatees will be none the
! richer, and those who come after him will
| be under no obligation to make good his
! bequests from their enemies So the Legis-
lature can efectually dispose of the moneys
! OF the State from year to year, but appro-
priauons in excess OF such moneys impose
no liability upon the people or obligations
upon successive Legislatures to provide
the means for their payment. The ad-
ministrative officers of the State cannot
give effect to them either by borrowing
money or mourning liabilities In other forms
for the reason that the Constitution stands
as an insuperable barrier TO any debt to be
created by such means.
Mr. Root said that the principles de-
clared in the decisions he quoted led TO the
conclusion that the present statute violated
the Constitution by undertaking totnprove
the canals without providing for defrdylng
IN ra "a
amount OF bonds which may be sod or
making complete provision for their pay
ment These would constitute burden
upon the future OF the state ana wouId
DO debts and liabilities which the Legls-
lature has no authority to incur.
The Court Of Appeals, said Mr. Root;
has stated in various forms tho generai
principle which is 10 be followed in testing
the validity OF the act, One decision SAID
1t is not enough TO render law oonsti-
tutional, that its language should be in SUCH
form as TO comply with the requirements
of the Constitution but it must comply
with then in substance.
one OF Mr. Roots strongest points was
based on section Of Article VII. OF the
Constitution, which prohibits the sale or
other disposition OF the canals. he
showed, by the plans of the barge canal,
that it is proposed to abandon three-quar-
tiers of the present Erie Canal
The new waterway said Mr.. Root,
will be inca pabe Of being used by boats
towed or propelled from the shore; 1t will
be no canal at all 1t ia OF no avail for
the statute 20 talk about this being an
Improvement of the canals or TO talk about
the 'canslization Of the rivers The plain
and simple fact IL that the canal Is to be
abandoned and we are 10 resort to steam
navigation upon the rivers of the State.
improved by a system of locks and dams
TO make what is called slack water naviga-
ton
MIR. Root recalled that the Hamburg
Canal in Buffalo was abandoned only after
the recommendation OF the Constitutional
convention of 1894 had been approved by
the people.
1t would somewhat have surprised the
convention and the people Of that day who
amended the Constitution TO permit three
miles OF the canal to be abandoned, 10 find
the Legislature authorizing the abandon
ment and sale OF $40 miles without regarding
the Constitution an obstacle.
1t may be said that the abandonment
of these canals il not IN effect an abandon
ment because the new system OF naVlRa-
ton to be created will answer the purpose
for which the canals were de1gned.
sufficient answer il that the Legislature
has not been invested with power 70 de-
termne that question. The people OF the
state have themselves, by their oonstituh ton,
declared that their purpose should be at
tanned by the preservation OF these present
canals and il is not within the power OF the
Legislature b. substitute any other means
for attaining that purpose II other means
are TO be followed the Constitution must
first be amended.
MIR Roots final contention was that none
of the defects In the act were cured by sub
mission to the people because there was no
constitutional authority for submitting to
the people any part Of the law except that
which authorized the debt. specified the OBJ
ject imposed the tax and provided for its
collection. This is a representative gov
eminent and the people cannot be called
upon TO pass laws except under the express
direction OF the Constitution. Nor dld the
question submitted to the people suggest
unlimited liability or any abandonment OF
existing canals.
Mr. Root said in conclusion:
Citizens whose interests are in COM
mon with all the other people OF the State
cannot themselves present these questions
to the courts because, in common with
all the people, they are represented by
the Attorney General. The general interest
in such questions can be asserted only In
the general name Of tho People OF the state,
and the Attorney General alone can
authorize or make such an appeal TO the
courts.
The time will come when special and
personal interests will be affected by the
attempted execution Of the act, and those
interests will test it, validity in the courts;
already have become involved In vast
obligations. by the issue Of bonds and the
making Of contracts; and for these. how
ever invalid they may be held to be. the
credit and good name Of the state VIII
require that some provision be made. Great
expense Is being constantly incurred which
will have been wasted il the act be held
unconstitutional.
1t is respectfully submitted that imme-
date steps should be taken TO secure IN
some appropriate form Of action judg-
ment upon the validity of the act
Attorney General Mayer asked Mr.. Root
what form of cotton he would suggest
should be taken TO test the validity OF the
law.
I would suggest said Mr.. Root that
you allow TO be brought in the name OF the
people of tho State an action TO enJoin the
State Comptroller from issuing the bonds,
or the State Superintendent of Public Works
from awarding the contracts or that the
State Engineer and Surveyor give notice
OF some strip Of land to be taken for the
new canal. in which event the owner OF
the land could Immediately bring suit.
The weather.
1t was colder in all the Atlantic coast States
except F1ords yesterday. and warmer in almost
all other sections ~ no point was temperature
OF more than degrees below zero reported and
freezing weather still extended into the northern