New-York tribune., 1905-02-13
CANAL CASE PUZZLING.
TO 60 TO THE COURTSa
Naaner Of Getting 1t There Prob
bIem--4 Suggestion.
EBY TELEGRAPH TO TIRE TRIBUNE. !

stitutionality of the Barge Canal act to .bs
court Of Appeals the consensus of opinion here
is that the question is already settled Friends
and foes Of the canal alike are prepared for a
6ecision which viii permit the highest court of
The State 10 settle, and settle beyond cayi the
entire problem Of the constitutionality Of the
act But the exact way in which this will he
accomplished is still prohematical and the proc
ess 10 be followed as yet unforeseen. since a
grave doubt exists as to the wisdom Of letting
his case go before the court in the manner now
contemplated by the petitioners
The pith Of the whole situation seems 70 he
that while Attorney General Mayer. as a State
oTcer. is perforce compelled to sustain the con-
stftucionaty Of this act. still, the present con-
dition offers the paradox that the law can only
be finally sustained by some attack that car
res il TO The Court Of Appeals for final deter
rninaiiol. How. then. this attack is to be made
n such q fashion as TO be final and yet not even
technically involving State officers in perplexine
s,ld intricate attitudes is the immediate prob
ZEN for solution That the manner now under
consideration. namely an attack with the con-
sent Of the Attorney General, will not be fol-
lowed is widely believed. and this belief is
founded legal opinions that viii ultimately
be called 10 Attorney General Mayors attention
TIE argument before the Attorney General last
week developed the fact that there was a meth
Mr Nlhurn. answering the assault of ex-Secre-
tary Root on the law. was interrupted by the
Attorney General with the question: Gould
8 taxpayer maintain action resisting
tax levy by county tax officer for an assess
neut 70 meet canal expenses he replied in
the Affirmative What this meant definitely
was that when the canal work has been begun
bonds sold. contracts let and money expended
then there must ultimately be a tax levy for
eral years. When the local tax collector came
% a taxpayer the latter could resist the levy
Then, IN due course the action would go TO the
Court Of Appeals to be decided. and if the re-
sistanoe was on one Of the specific points where
NJ. Root declared the law to be unconstitutional
this question might be determined. But as five
points we're urged. It is clear that this process
might be repeated as often as there were points
raised.
COSTLY LITIGATION INEVITABLE
Such an action would necessarily pass through
rhe local courts first. and it is entirely within
The possibilities Of the situation that county
Judge. in anti-canal county, while affirming
thar il his dutv declare the law consti-
cuuional might write an opinion asserting that
grave doubts had been cast on its legality. OF
course, the result of this opinion on sensitive
market, where some bonds had been sold and
more were 20 be sold, is entirely obvious A
eampaign against the issue on this line would
aIso DE possible If the Court of Appeals should
hen decide the law unconstitutional millions
would have been spent, the credit and honor of
the State pledged, and endless and expensive
litigation would be Inevitable. Such-a contin-
sency the eminent counsel OF the friends of the
sct admitted was entirely possible
Further than this, when the taxpayers action
went 70 the Court Of Appeals. that body might
decide only on the merits OF the particular case.
II conformity with its usual practice: then
the real difficulty would remain for new test
and new depreciating influence on the bonds.
Al THIS reasoning is at present being advanced
70 show Why the taxpayers action, while DOS
sb-s, Is not feasible, from the point Of view Of
ne States interest. carrying as It does the
certainty Of long delay and endless litigation
Vhen speedy and final determination is d.sired
On the other hand, the problem Of getting the
case 70 the Court Of Appeals in the manner
asked by AIr. Root and his associates last week
s beset with many complications Mr.. NiIbprn
made the point last week that the A+torno,
General could only consent TO the bringing n,
me action asked for If he as a matter NJ cor,
science, believed that the law vas unconsti+,,-
iional- Inen his action. as Mr. MiIburn pointa5
out, would in reality be directed against +ba
iellow members Of the administration to restrain
them from doing something that he believed n
he rlanlfestiy unconstitutional and clearly an,
1sgonistic 70 the best interests of the state
such an action the Attorney General has taken
I'D The recent Cornell land case. but only for tho
reasons cited. For, after ALL the Attorney Cen
eral, as State official and as a member Of the
salalHistration is Of necessity charged with Tho
duty Of maintaining existing statutes.
Moreover IL would be entirely possible that a.
some future date the Attorney General ,,ieb+
% called on 70 defend some State on1cial-tbe
controller, for exanTpIe-in some case arising out
q the canal law. This he could hardly do if he
rad previously. as in the pending matter indi
'sted his belief even technically, that the law
vas unconstitutional. Thus he would be fairly,
paced on both horns OF the dilemma Moreover
mere Is 10 present reason for concluding that
re Attorney General will take the view that the
anal act Is unconstitutional His questions at
me nearing indicated that the only one Of the
POINTS raised that seriously weighed with him
aS NAT regarding the abandonment of the por-
'''is ot the present Erie Canal specified 1t is
--ie.y possible that he might find an answer
IT'S objection entirely ccnsonant with the
s@"y of the at This would naturally pre-
M AZ granting the request made 10 him by
'f- Foot ard his associates.
PROBLEM WOULD REMAIN FOR COURTS
Bet the decision Of the Attorney General that
-e act vas constitutional would be neither
-''-~i no- oefnitive- The whole problem would
IAN for the courts. 20 be brought there after
as aila after litigation which would inevitably
r'-sst tte value Of the bonds. and which might
'-a , the declaration that the law was uncon-
1'uo-al after millions had been spent. For
l.eciseiy this reason there Is a growing belief
f. 'rr.rH