New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1905-03-11
COURTS TO TEST CANAL ACT
OPINION BY DIR. My ER.
He BeEeUes Lac Constitutional
Aduises Beginning the Work.
[BY TELEGRAPH 70 THE TRIBUNEl

the 1.OO0-ton barge canal law Is to receive It's
final test in the courts. In an elaborate opinion
published to-day Attorney General Mayer eX-
presses his personal confidence that the act is
constitutional. but adds that on account OF the
Importance of the issue involved the question
should go to the courts of the State.
1T viii be In the interest Of the people Of the
State" ne said that in the course of admin
istration of the act real controversy win soon
arise which will result in judicial determine
ton of the questions involved. Until that time
1t is the duty of the officers charged with the ad-
ministraton of the act to proceed with its exc
cution in accordance with the provisions
thereof"
The method of bringing about the submission
of such controversy is that outlined in The
Tribune several weeks ago, at the outset of the
attack on the validity of the law. The At
torney General says:
In the administration of the law it viii be
necessary in the immediate future for the state
Engineer to enter upon lands provided by
Section + Of the act. and for the Superintendent
of Public Works to serve the notice provided
for by the same section. and thus 10 complete
the appropriation of real property for the pur-
poses of the act If such appropriation Is re-
sisted by some person affected, believe that
the questions presented upon the argument De-
fore me be fully determined 1t has been
urged that in such proceeding these questions
cannot be determined but with this view do
have considered fully the cOnsttutionality OF
statutes when the right of eminent domain has
been asserted.
Such an action Will present a real and not
academic question, and preparations are al
ready being made for the beginning of such a
test
The Attorney General recites the facts of the
recent hearing at Albany. held application
of number of citizens TO himself to bring or
ba in, tIa of
the people of the State of New-York to test the
consttutionality of the Barge Canal law. at
which ex-Chef Judge Charles Andrews and
Elihu Root appeared behalf of the apph-
cants and John c.. Milburn. George Clinton and
Abel z. Blackmar in opposition. He considers
at length the arguments advanced in order to
make clear the grounds which he based his
conclusions. After answering some OF the less
important arguments against the constitution
atty of the law the Attorney General replies to
the contention that the act violates Section Of
Article Of the constitution which prohibits
the sale, lease or other disposition of the canals
in question He says in part:
pepp S o he State haTe tine c2e the
constitutional amendment: to provide for the aban-
the purposes of the argument we constrUe the
waterway, the question then is. did the cOnstitu-
ton mean that the particular waterways existing
seryed ma vietb c0mmunicatfons between The Iakes
and the ocean, substantially in the general direc-
ton of the present waterway, although deviating
therefrom in many details and particulars:
sustain the latter, which seems to me the broader
view; that the constitutional intent that high
ways of commerce should be maintained between
course Could from time to time be changed in such
manner as the people thought best; provided. how
1Ie %ateT% IsGr rom nd ION rom Se itAe s
tinued acts of administrative officers, we have a.
Tor canal purposes may be disposed Of and, as
there have been some ninety separate changes
the Erie Canal alone in the course of the water
miles new prisms being constructed at distances
from the the QGgnai course yaTyns from eigR[ huns
great as thirty miles; notably for instance, the
Change through the villages of Jordan, Weedsport
and Montezuna where the course was changed for
length of about thirty miles. and another change
of about twelve miles near the village of Lyons
And. finally. whether there would be any power
lands of the present waterway when "9 our oS
rendered longer necessary or useful Tor Sucn
directed by the act could be determined at such
times as the state 2uthorlues might oHer 10 SELL
The opinion continues:
In the light of past experience. and with these
contingencies. and whatever may be the different
views as to the merit and wisdom oil ri @CI bIert
the oficers of the State cannot have an opinion,
for it is their duty TO administer lays as they I
of the State that adjudication be obtained from
the courts which shall once and for all settle the
validity Of this act. The dtnculty Is IN the orIhS-
ing about of This result in such manner as Will t'li-
form with settled principles.
1t clearly the duty of the Attorney General 70
sustain the mandate Of the legislature and OF the
people II Is elementary tIat sNeIS 49, ny ~
IS in favor of the COnSttut1Onuity or an act or tue
legislature and II is peculiarly the duty or the
Attorney General TO sustain and defend an enact
ment which has been the result OF long ana earnest
contest. and which has received continuation by
overwhelming vote at the polls Nor can the
Attorney General be found. except in rare in-
stances in such antagonism TO other State officers
administering a law to authorize him IN the
name OF people, TO bring proceedings by way OF
injunction. otherwise 10 restrain another of1cer
from acting. upon the ground that the enactment
Is unconstitutional when il is clearly his duty To
defend and assail the enactment
1t to me that those who have questioned
open to them to speedily test their views. An
animation the grounds upon which il is claimed
by the counsel for the applicants that the act is
unconstitutional Will. think disclose that every
of these propositions can properly and fully
considered in action or proceeding wherein
person whose land is appropriated reslsJs in good
faith such appropriation
Should such u controversy arise, should consider
II my duty facilitate its speedy determination
and to assist in every possible way in presenting
the subject the courts upon its substantial
merits stripped OF technicalties Such a course
would not delay the administration OF the act in
question which requires an Improvement ueces-
tending over 4iO miles: for the six sections Included
in the proposals already received cover territory
OF only about twenty-three miles, and this terri
tory in the main. is at some distance from the
present waterway. that work thereon Corld
proceed without interfering with the canals when
they are opened for navigation.
Meanwhile ana until some Such case as I have
indicated arises the State officers proceed
discharge the duties devolved upon them by law
with order. care and elaboration.