New-York tribune., 1905-02-09
CANAL FIGHT FOR COURTS.
MAYER THUS INDICATES.
Root and MiIburn Do Battle Before
attorney General.
rBr rELEGRApH TO THE rR1DuxE.I


Albany. Feb. Sat The close of a long ar
gument over the constitutionality of the Barge
Canal act before Attorney General Mayer to-
day in which the law attacked by Elihu
Root and defended by John G.. Milburn, the At
torney General indicated the probable disposi-
ton of the question. He asked Mr.. Miburn
concerning the possibility of action being
maintained against the law by taxpayer, and
then suggested for the consideration of the
friends of the canal. act the advisability of let
ting the whole question as test case go to the
Appellate Division. and thence speedily to the
Court of Appeals for a final disposition. To
this the opponents of the law virtually agreed.
Its supporters are still considering the new
move and are undecided.
The main question Of the argument turned
on the charge made by ex-Secretary Root that
the abandonment of the canal route as it is at
present was a violation of the constitutional
provisions against abandonment and sale of
canal grounds and at the close of Mr.. Milburn's
argument the Attorney General asked for fur
ther data on his side of the case indicating that
he still unsatisfed with the answer to the
attack.
Mr.. Root contended that the Canal act violated
the constitutional provision that canal improve
ments must be paid for by direct appropriations
or annual tax; that it did not provide for ade-
quate compensation for property taken; that It
did not impose tax sufficient pay the inter-
est and principal of the S101000O0o bonds au-
thorized by it, that it violates the constitutional
prohibition against abandoning any part of the
present canals and that the popular vote ratify
ing it did not remedy the defects in the act
In reply to a question of the Attorney General
Mr.. Root said that action might be brought
in the name of the people to restrain either the
Controller from selling bonds the Superin-
tracts. or proceeding might be begun by a
property owner to prevent the seizure Of his
property.
Mr.. Milburn expressed wonder that the petit
TONERS had delayed until work was about to
begin upon the canal enlargement, although the
law was enacted two years ago He held that
the act authorized issue of only $l0l ,OOOOOo
in bonds, and it was not. to be presumed that
the State officers would contract for work be-
yond the limits of that sum- The act could not
be held unconstitutional. unless it created
debt contrary to the constitution. He argued
that the tax provided sufficient to pay for
the bonds if they for eighteen years. and it
was TO be presumed that the Controller would
take that matter into consideration when he
issued the bonds
The right of the legislature to fix that tax
which it thought proper was not subject to re-
view in the courts. In reply to the point that
the owners Of land to be taken not pro-
tected constitutionally he said that there were
$101 100000 available, and the legislature had
evidently intended that the property taken
should be paid for from that fund.
Mr.. Milburn dwelt upon the question whether
the legislature had the right to change the route
of the canal, and in reply to questions by the
Attorney General argued that the legislature is
authorized to improve the canal SYSTEM that the
barge canal proposition is in the nature of an
Improvement, and that change Of route is not
prohibited by the constitution where the general
lines of the existing waterway followed and
the general object of the canal system is not de-
feated.
The Attorney General requested Mr.. Milburn
to submit his brief before February To- and 1t is
presumed that he will grant deny the re-
quest of the opponents Of the measure to con-
test it's constitutionalty after that date. 1t
is regarded as practically certain. however. that
in view of the immense public interest at stake
Mr. Mayer will decide to send the matter to
the courts for final determination in the man.
ner indicated above.
Associated with Mr.. Root for the petitioners
were Charles Andrews, Of Syracuse. ex-Chief
Judge of the Court of Appeals. and Isaac Plat,
of Poughkeepsie Those representing the de-
fence of the constitutionality of the act besides
Mr.. Nilburn were Abel E. Blackmar, of New
York and George Clinton, OF Buffalo. The hear
ing was largely attended by adherents OF both
sides in the controversy.