New-York tribune., 1905-02-10
VALIDITY OF THE CANAL ACT


1,ba orcument made before the Attorney zen
orai nv 1Tr FI;hu Root in support of the con-
ten+ion that the 1oOO-ton barge canal act Is ull
constitutional was of course, ingenious anu
interesting. II the question is to De suDIhltteu
10 the courts, as now seems prooaoie' VIC 'i'
know in due time, whether or not the "is
ment was conclusive In pracucal sense' "
the mean time it is not disrespectful 10 say tiial
of Ieast some of Mr. Roots reasons are not I'M
mediately convincing.
There is no need of considering at length the
noin+ +ba+ If the act was constitutionally defec-
five IFS defects were not cured by the popular
vote of approvaI in 1908 That fact is obvious
and uncontradicted. Nor does 1t seem 10 us
necessary to attach great importance 10 MI
Roots opinion that the contemplated improve
ment is likely to cost vastly more than the sum
of S1O1 100000 which the people by an over
whelmng majority resolved TO spend Inc sur
veys and calculations were made win eHtraor-
binary care Disinterested engineers OF the
highest professional repute after close consider
alton pronounced them trustworthy. and the
recent bids on test contracts were much below
the estimates Thus far there is no sufficient
reason for assuming offhand that gross mis-
takes were committed in reckoning the cost or
the undertaking.
With respect TO the main ISSUE Mr. Root laid
stress on the contention that the change of route
vision forbidding the State to part with the
canals 1t had been surmised that this was
point on which the opposition relied. but it will
not readily be admitted except by the minority
who were signally defeated at the polls, that
project for enormously increasing the utility
of the canals is equivalent TO their abandon
ment Mr. Root urged that there was no ade-
quate provision for recompensing land owners
whose n operty might be taken Yet the first
section of the act expressly directs that the
cost of procuring necessary lands shall be de-
frayed out of the proceeds of the bond sale. He
. asserted that, while the act limited the bond
issue to S1O1 100000. the State officers were not
limited TO the expenditure of that amount, but
on the contrary, were commanded TO perform
work for which the money provided might be
insufficient. If that is valid objection, we
cannot see why it should not be held to prevent
any undertaking for the execution of which
debt may be authorized in accordance with tho
requirements of the constitution The act limits
the bond issue and provides that Sc much of
the proceeds as may be needed shall be spent
for the object specified. 1t is not to be pre-
sumed. as Mr.. Milburn said, that the State Of
1cers will contract for work costing more than
that amount. Mr.. Root affirmed that the tax
levied in the act was not sufficient to pay the
interest on the bonds and the principal at the
end of eighteen years. That is an assumption
rather than fact, and, moreover, it seems to
imply unwarranted restriction of legislative
authority and discretion.
The point was recently raised in the Senate
that too much was submitted TO the people at
the election Of 1903-that nothing more should
have been referred to them than the constitution
requires the legislature to refer in such case.
Mr. Root adopts or at least presents, that view.
but It is doubtful if he assigns much value to
it. deficiency would have been fatal, but a
superfuity was presumably harmless.
The act provides that the bonds shall be issued
at per cent and sold at not less than par.
1--WE are bound" said Mr.. Root, "to contem-
plate the possibility that at any time the offer
"of the unsold per cent bonds will bring
bidders at par or above par. In that case the
obligations of the State incurred for the inn
''provement, which will continually call for pay
"ment whether the bonds are sold or not, will
find the State without means to meet them"
1t will probably be said in reply that this is a
suggestion of possible financial embarrassments
rather than the interposition OF a constitutional
barrier.
Governor Higgins recently said that he could
not properly let mere gossip about constitutional
work, but the formal submission Of the question
by responsible counsel for the objectors changes
the situation. Whatever may be thought of Mr..
Roots argument, doubt has been cast on the
validity of the act, and the apparent inclination
of the Attorney General TO obtain a judicial set
tlement of the issue without unnecessary delay
will be generally approved.