The sun. [volume] (New York [N.Y.]) 1833-1916, 1909-06-01

Ispda which shall Ia his judsnent be neces-
sary; that be shall make 40 accurate SUR
vey and map thereof end annex thereto
his certificate that the lands therein de-
scrlbed have been appropriated for the
use Of tho canals Of the State" This map.
survey and certificate are TO be hled In
various public ofhces. aud Q notice 10 TO
be served upon The owner. Upon the
fserviee Of the notice the appropriation
of the land by the State 10 to be deemed
complete.
The only provisions regarding compenss-
ton are In the concluding paragraphs OF
the fourth section. as follows: THE Court
of Claims shall have jurisdiction to deter
mine the amount OF compensation for lands.
structures and waters so appropriated :;
and In The first section OF the act, which
! provides that the proceeds Of the SiOi 900 900
tof bonds are to be paid into the State treas
Jury. and so much thereof as shall be neces-
sary expended for the purpose Of improving
the canal and the procurement OF the lands
acquired in connection herewith; and
in the thirteenth section. which provides
that the $40, 200. 100 there appropriated from
the proceeds of bond and land sales shall
be paid out In various ways, and among
others "on the presentation of awards by
the Court of Claims for compensation for
/ t6UVt6 dppTOpT Tbtcu IN pAoNi uCu ~ VI
4 OF this act"
The plan Of land acquisition thus appears
to be:
That the State Engineer shall appro-
pirate and take possession Of whatever land
he deems necessary for the purpose Of the
work; that the Court of Claims shall have
Jurisdiction to determine the amount OF
compensation which gu ght thereafter to
be paid: that the improvement fund derived
from the sale of bonds and from n sales
which there nay be OF abandoned lands is
Intended for the payment Of such compensa-
tion as Q part OF the cost OF the work; that
IS appropriations shall be made from time
to time out Of this improvement fund the
Comptroller Is authorized to pay the COM
pensation awarded by the Court of Claims
among the other elements Of cost Of the
work.
II is plain that this plan leaves q man whose
land Is taken entirely dependent upon the
suficiency OF the Improvement fund for
his compensation.
II the work shall cost more than the pro-
ceeds Of SIoi 900. 900 OF bonds then the man
whose land has been taken will be left
without compensation unless by superior
diligence he succeeds In getting early pay
ment out of the insufficient fund. leaving
some other creditor to remain unpaid. The
same is true IL the State IL unable to borrow
money at 3 per cent. interest. The mans
land will have been taken; he will get the
amount OF compensation he ought to re-
ceive fixed by the Court Of Claims. but there
will be no means for payment and no proc
ess by which ha can procure payment.
The compensation for the land taken Is
not certain, but is subject to all the on
tingencies OF the undertaking; I. e., the con-
tingenoy that the cost hay be greater thar
the fund aud the contin genoy that the State
may not be able TO borrow money at 3 per
cent.
This is not such provision for oompensa-
ton as the Constitution requires.
w.
The act violates Section q Of Article VII.
Of the Constitution. which prohibits the sale
or other disposition OF the canals.
Tho project described Ia the act il q sub
stantial abandonment OF the canal system
OF the State and the creation OF a new, in
dependent and different waterway by .
Of slack water navigation on tho Hudson,
the Seneca Rivers and on Oneida Lake and
Wood Greek.
Three-auarters are to be totally aban-
doned and but one-Quarter IL to DO re-
tanned.
When in 1894 1t was found desirable to
abandon a little branch OF tho Eric Canal
In the city Of Buffalo known as tho Main
and Hamburg Street Canal tho people of
the State smendsd the Constitution In order
to permit that to be done. and the clause
permitting Il 10 to be found In the present
section as 1t was inserted by the oonstttu-
tional convention OF 1894 and approved by
the people Of tho State. It would ONE what
have surprised the convention and the
people Of that day who amended the Consti-
tuition to permit three miles OF the canal
to be abandoned 10 find the Legislature
authorizing the abandonment and sale of
$50 miles without regarding the Constitu-
tion as an obstacle.
It may DO said that the abandonment
and sale Of these canals Is not in effect an
abandonment because tho new system of
navigation to be created under the act will
answer the purpose for which tho canals
were designed. and thus preserve the OBJ |
ieot which the Constitution intended to
preserve by making the canals inaliepable.
A sufficient answer Is that the Legisla- |
has not been invested with the power
to determine that question. The people
OF the State have themselves by their on |
~stitution declared that their purpose should
be attained by the preservation of these
canals. and 1t Is not within the power |
OF the Legislature to substitute any other
means for attaining that purpose. II other
means arc TO be followed tho Constitution
must first be amended.
v.
None ~ the defects In this act are CURED
by the submission to the people.
There was no constitutional authority for
submitting to the people any part Of the
except that which authorized the debt.
the object. imposed the tax and
for its collection.
None Of the other provisions of this statute
could be constitutionally submitted to the
people for their action, either in the same
which contained the provisions
above enumerated or In . separate statute.
This is q representative government, and
the people cannot be called upon to pass
except under the express direction
Of the Constitution.
Nor wa this act drawn in such a way AZ
IN fact to submit to the people any question
the question OF issuing the limited
Of bonds for canal improvement.
The question submitted to and voted on
BY the people was - follows:
Shall Chapter i%7 Of the Law OF 1908. entitled
An act making provision for issuing bonds TO
he amount OF not exceeding loi million dollars
Tor The improvement OF the Erie Canal. the osweeo
Tor . submission OF the same " the people to be
voted upon a. the general election 70 be held In
he year 1908, be approved
There is here no susssstton OF any un-
United liability or Of say abandonment
" the existing canals. On the contrary.
he suggestion Is Of a carefully limited lia-