The sun. [volume] (New York [N.Y.]) 1833-1916, 1909-06-01
SENAT0R ROOT,S OPINION or
THE BARGE CANAL ACT.

James Wooo anu others several years az
for the bringing Of a suit by the Attorney
General OF New York to test the oonsttu
tionality OF the barge canal act Of 100;
an argument for the applicants wal sub
1nitted by Elihu Root and Charles Andrew
OF counsel. The material parts Of thil
remarkable brief are presented below
partly In order to indicate the possibili
ties OF the success OF the proceeding,
OF William Pele and another OF Ogden
Monroe county, to prevent the State from
taking property needed for the purposes
OF the barge canal. The action Is laic
against Frederick c. Stevens. Superinten
dent OF Public Works, State Engineer
and the Empire Engineering
Company, the contractor on this sector
OF the work. Pele's attorneys, Morgan
& Palace Of Brockport. seek to have al
injunction granted by the court, and the,
filed with the Attorney-General the sum
mons and complaint on May II.
OF the act, which is now for the frs
time directly attacked In the courts, Mr.
Root and Judge Andrews said in thei
argument:
The most striking Characteristic OF thi
statute is that while the provision OF mean
FOR payment Ia carefully limited no limi
whatever 10 imposed upon the cot Of tn
work which the act requires TO be done o.
upon the extent Of the contract obligations
which the act requires the officers to incul
In the name Of the State. The issue is lin
tied to SOL .Ooo, 900. but the improvement
which the statute commands the Stats
officers to make may cost 500. 900, 900 OF
$500 600, 00n or $500 M non. The State officer.
are not limited to the expenditure OF the
means provided; they are required to dc
the work and to impose upon the State
contract obligations 10 pay for the work
no matter what II costs and without any
whatever to the adequacy OF the
means provided for payment.
An examination OF the sections prescrib-
the work to be lone indicates that this
|esture was not accidental but essential
10 the scheme of the act. The work described
10 extensive and experimental. 1t involves
The abandonment Of the greater part of the
Erie Cans and h construction OF a new
by making nayigable the greater
part Of the Mohawk River, Wood Creek the
Oneida River and Seneca River. 1t 10 mani
that the cost OF such q work. the extent
the auxiliary works necessary for food
the extent and values OF the land
10 be taken under the right OF eminent do
the character and seriousness OF the
certain to develop during the
rogress Of the work, cannot be accurately
in advance. Common experience
that preliminary estimates OF such
work are usually too low. TIL draughts-
man of the statute therefore had TO choose
authorizing an expenditure linn
ted to the means provided. which might
and probably would be insufficient. or
State officers to impose upon
he State contract obligations su ficient
20 accomplish the work. however much 1t
night cost. and without any reference to
he means provided, He chose the latter.
A second Characteristic Of the act incident
the general purpose above described Of
'eauiring the work to be done without
respect to tho means OF payment provided
s that the contracts arc TO be made. the
land Is to be taken. and tho work
8 TO go on whether the bonds provided for
IRE sold or not. The bonds are to bear
at a rate not to exceed > par cent.
,er annum; they are to be sold at not less
han par. Not more han $40. 600. 90 are to
sold within two years, and thereafter
hey are to be sold in lots moi exceeding
|lo. 900. 900 at a time. By Section 3. within
hree months after issuing the bonds or
part thereof. the Superintendent OF
Public Works and the State Engineer are
directed to proceed with the work OF i'm
!. g.. IL a single bond Is sold at
var the work IL TO proceed. and II there
Ifter the state shall prove unable to borrow
money at the rate of 8 per cent. interest the
10 to 90 on without any provision
for payment. At the most there
,annot have been more than SO. 600. 900 Of
sold when the state incuH its con-
ract obligations 10 pay for the work. and
81 600, 900 OF the bonds must then remain
Ipsold. with nc certain knowledge that
hey ever can be sold under the terms OF
he statute.
That this contingency upon which the
eslization Of any substantial means to
for the Improvement depends is not
negligible quantity mus be apparent
pom considering the TACT that the rate
I interest at which tho state officers are
required to borrow money. IL at ali,
less than the rate at which the United
tates Government was able to borrow
ntil that Government offered 10 investors
pecial advantage q through the deposit
( Government bonds as security for cir
uldtlOU anu oONtTufneut uepOsltb. WDSU,
oeether with these facts. we consider the
ontinual changes OF stringency and con-
dence In the money market we are bound
D contemplate the possibility that at any
me the offer of the unsold 3 per cent. bonds
for by the act will bring no bid
ers at par or above par. In that case
he oblig GA tons OF the State incurred for the
Improvement. which will continually call
Or payment whether the bonds are sold
r not, will ind the State without means TO
leet them.
This statute violates the limitations i'm
osed upon the power OF the LEGISLATURE
v the State Constitution in several material
The act violates the provisions relat-
le to debt and expenditure found in
rticle VII. Of the Constitution. They are
8 follows:
SECTION 10. The canals may be improved in
ich manner as the Legislature shall provide BY
w.. A debt may be authorized for Shat purpose
the mode prescribed by Section I OF this
rticle, or the cost Of such improvement may be
.frayed by the appropriation OF funds from the
treasury or by equitable annual tax.
SEcTloN 2. The State may. 10 meet casual
shclts or failures In revenues. oy for expenses
OF provided for. contrast debts: but such debts,
irect or contingent. singly or In the aggregate.
nAll not at any time exceed one million OF dollars;
Id the moneys arising from the loans creating
ich debts shall be applied 10 the purpose for
they were obtained or TO repay the debt
o contracted, and 10 no other purpose whatever.
SECTION ). In edition 70 the above limited
wer to contract debts the State may contract
to repel i~nvssion, suppress instruction or
the State In war; but the money arising
ON the contracting Of tuch aAbts shall be applied
the purpose for which " IVES raised or 70 repay
lch debts, and 10 no other purpose whatever.
SECTION I. Except The debts specined In Sec
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