Appendix — Long Sault Development Co. v. Call
Supreme Court brief1916
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APPENDIX A.
STATE OF NEW YORK.
OFFICE OF THE ATTORNEY-GENERAL.
Opinion Rendered to the Senate of the State of
New York Relative to the Constitutionality
of the Charter of the Long Sault Develop-
ment Co.
Lona Savutr DeEvELOpMENT Company—CHARTER—CONSTITU-
TIONALITY.
Chapter 355 of the Laws of 1907 granting certain powers
and privileges to the Long Sault Development Company is
unconstitutional in that:
First. It contravenes section 18 of article IIL of the State
Constitution, which provides that the Legislature shall not
pass a private or local bill granting to any private corpora-
tion, association or individual any exclusive privilege, as con-
templated by section 18 of article III of the Constitution.
econd. It violates section 7 of article VII of the State
Constitution, which provides that the lands of the State now
owned or hereafter acquired, constituting the Forest Preserve,
as now fixed by law, shall be forever kept as wild forest lands,
and shall not be leased, sold or exchanged, or taken by any
corporation, public or private. The bed of the St. Lawrence
river, which, by the act in question, is directed to be conveyed
to the Long Sault Development Company, is owned by the
State and was so owned at the time the provision of the Con-
stitution was adopted, and was included within the Forest
Preserve, as defined by section 100 of chapter 332 of the Laws
of 1893, describing the lands included within the State Forest
Preserve.
Third. The act in question is a private bill and embraces
more than one subject, and is, therefore, in violation of article
III, section 16 of the State Constitution, which provides that
no private or local bill which may be passed by the Legis-
lature shall embrace more than one subject, and that shall be
expressed in its title.
fourth. The act is invalid as being in excess of the powers
of the Legislature, in that it provides for the alienation by
the State to the Long Sault Development Company of title of
the lands in the bed of the St. Lawrence river. The title of
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the State in these lands isa sovereign right, rather than a
proprietary title. It is inconsistent with that right, which
must be exercised for the benefit of the whole people, that the
title to the bed of a navigable stream should be granted in fee
to a private corporation.
OPINION.
I herewith submit my opinion to your honorable body,
pursuant to your resolution of March 29,1912, which is as
follows :
“ WueEneas, An act constituting chapter 355 of the
Laws of 1907, provides among other things that certain
persons therein named shall be a corporation to be
designated as the ‘Long Sault Development Com-
pany’; and
“ WueEnreas, Such act further purports to convey to
said corporation valuable and exclusive privileges and
rights, and directs the conveyances to said corporation
of certain lands belonging to the State under the waters
of the St. Lawrence river and referred to in said act;
and
“ WHEREAS, It is claimed that said corporation is
proceeding under such act to acquire private lands, and
to secure the consent of the governments of the United
States, and of the Dominion of Canada, confirming said
act and the privileges assumed to be granted thereby ;
and
“ Waereas, It is further claimed that such act is
unconstitutional in that it assumes to convey exclusive
rights and privileges by special enactment, and further
assumes to convey a portion of the forest preserve of
the State which by the constitution is made inalienable
on the part of the State ; be is therefore
“« [tesolved, That the Attorney-General of the State
is hereby requested to transmit to the Senate for its
further consideration his written opinion as to whether
such act as aforesaid contravenes the constitution of the
State in any of the matters herein referred to, or in any
other particulars ; and if in his judgment it does, what
if any present action or proceedings may be brought by
215
the State to ascertain judicially such fact; and that
such written opinion be ready for submission on the
reconvening of the Senate in the year 1913, or at any
time prior thereto if the same shall be convened in
extraordinary session and prepared to receive the
same.”
(Here follows what the Attorney General describes as
“ Substantial Prov sion of the Act.”)
OPINIOY.
The act in question, chapter 355 of the Laws of 1907, con-
travenes section 18 of article III of the State Constitution.
Section 18 of article III of the State Constitution is as fol-
lows :
“ The Legislature shall not pass a private or local
bill in any of the following cases: * * * granting
to any private corporation, association or individual any
exclusive privilege, immunity or franchise whatever.”
This provision of the State Constitution was not inserted
until 1874 and took effect January 1, 1875. I have been un-
able to find any decision of our courts since that time directly
involving the question here presented, namely : does a grant
by the Legislature to a private corporation of a right or priv-
ilege to dam a navigable stream and appropriate and utilize
the whole power therefrom contravene the above provision.
The Act of 1907 is plainly a private and a local bill.
It is a private bill in that it relates only to a particular
corporation, organized for private gain, to be controlled by
private stockholders.
The Court of Appeals, in Economic Power & Construction
Company vs. The City of Buffalo, 195 N. Y., 286, held that
every act incorporating a company for private gain and gener-
ally all acts relating to a single corporation are private acts.
This act comes under the above definition and is, therefore, a
private act.
The courts define a local act as one which in its subject re-
lates to but a portion of the people of the State or to their
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property, and may not, either in its subject, operation or im-
mediate and necessary results, affect the people of the State
or their property in general. People vs. Supervisors of Chau-
tauqua, 43 N. Y., 10; Johnston vs. Spicer, 107 N. Y., 201;
Astor vs. Arcade Railroad Co., 113 N. Y., 93.
This act comes clearly within the above definition and is,
therefore, a local act, within the meaning of section 18, article
IIT of the Constitution.
It remains to be determined whether the rights and privi-
leges granted are exclusive, within the meaning of the Consti-
tution.
By section 3 of the act in question, the Long Sault Devel-
opment Company is given the right “ to erect, construct,
maintain, operate and use such dam or dams, canal or canals,
reservoir or reservoirs, gates, sluices, trunks, pipes, bulkheads,
piers, flumes, abutments and other works appurtenant thereto,
as may be proper or useful for the purpose of the development
of water power and of electrical power and energy therefrom,
at such point or points upon or adjacent to the south shore of
the St. Lawrence river, near Long Sault island or Barphart’s
island, and upon the said islands, or either of them, and be-
tween said islands, and between said islands or either of them
and the shores of the said river and Sheik’s island (but not
across the international boundary line unless consented to by
the Dominion of Canada), as may be selected by said corpora-
tion, and also in and upon so much of the said river and the bed
thereof as lies to the south of the international boundary line, at
or near Long Sault island or Barnhart’s island, either independ-
ently or in connection with like works now erected, or to be
erected, in so much of said river and the bed thereof as lies to
the north or Canadian side of said international boundary
line, and upon and adjacent to the northerly shore of said
river ; and to erect, construct, maintain, operate and use a
power-house or power-houses, and conductors, cables, wires,
insulators and other appliances in connection with the said
works for the development of electrical power and energy ;
and also to take and use the waters of said river at and above
the points of location of said works heretofore authorized.”
Stronger or more comprehensive or more definite language
could not be used by the Legislature in conferring upon the
company the right, power and privilege of controlling, for the
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ER IPED LI PISS OAR SR AAO SR NOL ee ON BY SE SEN UID TERETE YR MSS DOLE
a . —
217
purpose of electrical power and energy, the waters of the St.
Lawrence river at this point.
It might be argued, were the company limited to the use
and development of the water power in and about the Long
Sault island, that the privilege granted is not exclusive, but
when it is considered that the company is given the right to
develop water- power, at and above said place, the conclusion is
inevitable that an exclusive privilege is granted, the limita-
tions of which, in respect to location, are not defined, and may
be asserted by the company to prevent all others from enjoy-
ing a similar privilege, not only at but above Long Sault
island. How far above is not provided.
Authority is likewise conferred upon the corporation to
erect all structures that itmay deem proper or useful for any
of the purposes described, at any points on the south shore
or the north shore of the St. Lawrence river, upon any of the
three islands named, or between the islands or in the bed of
the river, either independently or in connection with like
works now erected, or to be erected, in so much of said river
and the bed thereof as lies to the north or Canadian side of
said international boundary line, and upon and adjacent to the
northerly shore of said river.
The act, therefore, not only grants to the corporation the
exclusive right to develop and utilize all the water-power in
and around Long Sault island, but also contemplates a more
comprehensive, general and exclusive control of the waters of
the St. Lawrence river at and near that vicinity, by construct-
ing, independently or in connection with works at present
existing or to be hereafter constructed on the Canadian side
of the river. If the Long Sault Development Company is
able, either through connections with a company or companies
on the Canadian side, or by independent action, to obtain a
similar grant of power on the Canadian side, there can be little
question about the exclusive nature of the privileges and power
it would thereby be permitted to exercise.
In addition to all this, it is important to note that the power
granted is perpetual.
In view of the language above quoted and in the light of all
of the facts at hand, the conclusion seems irresistible that the
Legislature of 1907 intended and endeavored to grant to the
Long Sault Development Company the exclusive right, either
a as aan na aca a techs ea ante —
218
independently or in connection with other corporation or cor-
porations, to control all of the water-power that could be
generated at that place inthe St. Lawrence river and within
a vague and undefined area “ above that point,” not only for
the present generation, but in perpetuity.
Under this grant, if valid, succeeding Legislatures are
prevented from granting privileges to any individual or cor-
poration to utilize any of the water-power at the Long Sault
rapids. It may also be claimed by the Long Sault Develop-
ment Company that, because of its right to utilize the water
above Long Sault island, no grant can be made by the Legis-
lature, at least within a reasonable distance above the point in
question, without impairing the charter of the Long Sault
Development Company.
The company might also maintain that any structure here-
after authorized, above or below the location in question,
which would in any wise affect the hydraulic head or lessen in
any degree the efficiency of any of the structures of the Long
Sault Development Company, would financially damage, and
thereby impair, the exclusive rights, powers and privileges
which the Long Sault Development Company received from
the Legislature.
I believe that section 18 of article III of the Constitution
was adopted for the very purpose of preventing such grants as
this. At the time when this amendment was adopted, in 1874,
nearly all of the available power sites within the State had
been granted by the Legislature by special acts, with scarcely
any revenue to the State.
The preservation to future generations of the water-power
not theretofore granted, and which was practically located
in the two border streams, the Niagara and the St. Lawrence,
was a vital, essential and importaut duty. By section 18 of
article III the people undertook to put an end to the granting
of these exclusive privileges, and it is not unreasonable that
they had in mind the undeveloped water-power of these two
great streams. In any event, it was plainly declared in that
provision that no exclusive privilege, immunity or franchise
should be thereafter granted by the Legislature.
The charter in question plainly violates this provision,
when we consider the causes that led to the adoption of, and
the purpose sought to be obtained by this amendment.
a a
There are many decisions of the courts interpreting this lan-
guage of the Constitution, but none that I have been able to
find which determine this question contrary to the conclusion
which I have reached.
The terms of the Constitution are so plain, simple and
comprebensive as to leave little room for construction. Noth-
ing can be added to or taken from the language employed to
make more plain the object aimed at. That object, as pro-
vided by the language of the provision, and as uniformly in-
terpreted by the courts, is twofold: 1. To prevent monopoly ;
2. To leave open competition.
Keeping these objects in view, there is to my mind little
difficulty in applying the constitutional mandate to any given
state of facts.
It is urged, upon the authority of Matter of Application of
Union Ferry Company, 98 N. Y., 139, that a privilege, im-
munity or franchise is not exclusive within this provision of
the Constitution, which does not, by its terms, prohibit the
enjoyment of a similar privilege, immunity or franchise by
someone other than the grantee. This is founded upon the
language of the court in that case, to be found at page 153,
which is as follows :
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“ The exclusiveness prohibited is one which is created
by the terms of the grant, not that which results from
the nature of the property or right granted.”
In that case the court was considering an act of the Legis-
lature passed in 1882, entitled “ An act to provide additional
ferry slips and facilities in New York city for the ferries run-
ning between Whitehall street in the city of New York and
Brooklyn.” At page 148 the court said :
“The whole frame and context of the act are con-
sistent with the view that its objects was not to grant
any privilege or franchise to the Union Ferry Com-
pany as a corporation, but as stated in the title of the
act, to add to the ferry slips and facilities of the par-
ticular ferry which the company named was, at the
time, operating.”
The court further held, in sustaining the constitutionality
of that act, that the additional facilities granted by the act
would ‘»crease the capacity, not only of the grantee, but of
all future lessees of the ferry, to meet the wants of the public,
and that those increased facilities would be enjoyed by the
grantee only under its lease from the city, and would ter-
minate with the lease and pass to succeeding lessees, and
that the property could not be used for any purpose except
the exercise of the ferry franchise granted by the city, and
in whose hands that franchise might be from time to time.
The court placed particular emphasis upon the fact that
the privilege was not exclusive in respect to the character of
the rights granted, nor indefinite in respect to the time of its
enjoyment, and pointed out as exempting the statute from the
constitutional inhibition, that the right granted, even while
enjoyed by the Union Ferry Company could also be enjoyed
by other companies and that the termination of the lease of
the Union Ferry Company, the particular right granted to
that company would pass to its lessee.
The facts of this case, it will be seen, immediately take it
outside of the facts in the Long Sault case. The reasoning of
the court in the Union Ferry Company case is not antagonistic
to the contention that an exclusive privilege was granted to
the Long Sault Development Company.
At page 151 the court cites cases of exclusive privileges
condemned by this provision of the Constitution, among them
the Cayuga Bridge Company v. Magee, 2 Paige, 116, in which
case the charter of the Cayuga Bridge Company provided that
it should not be lawful to erect any bridge or establish any
ferry within three miles of the place where the bridge of the
company should be erected, or to cross the river within three
miles of the bridge without paying toll.
If we apply that doctrine to this case it condemns the
charter. While the act dees not expressly provide that no
other company shall enjoy the privileges cf the Long Sault
Development Company within the area covered by the grant,
yet the terms of the grant itself make it impossible that any
other grant could be made by the State, or that any other
company or any other individual, even the present riparian
owners, could utilize the water for power purposes in that
portion of the river.
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ROG FRE ORT RNS LEER SINE LN SER ELE SILC LT LEIR
-
221
I can see no distinction in principle between the provisions
of an act of the Legislature which expressly provide that there
shall be no competition within a given area, and the provisions of
an act which makes it impossible that there should be. To
hold that a different principle applies is to give an absurd
construction to this most vital constitutional principle. Certain
it is that the Union Ferry Company case is not authority for
any such contention.
That case further cites, as an instance of an exclusive privi-
lege, the decision of the Court in Mohawk Bridge Company
vs. U. & S. R. R. Co., 6 Paige, 554. In that case the Mo-
hawk Bridge Company received a charter to cross the Mohawk.
The charter prohibited ferries crossing the river one mile
above and one mile below.
Suppose in that case the Legislature, instead of providing
that no other ferries should cross one mile above or one mile
below, had made a grant to the Mohawk Bridge Company of
the waters of the Mohawk and the bed of the stream, one mile
above and one mile below. It is plain that such a grant would
as effectively prevent other ferries from crossing within that
area as if the statute expressly so provided.
I am well aware that, in the Union Ferry Company case,
the Court of Appeals announced the principle that the right
granted is not exclusive simply because it is impossible that
any other person or corporation should enjoy that right, hold-
ing that, where it is important to the public interest that a
privilege should be exercised by someone, the State mnst nec-
essarily have authority to select the grantees, and that in such
a case the exclusiveness is not produced by the grant, but re-
sults from the nature of the thing granted.
That doctrine cannot be so extended as to protect a grant
which, although in terms is not exclusive, yet in addition to
the privilege granted, grants other rights and privileges and
properties which, upon the face of the act itself, make the
privilege exclusive.
The court instances, as supporting this construction,
grants of charters to toll bridge companies, grants of lands to
railroad companies for depots, car-yards, etc. These rights,
of course, are to a certain extent exclusive, but the grant of a
right to build a toll bridge is based upon an obligation on the
part of the company to serve the public by improving the
Bae ror aero,
Ni-P PRE Ay re a ee "
KET RRS ERS et RRS LRM 2 esr PS PERE A ERA ie Ra MP One ok
222
highway over which toll is taken. The right granted is in re-
turn for a public service rendered, while the rights granted to
railroad companies to acquire depots, car-yards, etc., are
necessary for the enjoyment of the franchise given to the com-
panies, and that brings the case within an entirely different
principle. In both these cases the use is a public one, and
essential for the purpose of enjoying the charter granted by
the State, and it is within the power of the Legislature to de-
termine the necessity of the grant, and when it so determines,
keeping within the line so clearly marked out by the court in
the Union Ferry Company case, the grant is not violative of
the Constitution.
The grant made to the Long Sault Development Company
is not within the protection of these principles. It is exclusive
within a certain undefined area. The powers granted are not
in the interest of the public, and the important ones, such as
the grant of the title to the bed of the river, are not essential
to the enjoyment of the privilege of developing a water power
and electrical energy. It prevents competition ; it creates a
monopoly in as clear and emphatic terms as could possibly be
used by the Legislature.
I think it is clear, therefore, that it violates section 18 of
article III of the Constitution of the State of New York.
Tse Acr in Question VioLaTEs SEcTION 7 oF ARTICLE VII oF
THE STATE CONSTITUTION, WHICH PROVIDES THAT THE
LanpDs OF THE STATE NOW OWNED OR HEREAFTER AC-
QUIRED, CONSTITUTING THE ForEST PRESERVE, AS NOW
° Frxep By Law, SHALL BE FOREVER KEPT aS WILD ForREst
LANDS AND SHALL NOT BE LEASED, SOLD OR EXCHANGED
OR TAKEN BY ANY CORPORATION, PUBLIC OR PRIVATE.
The bed of the St. Lawrence river is within the boundaries
of the county of St. Lawrence. Chapter 332 of the Laws
of 1893 (article VI, chapter 43, of the General Laws) provides :
“ Section 100, Forest Preserve. The forest preserve
shall include the lands now owned or hereafter acquired
by the state within the counties of * * * St.
Lawrence * * * except
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“1. Lands within the limits of any village or city
and
“2. Lands, not wild lands, acquired by the state on
foreclosure of mortgages made to the commissioners
for loaning certain moneys of the United States usually
called the United States deposit fund.”
This statute was in force when the present constitution was
adopted, when went into effect January 1, 1895, and contained
the following clause :
“ Article VII., Section 7. The lands of the State,
now owned or hereafter acquired, constituting the
forest preserve as now fixed by law, shall be forever
kept as wild forest lands. They shall not be leased,
sold or exchanged, or be taken by any corporation,
public or private, nor shall the timber thereon be sold,
removed or destroyed.”
This provision of the Constitution read in connection with
the provisions of the statute then in force leads inevitably to
the conclusion that the lands in question are within the forest
preserve and may not be alienated. The Court of Appeals in
People vs. Fisher, 190 N. Y., 480, in considering what are
forest preserve lands uses the following language :
“The language of the statute thus specifying the
lands which are included within the forest preserve is
clear and definite and does not in itself require con-
struction. Its plain and positive language is made
even more certain by the fact that some exceptions are
stated therein.”
The bed of the St. Lawrence river covered by the grant in
question, being within the county of St. Lawrence and the
State of New York is land owned by the State, constituting
the Forest Preserve as defined by chapter 332 of the Laws of
1893.
There is no dispute that the land in question is so located,
otherwise the Legislature of the State of New York could not
grant title to these lands, as it undertook to do in the grant
to the Long Sault Development Company.
224
My attention has been called to the very able brief of
Henry W. Taft, Esq., in respect to the constitutionality of the
charter of the Long Sault Development Company in which he
argues at length, and with much force, that the lands in ques-
tion were not intended to be included within the definition of
the Forest Preserve, and therefore, are not within the in-
hibition of article VII. of section 7 of the Constitution.
I am unable to follow his reasoning and to give the lan-
guage of the statute and the language of the Constitution any
other than its plain and natural meaning. Nothing is left
open for construction. I do not see how the statute defining
the Forest Preserve could use more apt language in including
the waters under the St. Lawrence river than it has used;
nor how the constitutional convention could have more clearly
expressed the policy of the State against alienating these
lands.
Tae Act or 1907 1s a Private Britt Waicn Empraces More
THAN ONE SUBJECT AND Is DEFECTIVE AND ERRONEOUS
IN ITs TITLE.
Article III., section 16, of the State Constitution provid
that : :
“No private or local bill, which may be passed by
the Legislature, shall embrace more than one subject,
and that shall be expressed in the title.”
The subjects embraced in the bill in question are as
follows :
1. The creation of the corporation.
2. The construction, maintenance and operation of con-
struction at or near Long Sault island.
3. The development of power from the waters of the St.
Lawrence.
4, Constructing and maintaining a bridge.
5. The manufacturing of commodities.
6. The levying and taking of tolls.
7. The erection of transmission appliances.
8. The granting of the title to the bed of the St. Lawrence
river to the corporation.
Tc a Ra iL Ea Ng a Ra Ra EY
225
9. The creation of an exclusive right in perpetuity, to the
use of all the water power in Long Sault Rapids.
10. The provision for alleged reasonable and proper re-
muneration to the State for such exclusive privileges.
Members of the Legislature from an examination of the
title of this bill would not expect to find such extraordinary and
exclusive grants as contained therein. The title of the bill
does not indicate that the right to take toll is given to the
company ; nor that the title to the bed of the St. Lawrence
river is to be conveyed tothe corporation. Development of
water power in the river is readily accomplished without an
appropriation or occupancy of the bed of the stream. The
title of the bill does not indicate that the charter granted is
perpetual. The same criticism applies in respect to the other
provisions of the bill pointed out above.
The Court of Appeals in Coxe vs. The State, 144 N. Y.,
396, declared unconstitutional, as violative of the provisions of
the Constitution we are here considering, an act entitled:
“An act to authorize the drainage of marsh lands” which
granted privileges of an important character ; constituted a
corporation, to which it gave power to reclaim and drain, from
time to time, wet or overflowed lands and tide-water marshes
on or adjacent to Staten Island and Long Island. Power was
also given to enter upon all lands and waters for the purpose
of making surveys and to use and own the right and title of
the State in and to all the lands under water that may lie
within or between said dykes and the present shore line, upon
the payment to the Treasurer of the State of such sum of
money as should be determined by a commission to be ap-
pointed by the Governor, to be a fair value of such lands
under water and belonging to the State. The Court of Appeals
said at page 408, in speaking of this :
“It created a private corporation and its operations
affected four counties in the state. The subjects em-
braced in it were the creation of the corporation ; the
authority to drain and reclaim tide-water marsh lands ;
to levy and collect assessments ; to exercise the power
of eminent domain and grant of lands belonging to the
state. We have seen that the purpose of the act, as ex-
pressed in the title, was the authority to ‘drain marsh
% IGE A Boe Set RB f BLES YE OS 3) GR bed TP Ah AI RITE pel UNO RIS Regen
Se.
lands.’ Without inquiring whether any of these sub-
jects are germane to, or so connected with the one ex-
pressed in the title as to escape the objection, it is quite
clear that no citizen or member of the legislature would
expect to find such an extraordinary grant from the
state of lands under water in the body of a bill with
such a title, and that is a fair test of the question.”
226
The act of the Legislature condemned by the court in the
above case was not more clearly violative of the provision of
the Constitution under consideration than the act incorpo-
rating the Long Sault Development Company. Nothing in
the title, as I have before stated, indicates that the company
is to become the owner of land under water ; is to be permit-
ted, in connection with other companies or acting independ-
ently, to bridge the St. Lawrence at that point ; to have exclu-
sive control in perpetuity of the waters in the vicinity of Long
Sault island and above and below it ; to charge toll, and to do
the other numerous acts which, by the terms of the statute, it
is permitted to do. For instance, the heading provides that
one of the purposes of the act is “to improve navigation in
the St. Lawrence,” while there is nothing in the act to require
the company to improve navigation, or to do anything more
than is necessary to accomplish the purposes of its corporate
existence, provided the navigation of the St. Lawrence is not
injured. Many affirmative acts are to be performed by the
company, every one in aid of its corporate purposes, not one
for the improvement of navigation.
I believe, therefore, that this bill violates section 16 of
article III of the Constitution of the State.
Tue Acr 1s InvaLip AND INOPERATIVE 80 FAR AS IT PROVIDES
FOR THE ALIENATION BY THE STaTeE OF TITLE TO THE
LaNDs IN THE BED oF THE St. LAWRENCE.
I think it is within the spirit of the resolution that I should
also call the attention of your honorable body to the fact that
the act in question is in excess of the power of the Legis-
lature—in undertaking to divest the people of the State of the
title to the lands under the St. Lawrence.
The act in question provides that after Congress shall
—_—
227
authorize the construction of the dams, locks and canals
authorized by the act, and after the payment by said corpora-
tion into the treasury of the State of the fixed sum of $10,000,
the Commissioners of the Land Office shall, upon application
of said corporation, grant unto it the title and interest of the
people of the State in and to the lands under the waters of the
St. Lawrence river, to be covered or occupied by said works
and locks and power houses, ete.
Provision is herein made for the complete surrendering of
the title of the people of the State to the company, upon its
complying with the terms of the act. This, neither the Legis-
lature nor the Board of Land Commissioners has power to do.
Tue TITLE of THE StraTE oF New York To Lanps UNDER
NavicaBLE Waters 18 A SoverREIGN Ricut RatTHEeR
THAN A PROPRIETARY TITLE.
The State holds such lands in trust for the benefit of the
public and that trust the State is powerless to divest itself of.
This doctrine has been clearly announced whenever the ques-
tion has been before the courts, both in State and in federal
tribunals, and is not open to doubt. In the case of Coxe vs.
The State, 144 N. Y.. 396, a case very similar to this, the court
announced this principle in the following language :
“‘ The question is governed in this state by the rules
of common law, modified in some respects by statute
and adapted by the courts to such changes of conditions
as existed here. That the dominion and ownership of
such lands (under navigable streams) is in the sovereign
for the benefit of the public has long been settled. Such
dominion and ownership of property generally implies
the power of absolute disposition, but with respect to
the land under navigable or tide waters an important
limitation has been engrafted upon this power from the
nature of the title. The title of the state to the sea-
coast and the shores of tidal rivers is different from the
fee simple which an individual holds to an estate in
lands. It is not a proprietary, but a sovereign right,
and it has been frequently said that a trust is engrafted
upon this title for the benefit of the public of which the
state is powerless to divest itself.”
228
The same doctrine is announced in People vs. N. Y. & S. I.
Ferry Co., 68 N. Y., 71, aud numerous other cases.
The United States Supreme Conrt states the same doctrine
in Illinois Central R. R. Co. vs. Illinois, 146 U. S., 387. The
court was there considering the validity of an act of the IIli-
nois State Legislature, repealing a former act of that Legis-
lature, which former act undertook to grant to the Illinois
Central Railroad Company certain lands under the waters of
Lake Michigan. Upon that point the court said :
“ The State holds the title to the lands under the
navigable waters in trust for the people of the State
that they may enjoy the navigation of the waters, carry
on commerce over and have liberty of fishing therein,
freed from the obstruction or interference of private
parties. * * * The control of the State for the pur-
poses of the trust can never be lost except as to such
parcels as are used in promoting the interests of the
public thereon or can be disposed of without any sub-
stantial impairment of the public interest in the lands
and waters remaining. * * *
“The State can no more abdicate its trust over
property in which the whole people are interested, like
navigable waters and soils under them, so as to leave
them entirely under the use and control of private par-
ties except in the instance of parcels mentioned for the
improvement of the navigation and use of the waters, or
when parcels can be disposed of without impairment of
the public interest in what remains, than it can abdicate
its police powers in the administration of government
and the preservation of the peace.”
There are numerous other cases in the United States court
holding the same principle.
The title to this land is not necessary for the enjoyment by
the company of all of the power incident to the development of
water and electrical power at that point. It is not a grant for
any public use or in which the public at large is interested, or
by which the public is benefited. It clearly, therefore, contra-
venes the very nature of the State’s sovereign control in
this respect.
229
It may be argued that this is not important at present, in
that it does not arise until Congress has acted ; and also, that
the powers granted to the company, being capable of full
enjoyment without the grant of the title to the bed of the
stream, that, therefore, to that extent the act may be sus-
tained. As the court said in the Coxe case :
“ The various provisions of the act are so mingled
together and dependent upon each other, that it is not
clear that any of them can stand independently.”
I believe, therefore, that this act should be condemned
also, because of the provision which provides for the grant of
title in the company of the bed of the St. Lawrence river at the
point in question.
I believe, also, that this grant which is in excess of the
power of the Legislature does not constitute an obligation on
the part of the State toward the company, which is beyond the
power of revocation by a subsequent Legislature.
Tse Remepy.
THE RESOLUTION FURTHER REQUESTS AN OPINION WHETHER OR
NOT ANY PRESENT ACTION OR PROCEEDINGS MAY BE BROUGHT
BY THE STATE TO ASCERTAIN JUDICIALLY WHETHER THE
ACT IN QUESTION CONTRAVENES THE CONSTITUTION.
The grant made is ineffective until Congress shall authorize
the construction of the dams, locks and canals authorized by
the act. This is conceded by the act itself and is necessarily
80, for the reason that the St. Lawrence is a national boundary,
is a navigable river, and is, aside from regulation by treaty
between this government and Canada, subject to control for
purposes of navigation and military defense by the United
States government and Canada to the extent of their respective
ownerships. In other words, the federal control of the
St. Lawrence river to the national boundary line is para-
mount to the control by the State for the purposes of naviga-
tion and military defense only. I believe it to be the law that
the State cannot make a grant of a navigable river except sub-
ject to this paramount right of the federal government, which
Te oad tad PhS LIL REL GAL OP LINES
mg
230
right can only be enjoyed for the purpose of navigation and
military defense.
Until, therefore, the Federal government, in conjunction
with the Canadian government, or independently, shall recog-
nize this grant as not interfering with the Federal use and
control of the waters of the river at this point, the grant does
not become effective. No legal proceedings, therefore, are
necessary and it is not clear that any can be maintained in
the courts to determine the constitutionality of that grant,
especially as no power or privilege can be exercised by the
grantee concededly until the Federal government, through
Congress, has authorized the construction of dams, locks and
canals as authorized by the act. I believe, however, that the
Legislature has power in this case either to repeal the act
or to direct the Attorney-General to bring an action to procure
a judgment vacating and annulling the act of incorporation.
The latter power of the Legislature can be exercised only if
the Legislature reaches the conclusion that the act was pro-
cured by fraudulent suggestion or the concealment of a mate-
rial fact made by or with the knowledge and consent of the
persons, or any of them, incorporated (Section 130, General
Corporation Law).
The power of the Legislature to repeal an act passed by
a former Legislature, when deemed in conflict with the
Constitution, I think is unquestioned. It has been exercised in
the past by the Legislature with the approval of the court.
Chapter 257 of the Laws of 1875 repealed a grant of land
under water made by a previous Legislature. This act
was before the court in Coxe vs. The State, 144 N. Y., 391.
At page 403 the court discusses the terms of the repealing
act and assumes that it was within the legislative power.
In that case no question was made even by the corpo-
tation affected of the power of the Legislature to repeal
the grant. In Illinois Central Railroad Company against
Illinois, 146 U.S. Reports, 387, the United States Supreme
Court held valid and effective an act of the Legislature of the
State of Illinois repealing an act of a former Legislature
undertaking to grant to the Illinois Central Railroad Company
the right and title of the State of Illinois in and to the sub-
merged Jands constituting the bed of Lake Michigan and lying
east of the tracks and breakwater of the Illinois Central Rail-
231
road for the distance of one mile. The court in that case held
the principle that is contended for in this opinion, that this
grant exceeded the power of the Legislature in that the State
could not alienate to a corporation its ownership and control
of lands under navigable waters but held them in trust for the
people, and that to that extent the act of the Legislature was
invalid and the repealing act was valid and effective.
CONCLUSION.
It is my opinion, therefore, that the powers and privileges
granted the Long Sault Development Company by chapter 355
of the Laws of 1907 was an invalid and unauthorized grant for
the reasons :
1. That the act in question is unconstitutional in that it
contravenes section 18 of article III of the State Constitution,
which provides that the Legislature shall not pass a private
or local bill granting to any private corporation, association or
individual any exclusive privilege, immunity or franchise
whatever. This bill is private and local and grants an ex-
clusive privilege, as contemplated by section 18 of article III
of the Constitution.
2. It violates section 7 of article VII of the State Constitu-
tion, which provides that the lands of the State now owned or
hereafter acquired, constituting the Forest Preserve, as now
fixed by law, shall be forever kept as wild forest lands, and
shall not be leased, sold or exchanged, or taken by any cor-
poration, public or private.
The bed of the St. Lawrence river, which, by the act in
question, is directed to be conveyed to the Long Sault Devel-
opment Company, is owned by the State and was so owned at
the time the provision of the Constitution was adopted, and
was included within the Forest Preserve, as defined by section
100 of chapter 332 of the Laws of 1893, describing the lands
included within the State Forest Preserve.
3. The act in question is a private bill and embraces more
than one subject, and is, therefore, in violation of article III,
section 16, of the State Constitution, which provides that no
private or local bill which may be passed by the Legislature
1 Sedat NR Wis. SG CER SOS Sets UREA eat RM RECS odin Seat aka
232
shall embrace more than one subject, and that shall be ex-
pressed in its title.
4. The act is invalid as being in excess of the powers of
the Legislature, in that it provides for the alienation by the
State to the Long Sault Development Company of title to the
lands in the bed of the St. Lawrence river. The title of the
State in these lands is a sovereign right, rather than a pro-
prietary title. It is inconsistent with that right, which must
be exercised for the benefit of the whole people, that the title
to the bed of a navigable stream should be granted in fee to a
private corporation.
I do not deem it within the scope of the resolution that I
should call the attention of your honorable body to the great
disparity between the value of the rights and privileges under-
taken to be granted to the Long Sault Development Company,
and the revenue therefrom reserved to the State. While thai
is not the least striking provision of this most remarkable
grant, yet it is a question of policy and of economy which it is
competent for the Legislature to determine, and is not, I deem
it, a question upon which the Legislature desires or needs my
opinion.
All of which is respectfully submitted,
Tomas CaRMopy,
Attorney-General.
To the Honorable, the Senate of the State of New York.
Dated, December 30, 1912.
ELBE LOOPY IE AI ETE CRIN SRE SIN TCT
233
APPENDIX B.
STATE OF NEW YORK,
EXECUTIVE CHAMBER,
AuBany, January 13, 1913.
To THE LEGISLATURE :
In my recent Message to your Honorable body I recom-
mended for your careful consideration, the conservation of
the natural resources of the State, and their development and
utilization for the benfit of all the people.
We are the trustees of future generations. We must
protect and preserve the rights of those who come after us.
We should be true to our trust. This is the duty of the day,
and the real solution of the problem of true conservation.
The State of New York, in my opinion, is now committed
to the policy of conserving all of its natural resources, and
particularly of developing our vast water powers, so that they
may be of benefit to all the people of the State.
In this connection I desire to call your official attention to
the unconstitutionality of a charter which was attempted to
be granted by the Legislature of 1907 to the Long Sault
Development Company by Chapter 355 of the Laws of 1907.
Pursuant to a resolution of the Senate of this State, the
Attorney-General, after careful and exhaustive consideration,
transmitted to the Senate on January 1, 1913, in the form of
an opinion, his conclusions as to the validity of the said act.
Suffice it to say that I am fully in accord with the able
opinion of the Attorney-General, which clearly demonstrates
that the said act is unconstitutional and void for the following
reasons :
1. That the act in question contravenes Section 18 of
Article III of the State Constitution, which provides that
the Legislature shall not pass a private or local bill, granting
to any private corporation, association or individual any
exclusive privilege, immunity or franchise whatever. This
bill is private and local and grants an exclusive privilege, as
contemplated by Section 18 of Article III of the Constitution.
234
2. It violates Section 7 of Article VII of the State
Constitution, which provides that the lands of the State now
owned or hereafter acquired, constituting the Forest Preserve
as now fixed by law shall be forever kept as wild forest lands,
and shall not be leased, sold or exchanged or taken by any
corporation, public or private.
The bed vf the St. Lawrence River, which, by the act in
question, is directed to be conveyed to the Long Sault De-
velopment Company, is owned by the State and was so owned
at the time the provision of the Constitution was adopted,
and was included within the Forest Preserve, as defined by
Section 100 of Chapter 332 of the Laws of 1893, describing
the lands included within the State Forest Preserve.
3. The act in question is a private bill and em-
braces more than one subject, and is, therefore, in viola-
tion of Article III, Section 16, of the State Constitution which
provides that no private or local bill which may be passed by
the Legislature shall embrace more than one subject, and that
shall be expressed in its title.
4. The act is invalid as heing in excess of the powers of
the Legislature, in that it provides for the alienation by the
State to the Long Sault Development Company of title to the
land in the bed of the St. Lawrence River. The title of the
State in those lands is a sovereign right, rather than a pro-
prietary title. It is inconsistent with that right, which must
be exercised for the benefit of the whole people, that the title
to the bed of a navigable stream should be granted in fee to a
private corporation,
The Attorney-General, the State Conservation Commission,
and myself are convinced that this act is void and unconsti-
tutional and that the appropriate action to be taken by the
Legislature at this time is to repeal the said act.
Let me say further that I am advised by the Comptroller
that certain sums of money have been paid into the State
treasury by the Long Sault Development Company, as re-
quired by certain terms of the said act. I respectfully suggest
to your Honorable body that such sums should be repaid to
the Long Sault Development Company, together with interest.
In regard to any valid and legal claims which the Long
Sault Development Company may have against the State of
baa See ae pd ah tt eae RG cote esig ete eT atta eat ee ere ae ae ec et or mae
235
New York, by reason of the repeal by the Legislature of the
said act, I suggest that the same be referred to the Board of
Claims for its determination.
Not only is said act violative of the provisions of our State
Constitution, but its provisions are in other respects improvi-
dent, unwise and indefensible, both from an industrial and an
economical point of view.
The State Conservation Commission reports :
“ The vast power available at this place constitutes
one of the State’s greatest natural resources. The ad-
vances in the art of electrical transmission makes it
economically feasible to use the same throughout the
State. At present itis going to waste. It is for the
interest of all that this power should be developed and
utilized by the people and for the people. Cheap power
will enlarge the use of electricity for domestic and com-
mercial purposes ; stimulate industry ; increase our
wealth and add to our population. Private interests
should not be allowed to exploit and monopolize the
same. The State should develop this power for the
benefit of the ultimate consumer.”
Investigations made by the engineers of the State Conser-
vation Commission demonstrate, among other things, that a
full economic development at the Long Sault Rapids will
produce one million (1,000,000) horse-power, of which, by
treaty arrangement with Canada, itis to be expected that New
York will receive no less than one-half. It is hard to conceive
of the vastness of five hundred thousand (500,000) horse-
power, transmuted into electrical energy. It is nearly three-
quarters of the sum total of all the water powers now developed
in New York State, including that at Niagara. It is estimated
to be more than sufficient to run one-third of all the industries
of our State, which are now operated by steam power, exclu-
sive of steam railways, but inclusive of electric railways.
These two facts may help to show the importance of this vast
power to the industrial welfare of our State.
This immense power, so valuable to our people, is ata
transmission distance of 340 miles from Now York City, or
236
about 40 miles nearer than Niagara Falls. It is only 180
miles from Syracuse and about the same distance from Albany
Great strides are being made in improving mechanical con-
trivances for transmitting hydro-electric power under high
tension, and recent inventions and improvements make it
probable that in the near future such power can be carried
and transmitted with industrial and economical efficiency over
vast distances.
At present it is reported as practicable to transmit power
from the Long Sault Rapids to New York City for steady,
continuous loads much cheaper than such loads can now be
carried with steam power. This will inevitably result in a great
saving to the consumer, and be of inestimable value to the
State.
In order that we secure for all our citizens the many and
the lasting beneficial results of the proper development of our
natural resources, particularly of our now unused water powers,
in accordance with our constructive policy in these matters, to
which our State now stands committed, I respectfully recom-
mend that Chapter 355 of the Laws of 1907—the Long Sault
Development Company’s charter—be immediately repealed.
Wu. SuLzer.
237
APPENDIX C.
List of Grants made by the State of New York subse-
quent to the General Dam Act of 1813, authorizing the con-
struction and maintenance of Dams by Corporations and
Individuals :
Laws Period Terms of Grant Affecting Con-
River of trol of Navigati
Year | Chap. Grant Sette alana
1813 34 [A creek Unlimited |Consent of President and Di-
rectors of town corporation to
be obtained before erection of
dam.
87 |Susquehanna 10 Yrs. {Grantee shall permit improve-
ments to navigation and main-
tain a lock, not obstructing
navigation.
49 |Skenando Creek |Unlimited |None
62 |Cohocton Creek * Grantee to construct a lock to
render passage of boats safe
and not to divert water from
J. 1.’s Mill.
71 |Susquchanna 24 Yrs. {Grantee to maintain a lock not
obstructing navigation.
135 |Susquehanna Unlimited |Grantee to erect an apron for
passage of all bouts.
148 |Harlem re Dam to be built so as to admit
passage of boats.
168 |Susquehanna si Grantee to provide an apron
allowing navigation.
1814 | 137 |Susquehanna 15 Yrs. {Grantee to maintain a lock not
i +s obstructing navigation.
1815 98 |Oneida Creek Unlimited |Grantee to maintain a lock
allowing passage of boats.
196 |Canesteo 2 el ¥ *
203 | Butternut Creek ae Grantee to keep creek navigable
1816 73 |Oneida Creek = Grantee to keep and repair a
ae lock for safe passage of boats.
128 |Conbocton sa Grantee to erect a lock for safe
passage of boats.
139 |Limestone Creek 4 Grantee to make lock for pas-
sage of boats where creek is
navigable
160 |Neversink 25 yrs. None
193 |Butternut Creek |Unlimited |Grantee to make a lock allowin
assage of boats where cree
is navigable.
1817 44 |Canandaigua Out- ¢ Grantee to maintain a lock allow-
let ing passage of boats.
45 = “wees Out- es " " a
et
169 |Chenango ae Apron to be maintained for pass-
age of rafts. Not to impede
navigation.
RET MAE LI GCE LEN AR
1821
1822
1823
1824
1826
ERR HGR et
River = Terms of Grant Affecting Con-
Grant trol of Navigation.
Canisteo Unlimited |Grantee to maintain a lock for
passage of boats.
Susquehanna 15 Yrs. se as ae
Conhocton Creek |Unlimited |Grantee to keep and repair a
lock for safe passage of boats.
Conhocton . Grantee to maintain a lock for
passage of boats.
Chenango i Grantee to maintain apron for
passage of boats. Not to im-
pede navigation.
Canascroja Creek - " Grantee to keep in repair lock
: for passage of boats.
Outlet of lake in None
Summit Ms
Susquehanna 20 Yrs. Grantee to allow no obstruciion
to navigation, and if improve-
ments to navigation be deemed
necessary, grantees shall per-
mit same.
Susquebanna Unlimited |At least one-half of river to re-
main unobstructed by dam.
Otselic Creek ce Not to obstruct navigation
Susquehanna is None
Conhocton = Grantee to construct a lock allow-
bent passage of boats.
Susquehanna 120 Yrs. o obstruction to passage of
boats. Grantee to improve
navigation by locks if deemed
expedient.
Genesee Unlimited |Grantee to construct a lock to
allow passage of boats at high
water.
Mohawk ay None
Canisteo sy Grantee to erect a lock allowing
passage of boats.
Conhocton - - i
Oneida Sy Not to obstruct navigation.
Tioga Dam to admit safe passage and
to be destroyed if navigation
requires.
Onandaga Creek a None
Tioga *y Grantee to construct an apron
Conhocton ~ None
Susquehanna = Not to obstruct free passage of
boats.
Tioga = Grantee to erect an apron or
lock.
Susquehanna = Not to impede or obstruct free
passage of boats.
Genesee = None
Genesee re Grantee to erect an apron or
lock, for passage of boats.
Genesee “ce oe se “oe
Susquehanna se None
Conhocton x Grantee to erect an apron or
lock.
ati:
aE Nate
1827
1829
41
72
River
Terms of Grant Affecting Con-
trol of Navigation.
Eastchester
Pelham.
Black
Lake George
Conhocton
\Genesee
Canisteo
Tioga
Tioga
Canisteo
Tioga
Genesee
Genesee
Onondaga
Tioga
Canisteo
Schroon
Seneca
Genesee
aga Lake
Susquehanna
Susquehanna
Canisteo
Canisteo
A creek between
1 Yrs.
Outlet of Canadar-| -
Unlimited |Grantee to build dam and grist
mill within two years.
Grantees appointed Commission-
ers having control over the
_|_ waters diverted.
Grantee to construct and sustain
a wooden lock. Commission-
ers appointed to supervise.
Grantee to erect and maintain
an apron.
oe “ce “
Grantee to erect and maintain
an apron. If lock is ob-
structed, act to be void.
‘Grantee to erect and maintain
an apron. Commissioners
may have dam removed, if
navigation is obstructed.
se oe ““
Grantee to make an apron or
lock. Jf passage obstructed,
grant to be void.
Grantee to make an apron or
lock. Commissioners may de-
stroy dam if navigation is ob-
structed.
Gravtee to make an apron or
lock.
oe “cc “
,|Wot necessary for grantee to
make canal or locks around
dam.
Grantee to erect an apron or
lock to allow passage of boats.
“ce “e oe
Grantee to erect an apron for
logs and lumber to pass over
dam.
Lock need not be maintained un-
less Commissioners of Canal
Board so require.
Grantee to construct an apron
and acanal for navigation of
boats.
None.
Not to injure navigation.
““ oe
Grantee te erect an apron or
lock. If passage obstructed,
grant to be void.
“ec co
Ee PEIN REI tart er bate ca tt eg NH eas OMA RRR
240
1831
1833
1834
1835
1832
it
— Terms of Grant Affecting Con-
Grant trol of Navigation.
Tioughnioga ‘Unlimited a to maintain an apron or
ock,
142 |Genesee ‘ None.
164 |Tioga es — to erect an apron or
ock.
168 Canisteo “ee e 4“ “ee
801 |Susquehanna 20 Yrs. ~ — to maintain roll-
; ng dam.
$10 |Susquehanna Unlimited ot to obstruct navigation.
83 Oneida ™ rantee to maintain a lock and
good navigation.
101 |Susquehanna “4 ot to injure navigation and not
to extend beyond the middle
.| of the river.
194 |Tioughnioga it Grantee to construct an apron.
254 |Tonawanda Creek * Grantee to construct and keep in
{ repair a lock.
115 ‘eed -— not to injure navigation of
river.
227 Susquehanna ‘i = si se -
290 Susquehanna . Previous act amended, directing
grantee to alter dam to render
passage of boats safe.
41 |Susquehanna 25 Yrs. (Privileges under acts of 1804
and 1806 continued.)
182 Genesee Unlimited /Grantee to erect an apron or
lock.
199 |Canisteo 7 Grantee to construct apron for
passage of boats.
245 Susquehanna “ Grantee to erect an apron or
lock. Court may require a
sluice to be built.
86 Genesee 9 Grantee to erect an apron or
lock.
105 |Tioga “ Grantee to erect an apron or
lock. If passage obstructed,
grant to be void.
188 Genesee “ee “e oe
202 Genesee “ “ “ee “ oe
214 |Mohawk . Canal Commissioners may direct
lock to be erected for pur-
pose of navigation, at any
time.
95 |A creek in the ~ None.
township of Pel-
ham
102 |Susquehanna “iy Grantee to erect a sluiceway.
164 '‘Susquchanna sk fp “ ais sy
239 |Conhocton . Grantee to erect an apron or
lock when necessary.
305 |Ransom Creek 2 Grantee to erect a lock 1$ yrs.
after grant.
5 |Canisteo ey Grantee to erect an apron.
20 Susquehanna 25 Years |None.
(Privileges under act of April
4, 1811, continued.)
SRERONIRA RI” ARR eR NN ORRNRSIW B REPAIR UPD WARNED EEN ED
River i Terms of Grant Affecting Con-
Grant trol of Navigation.
Genesee Unlimited «4 to admit safe passage of
roats.
125 |Susquehanna 25 Years |Grantee to maintain lock and
not to obstruct navigation.
(Privileges under act of March
19, 1813, continued.)
213 |Genesee Unlimited |Grantee to maintain a boat lock.
215 |Big Salmon River ‘ sh Grantee to attach a slope-apron
to dam (repealed by Act of
April 11, 1836).
1836 | 108 |Chemung \ ae sz to construct an apron or
' ock.
212 |Ellicott Creek | “5 None.
889 [Chenango ; ’ Grantee to erect an apron if it
‘ ee necessary to navigate
: ; river.
1837 | 131 |Chemung ! “3 -% to erect an apron or
ock.
190 |Hudson _ None.
226 |Genesee : ot Grantee to make apron or lock.
1838 817 Genesee ‘ a“ “ee “ee “se ae
$24 Genesee “ae 4“ “a “ “
1839 85 |Hammond Creek , “s } + os ¥ ”
1840 57 |Conhocton 7 ™ Grantee to erect an apron or
chute.
98 Canisteo “és “ee “ “ “
133 Schroon “ “a + “ “oe
184 |Canisteo se 5 " te -
148 |Chemung ’ —— a = = 2
1841 97 |Canisteo ' “ “ “ “
1843 | 196 |Genesee ies - = - “i
1846 | 821 |Palmer’s Brook “ s [None.
1848 | 303 |Mead’s Creek « 'l@rantee to maintain apron or
‘| chute.
1850 | 165 |St. Lawrence “©, |None.
169 |Conhocton - ds
1853 | 683 |Chemung ' 2 Grantee to maintain apron and
, F lock.
1854 115 |Any in county of
St. Lawrence j - None.
1855 | 200 [Mohawk pS =
284 [Canandaigua Lake “s _
1882 | 137 |Oak Orchard Creek e $5 9
/| 406 |Hudson i Superintendent of Public Works
: '} to have Control of Navigation.
1883 | 176 |Hudson -¥ Grantees not to affect the flow of
‘| river except as result of dam
for manufacturing purposes.
1884 | 486 |Mohawk _ None
1889 | 474 |Mohawk vg wi
Roeliff-Jansens-Ki)|50 Yrs. “
(Duration
of Corp.)
Genesee Unlimited |Not to impair natural flow.
242
Laws River ~~ Terms of Grant Affecting Con-
Year | Chap p Grant trol of Navigation.
1900 33 |Hudson Forever |None
175 |Hudson 23 7
683 |Hudson e .
1901 | 164 |Hudson * ”
501 |Mohawk es <5
902 589 eon 100 ¥ - i
1 ts. |Not to impair or obstruct prac-
(Duration] tical entigelien of Niagara
of Corp.) | _ River.
607 |Lake Kiskatom 99 Yrs. /|None.
(Duration
of Corp.)
1908 | 560 |Racquette sy oo
564 |Genesee Unlimited| ‘
1907 | 355 |St. Lawrence Perpetual |Not to impair or obstruct naviga-
(Duration| tion, which is to be preserved
of Corp.)| in as condition if mot
better at time of grant.
1911 | 514 |Susquehanna {50 Yrs. |None.
(Duration
of Corp.)
APPENDIX D.
By a general dam act passed in 1813 (Chapter 47) the leg-
islature made separate grants to a number of individuals to
erect dams in certain rivers declared by the act to be public
highways. These grants were for a limited period and were
made subject to certain restrictions designed to prevent any
obstruction to navigation, which was to be free from the pay-
ment of tolls. From 1813 to 1840 the legislature passed more
than 125 special acts granting to individuals the right to build
dams in certain streams which were navigable or capable of
being developed for navigation. Generally these grants were
made subject to one or more of the following conditions, viz. :
(a) That the Court could revoke the grant if the dam proved
to be an inconvenience to the public ; (5) that the grant could
be repealed without liability for damage or compensation to
the grantee whenever the public interest might require ; and
(c) that the act should become void if passage upon the stream
was obstructed by the dam.
243
In over forty years, between 1840 and 1882, there were but
few special acts granting the right to build dams. Since 1882,
however, the legislature has passed about twenty special acts
granting the right to certain water-power companies (and in a
few cases to individuals) to erect dams across some of the
larger streams of the State, such as the Hudson and Mohawk
Rivers.
The provisions of these acts were different from those of
the acts passed prior to 1840 in the following particulars, viz. :
no right of repeal was reserved ; there was no express condi-
tion that navigation was to be improved, in some cases it being
provided that navigation should not be injured, in others the
subject not being mentioned at all; generally there was no
condition for the resumption by the State of control of naviga-
tion ; in some cases the use of the Jand under the water cov-
ered by the dam and flooded by its erection was given to the
grantee and in some cases the legal title was conveyed to it;
and there was no limitation as to the time of enjoyment and
in five cases the right was granted to maintain the dam “ for-
ever.”
The dams constructed before 1840 were probably not of ex-
pensive or eluborate construction but were built and used to
create water-power for the operation of saw mills and grist
mills belonging to grantees owning the lands and riparian
rights in the immediate vicinity. At that time the needs of
navigation were not rapidly developing and the grantees were,
therefore, not deterred by the limitations imposed by the leg-
islature from making the expenditures necessarily involved.
The companies receiving grants made since 1882, however,
have been organized for the purpose of developing water-power
to be converted into electrical energy for the operation of ex-
tensive modern manufacturing plants. Such enterprises in-
volve the building at large expense of masonry or concrete
dams and they would not be undertaken if the right to main-
tain the dams were to be made subject, at the will of the legis-
lature, to termination without compensation. These circum-
stances perhaps explain the change of legislative policy since
1882.
By Chapter 234 of the Laws of 1898, certain individuals
were constituted a corporation under the name of the Electric
Water-power Company of Oneonta, Otsego County, for the
244
purpose of erecting and operating a “ dam or series of dams”
on the Susquehanna River, to be used for the development of
“hydraulic and electrical power for manufacturing, heating,
lighting and other purposes.” The dams were authorized for
the use of the “ water of such river” and the Company was
empowered to sell or lease the power developed. The Com-
pany was also authorized to acquire property by condemna-
tion. No provision for the preservation or improvement of
the Susquehanna River was contained in the Act.
By Chapter 683 of the Laws of 1900 the Hudson River
Water Power Company, which had acquired the riparian rights
along both banks of the Hudson River, was given the right to
erect and forever maintain a dam “ to such height as will fully
utilize the fall of the saidriver, * * * and to forever flow
back up said river from said dam when erected, to form and
maintain the pond necessary to utilize said dam.” It was
further provided that “ any interest of the State in the lands
under the waters of said river that shall be covered by the said
dam and works, or that shall be flooded bv the erection of such
dam, is hereby granted to said Company.” The reservation
was made that the Company should only have the right to use
such water as it was entitled to divert as a riparian owner.
The navigable character of the river was preserved by the pro-
vision that spillways should be provided for the floating of
logs down the river “ as the custom has heretofore existed
among lumbermen on said Hudson River.”
By Chapter 154 of the Laws of 1900, certain individuals
were constituted a corporation under the name of the Lock-
port and Newfane Power and Water Supply Company for the
purpose of generating and selling power, and supplying water
to municipalities within the County of Niagara. By Section 4
of the Act, the Company was authorized to construct and
maintain a dam across Eighteen Mile Creek “for the proper
use of the water of such creek” in the development of power.
By Chapter 175 of the Laws of 1900, a dam constructed by
the Hudson River Power Transmission Company across the
Hudson River between Saratoga County and Rensselaer
County was legalized and the Company was authorized “ to
flood back up said river so far as it owns the adjacent uplands
or may have right to flowage thereon, for the purpose of main-
taining the ponds formed by such dam; and any interest of
245
the State in the lands under the waters of such river covered
by said dam and the works connected therewith is hereby
granted to said Company.”
By Chapter 564 of the Laws of 1903, the Mt. Morris
Waterpower Company was authorized to construct and main-
tain a dam across the Genesee River, not to exceed in height
85 feet above the present ordinary water surface of the river.
This power was conferred “for the purpose of supplying
water for sanitary and other uses and of developing power.”
By Chapter 486 of the Laws of 1896, the St. Lawrence
Power Company of Massena was authorized to develop power
and construct a canal from the St. Lawrence, St. Lawrence
County, into the Grass River and to construct the necessary
dams, sluices, etc., in the St. Lawrence or Grass Rivers, for
the purpose of said canal. It was provided that navigation
was not to be obstructed. The right of condemnation was also
. given. It is to be noted in connection with this grant that
it tended to affect the navigation in the St. Lawrence River at
or about the Long Sault Rapids, and while provision was
made in general terms that navigation was not to be obstructed,
the power project was obviously the main purpose of the act.
APPENDIX E.
Convention Concerning the Boundary Waters
between the United States and Canada, pro-
mulgated May 13th, 1910.
The Convention of 1909 recites that the High Contracting
parties are “ equally desirous to prevent disputes regarding
the use of boundary waters.” By the Preliminary Article it is
provided as follows :
“ For the purposes of this treaty boundary waters
are defined as the waters from main shore to main shore
of the lakes and rivers connecting waterways, or the
portions thereof, along which the international boundary
between the United States and the Dominion of Canada
ae Fe
246
Article I. provides as follows :
“ The High Contracting Parties agree that the navi-
gation of all navigable boundary waters shall forever
continue free and open for the purposes of commerce
to the inhabitants and to the ships, vessels, and boats
of both countries equally, subject, however, to any laws
and regulations of either country, within its own terri-
tory, not inconsistent with such privilege of free naviga-
tion and applying equally and without discrimination
to the inhabitants, ships, vessels, and boats of both
countries.”
Article ITI. provides as follows :
“ It is agreed that, in addition to the uses, obstruc-
tions, and diversions heretofore permitted or hereafter
provided for by special agreement between the Parties
hereto, no further or otber uses or obstructions or diver-
sions, whether temporary or permanent, of boundary
waters on either side of the line, affecting the natural
level or flow of boundary waters on the other side of
the line, shall be made except by authority of the United
States or the Dominion of Canada within their respect-
ive jurisdictions and with the approval, as hereinafter
provided, of a joint commission, to be known as the
International Joint Commission.
“ The foregoing provisions are not intended to limit
or interfere with the existing rights of the Government
of the United States on the one side and the Govern-
ment of the Dominion of Canada on the other, to under-
take and carry on governmental works in boundary
waters for the deepening of channels, the construction
of breakwaters, the improvement of harbors, and other
governmental works for the benefit of commerce and
navigation, provided that such works are wholly on its
own side of the line and do not materially affect the
level or flow of the boundary waters on the other, nor
are such provisions intended to interfere with the ordi-
nary use of such waters for domestic and sanitary
purposes.”
247
By Article VIII. a Joint Commission provided for in Arti-
cle VII. is given jurisdiction in respect of cases involving the
use or obstruction or diversion of waters. Provision is made
for the order of precedence which is to be observed in respect
of the uses to which the waters are to be put, preference being
given first to domestic and sanitary purposes, second, to “ nav-
igation, including the service of canals for the purposes of nav-
igation,” and, third, to the “ uses for power and for irrigation
purposes.”
Finally it is provided as follows:
“In cases involving the elevation of the natural
level of waters on either side of the line as a result of
the construction or maintenance on the other side of
remedial or protective works or dams or other obstruc-
tions in boundary waters or in waters flowing therefrom
or in waters below the boundary in rivers flowing across
the boundary, the Commission shall require, as a con-
dition of its approval thereof, that suitable and ade-
quate provision, approved by it, be made for the pro-
tection and indemnity of all interests on the other side
of the line which may be injured thereby.”
APPENDIX F.
Following is a copy of the letter of President Roosevelt re-
ferred to on page 81 of the Brief :
Tue Waite Hovssg,
Wasuineron, March 18, 1908.
Sir: Numerous bills granting water rights in conformity
with the general act of June 21, 1906, have been introduced
during the present session of Congress, and some of these have
already passed. While the general act authorizes the limita-
tion and restriction of water rights in the public interest, and
would seem to warrant making a reasonable charge for the
248
benefits conferred, those bills which have come to my attention
do not seem to guard the public interests adéquately in these
respects. The effect of granting privileges such as are con-
ferred by these bills, as I said in a recent message, “ taken
together with rights already acquired under State laws, would
be to give away properties of enormous value. Through lack
of foresight we have formed the habit of granting without
‘compensation extremely valuable rights, amounting to monop-
olies, on navigable streams and on the public domain. The
repurchase at great expense of water rights thus carelessly
given away without return has already begun in the East, and
before long it will be necessary in the West also. No rights
involving water power should be granted to any corporation in
perpetuity, but only for a length of time sufficient to allow
them to conduct their business profitably. A reasonable
‘charge should, of course, be made for valuable rights and
‘privileges which they obtain from the National Government.
The values for which this charge is made will ultimately,
through the natural growth and orderly development of our
popalation and industries, reach enormous amounts. A fair
‘share of the increase should be safe-guarded for the benefit of
the people, from whose labor it springs. The proceeds thus
secured, after the cost of administration and improvement has
been met, should naturally be devoted to the development of
our inland waterways.” Accordingly, I have decided to sign
no bills hereafter which do not provide specifically for the
right to fix and make a charge and for a definite limitation in
time of the rights conferred.
Sincerely, yours,
THEODORE ROosEVELT.
Hon. Wiiu1am P. Frye,
Chairman Committee on Commerce, United States Senate.
The following is Senator Nelson’s statement referred to at
, page §1 of the Brief :
“Mr. President, since 1908 there has practically
been an embargo upon the constrnction of dams over
navigable waters in this country. Improvements have
gone on where the right to build the dam had been ac-
249
quired before that time, but President Roosevelt on the
18th of March, 1908, sent a letter to the chairman of
the Committee on Commerce, Senator Frye, stating that
he would veto any water-power bill unless first it con-
tained a limitation as to time ; that is, that some defi-
nite time should be fixed, and in the next place unless
it provided for the payment of a royalty or toll to the
Government of the United States.
“The Committee on Commerce of the Senate at
that time had before it what was known as the James
River Dam bill, providing for building a dam across the
James River, in Stone County, Mo. After the com-
mittee received that letter from President Roosevelt it
proceeded to consider the entire question, and the com-
mittee came to the unanimous conclusion that the
assumption of President Roosevelt that the public
should pay a royalty for the use of the water was
unfounded and contrary to law. The Committee on
Commerce reported the James River Dam bill unani-
mously without injecting into it the amendment that
President Roosevelt insisted upon in his letter.
“ The bill went to the House and there it was hung
up, and from that day to this, with the exception of the
Rainy River bill, which was referred to the other day,
no bill authorizing the construction of a dam over
navigable waters has been passed. If my recollection
serves me correctly, we have passed several bills here
in the Senate ; but those bills have been held up in the
other House on the theory and contention that no
right should be granted under special laws, that what
we needed was a general law.
“There has been such an embargo, Mr. President,
that it has operated as an actual stay on water-power
construction.”
250
APPENDIX G.
STATE OF NEW YORK,
OFFICE OF THE
CLERK OF THE SENATE,
Albany.
Strate or New York, ‘
County of New York,$~"’
I, Parrick E. McCasg, Clerk of the Senate of the State of
New York, do hereby certify, that I have carefully compared
the annexed copy of an extract from the Senate Journal for
the year 1913, with reference to the bill No. 110, Print No.,
entitled “ An Act Repealing chapter 355, Laws of 1907, by
which the Long Sault Development Company was incorpor-
ated, and providing for the repayment of certain moneys paid
by the company and appropriating $36,320 therefor,” with the
original thereof on file in my office, and that the same is a
true and correct copy thereof, and of the whole thereof rela-
tive to said bill.
In Witness Whereof, I have hereunto set my hand,
{Szav] and affixed the official seal of the Senate,
this 16th day December, 1913.
Patrick E. MoCabz.
The Senate Bill, No. 110, Int. No. 108, entitled “‘ An Act
to repeal chapter Three hundred fifty-five of the laws of nine-
teen hundred and seven, entitled ‘ An Act to incorporate the
Long Sault Development Company, and to authorize said
company to construct and maintain dams, canals, power-
houses and locks at or near Long Sault Island, for the pur-
pose of improving the navigation of the Saint Lawrence
river and developing power from the waters thereof, and to
construct and maintain a bridge, and carry on the manu-
facture of commodities,’ providing for the repayment to
such company of certain moneys paid by it under such act
and making an appropriation therefor,” was read the third
time.
251
The President put the question whether the Senate would
agree to the final passage of said bill, the same having been
printed and upon the desks of the members in its final form
for three calendar legislative days, and it was decided in the
affirmative, a majority of all the Senators elected voting in
favor thereof, and three-fifths being present, as follows :
Aye: District 23, Mr. Blauvelt ; 15, Mr. Boylan; 7, Mr.
Carroll ; 6, Mr. Carswell ; 3, Mr. Cullen ; 8, Mr. Duhamel ; 33, Mr.
Emerson ; 12, Mr. Fitzgerald; 14, Mr. Foley ; 22, Mr. Griffin ;
$2, Mr. Heacock ; 24, Mr. Healy; 5, Mr. Heffernan ; 17, Mr.
Herrick ; 18, Mr. McClelland; 29, Mr. McKnight; 48, Mr.
Malone ; 41, Mr. Murtaugh; 1, Mr. O’Keefe; 2, Mr. Patten ;
86, Mr. Peckham; 18, Mr. Pollock; 49, Mr. Ramsperger ; 19,
Mr. Salant; 9, Mr. Sanner; 43, Mr. Seeley; 21, Mr. Stilwell ;
10, Mr. Torborg; 4, Mr. Velte; 16, Mr. Wagner; 39, Mr.
Wheeler ; 31, Mr. White.
Nay: District 45, Mr. Argetsinger; 35, Mr. Brown; 44,
Mr. Bussey; 34, Mr. Coats; 51, Mr. Godfiey ; 46, Mr. Orm-
rod; 27, Mr. Palmer ; 28, Mr. Sage; 25, Mr. Stivers ; 47, Mr.
Thompson ; 30, Mr. Whitney ; 42, Mr. Wilson.
Ayes, 32; Noes, 12.
ORDERED, that the Clerk deliver said bill to the Assembly
and request their concurrence therein.
IN ASSEMBLY, MAY 2, 1913.
Mr. Speaker announced the special order being the senate
bill (No. 110, Rec. No. 169) entitled “ An act to repeal charter
three hundred and fifty-five of the laws of nineteen hundred
and seven, entitled ‘An act to incorporate the Long Sault
Development Company, and to authorize said company to
construct and maintain dams, canals, powerhouses and locks
at or near Long Sault island, for the purpose of improving
navigation of the Saint Lawrence river and developing power
from the waters thereof, and to construct and maintain a
bridge, and carry on the manufacture of commodities,’ pro-
viding for the repayment to such company of certain moneys
252
paid by it under such act and making an appropriation there-
for.”
Debate was had thereon.
On motion of Mr. Levy said bill was read the second time
and ordered to a third reading.
Said bill was then read the third time, having been printed
and upon the desks of the members in its final form at least
three calendar legislative days prior to its final passage.
Mr. Speaker put the question whether the House would
agree to the final passage of said bill, and it was determined
in the affirmative, a majority of allthe members elected to the
Assembly voting in favor thereof, and three-fifths being
present.
Those who voted in the affirmative were.
Messrs. Benninger, Bovie, Brewster, Burden, Burr, Bush,
Carroll, Carver, Cole, Cotillo, Cronin, Daley, Dennen, Donohue,
Dorst, Doty, Dox, Eisner, Evans, Fitzgerald, Gallup, Gathright,
Geoghan, Geyer, Gillen, Goldberg, Gurnett, Hammer, Hearn,
Heyman, Hover, Hughes, Jackson, Jude, Kane, Kelly, J. A.,
Kelly, J. J., Kelly. 7. D., Kenney, Kennedy, Kerrigan, Kiernan,
Kornobis, Larrimer, Levy, Lewis, Madden, Maloney, McCullom,
McDaniels, McElligott, McKee, McKeon, Monahan, O’Brien,
Oxford, Patrie, Pullman, Robinson, Rozan, Schaap, Schiffer-
decker, Schwarz, Seely, J. L., Silverstein, Small, Squire, Sufrin,
Sutphin, Telford, Taylor, F. J., Taylor, T. D., Tudor, Ulrich,
Van Woert, Volk, Walker, Ward, Weil, Willard, Willmott,
Yard.
Those who voted in the negative were :
Messrs. Adler, Baumes, Bradley, Edwards, Fuller, Grace,
Hinman, Hopkins, Malone, Norton, Pappert, Phillips, Richard-
son, Schnirel, Seaker, Seelye, G. T.; Smith, J. A.; Smith,
Myron ; Sweet, Vert, Webb, Wood, Yale.
Ayes, 82.
Noes, 23.
ORDERED, That the Clerk return said bill to the senate
with a message that the assembly have concurred in the
passage of the same.
253
SraTe or New York, }
County of Albany, (...
OFFICE OF THE CLERK or | =
THE ASSEMBLY,
I, Wirtt1am K. MansFIELp, Journal Clerk of the Assembly,
do hereby certify that I have compared the foregoing record
of Proceedings of the Assembly of May second, 1913, relative
to the bill therein set forth, with the original thereof as con-
tained in the original official copy of the Journal of proceed-
ings of the Assembly of said date and that the same is a true
and correct transcript of said Journal of proceedings in so far
as the same relates to said bill and of the whole thereof.
In WITNESS WHEREOF I have hereunto set my hand this 16th
day of December, 1913.
W. K. MansrIeE.p,
Journal Clerk.
APPENDIX H.
GREENE COUNTY.
Liber 49, of Patents, page 295, executed February 27, 1897,
granting the title to land under water to Charles Gorman for
dock purposes.
Liber 49, page 297, executed October 11, 1897, Alonzo I.
Powell and another, for dock purposes.
Liber 50, page 215, executed March 1, 1899, James E.
Bronk, no purpose specified.
Liber 51, page 36, executed October 25,1901, Peter A.
Somers and another, for dock purposes.
Liber 51, page 49, executed April 16, 1902, Arthur C.
Babson, for dock purposes.
Liber 51, page 75, executed September 29, 1902, Alsen’s
American Portland Cement Co., for dock purposes.
Liber 51, page 293, executed September 28, 1898, P. H.
Doherty, no purpose specified.
Liber 54, page 60, executed May 15, 1905, Clifford Bonne-
ville, for dock and canal purposes.
254
Liber 54, page 73, executed October 12, 1905, Whitehead
Bros., for dock purposes.
Liber 54, page 78, executed November 21, 1905, Catskill
Cement Co., for building purposes.
Liber 54, page 216, executed June 11, 1909, Seaboard Port-
land Cement Co., for dock and tramway purposes.
ULSTER COUNTY.
Liber 49 of Patents, page 7, executed September 4, 1895,
to John J. Cooney and Patrick Farrell, for purposes of erecting
a public dock or docks.
Liber 49, page 24, executed December 2, 1898, to J. Peter
Leuffgen, for purposes of erecting a public dock or docks.
Liber 50, page 139, executed Dec. 7, 1897, to Frank M.
Van Deusen and Harriet J. Van Deusen, for purposes of build-
ing a public dock or docks.
Liber 50, page 204, executed November 30, 1898, to James
H. Duffie and Milo M. Wells, for purposes of building a public
dock or docks.
Liber 50, page 224, executed June 8, 1899, to Mary E.
Pulver, for purposes of building a public dock or docks.
Liber 51, page 3, executed April 15, 1900, to Charles N.
Baker, for purposes of filling in land so conveyed and erecting
thereon an ice-house and buildings and piers and docks and
other structures of like nature.
Liber 51, page 13, executed March 23, 1901, to Martin E.
Hendricks, for the purpose of erecting thereon a dock or
buildings of a substantial character.
Liber 51, page 35, executed October 8, 1901, to The Order
of the Holy Cross, for the purpose of erecting and maintaining
a dock or buildings.
Liber 51, page 38, executed November 9, 1901, to John E.
Lynch and Thomas Lynch, for the purpose of erecting and
constructing bulkheads, docks and brickyards for the man-
ufacture of brick.
Liber 54, page 29, executed June 16, 1904, to Thomas
Dinan, for the purpose of filling in and erecting docks and
other structures.
Liber 54, page 94, executed May 2, 1906, to the Ulster
255
Brick Company for the purpose of filling in and erecting docks
and other structures.
Liber 54, page 135, executed March 18, 1907, to Marian
Cormack, for the purpose of filling in and erecting docks.
Liber 54, page 200, executed December 21, 1908, to Archi-
bald H. Smith and Julia M. Smith for the purpose of filling
in and erecting bulkheads, brick-sheds, docks and other
structures,
Liber 56, page 42, executed January 27, 1913, to Oliver H.
Payne, for the purpose of filling in and erecting dock, boat-
house and breakwater.
Liber 56, page 53, executed April 11, 1913, to Alvah 8.
Staples, for the purpose of filling in and erecting docks, brick-
yards and sheds.
SARATOGA COUNTY.
Liber 50 of Patents, page 195, executed August 20, 1898,
granting title to land under water to Stillwater and Mechanics-
ville Railroad Company for bridge purposes.
WASHINGTON COUNTY.
Liber 49 of Patents, page 377, executed December 16, 1901,
title to land under water to Greenwich and Johnsonville Rail-
way Company for bridge purposes.
[14329]
APR 12 }018
JAWS + Pei et
Supreme Court of the United States
OCTOBER TERM, 1915.
LONG SAULT DEVELOPMENT COMPANY, Plaintiff in error,
vs.
HOMER D. CALL (as Successor of John J. Kennedy),
as Treasurer of the State of New York
IN ERROR TO THE SUPREME COURT OF THE
STATE OF NEW YORK
BRIEF FOR DEFENDANT IN ERROR
E. E. WOODBURY,
Attorney-General,
MERTON E. LEWIS,
C. T. DAWES,
Attorneys for Defendant in errer.
CERES SRR ee IS TR RARER IM ORES EN
|
SUBJECT INDEX.
—_—
Preliminary Diatomenl oo. ccc accccvedees
BP ee ere eT ee Teer ey
Point I.— There is no Federal question. The
Court of Appeals of the State of New York
simply construed the State Constitution
and gave no effect whatever to the repeal-
ing act claimed by the plaintiff in error to
have impaired its contract with the State.
The charter had been declared unconstitu-
tional by the Attorney-General, the Gov-
ernor and the Conservation Commission,
and this mandamus proceeding now before
this court had been instituted and the
charter declared unconstitutional by the
Supreme Court of the State of New York
long before the repealing act was passed. .
Point IIl.— The Legislature cannot alienate
its total sovereign control over navigation
upon publie waters to a private water
power corporation which under the terms of
the grant is not obliged to perform any pub-
lie service whatever. This principle has
been clearly pronounced by this court in
Illinois Central Railroad Co. vs. Illinois,
I ay eer mi err rere
Point III.— The Long Sault Act grants an
exclusive privilege or franchise, in viola-
tion of Article IIT, Section 18, of the Con-
stitution of the State of New York........
Point IV.— The Act of 1907, the Long Sault
Charter, is a private bill which embraces
more than one subject and is defective and
CURTIN TE TN Die vec sascccwsicenseacs
11
28
53
ii
PAGE
Point V.— The grant of lands under water
in the St. Lawrence river is in violation of
article VII, section 7, of the New York
State Constitution, forbidding the leasing
or alienation of lands in the forest preserve. 76
Point VI.— The Long Sault Act is invalid
and inoperative because it provides for the
alienation by the State of title to lands in
the bed of the St. Lawrence river. The title
of the State to lands under navigable wa-
ters is a sovereign ownership rather than
a proprietary title, and in so far as any
conveyance thereof will work a public in-
jury, the lands are deemed to be and are
inalienable. As the franchise to use the
waters was not intended to stand without
the land grant, the franchise to use the
NE oo acne 4a d:'g apcinh es 4:8 82
Point VII.— The provision in the Act of
1913, Chapter 452, for the repayment to the
Long Sault Company of sums paid into the
State treasury, does not constitute a gift of
the moneys of the State, nor an audit of a
private account by the Legislature, nor an
appropriation of publie moneys requiring a
two-thirds vote of the Legislature....... 91
Point VIII.— The repeal of the Long Sault
Charter leaves the courts without a statute
upon which to base a writ of mandamus.
There is no longer any duty to receive the
money imposed upon the State Treasurer. 93
LIST OF CASES
PAGE
Atchison, Topeka & Santa Fe Ry. v. Sowers,
Be Wes Wi Wh xp wonenn sores keneeabonnees
American Sugar Refining Co. v. Louisiana,
2 § Ser reo een ee
Appleby v. Buffalo, 221 U.S. 524, 529......
Application of Union Ferry Co., 98 N. Y. 139.
Atlantie Coast Line eae Co. v. City of
GING, Bor Bie. Th Bias cc csccusciacness
Bacon v. Texas, 163 U. errr err
Berrien Springs Water Power Co. v. Ber-
rien, 133 Mich. 48; 94 N. W. 379..........
Blair v. Chicago, 201 U.S. 400..............
Bridge Proprietors v. Hoboken Co., 1 Wall.
BO nanndic nes dc eruwecsaes $4 te ncidioetec
Butchers’ Union Co. v. Crescent City Co.,
£4 > & Serer ree
Cahill v. Hogan, 180 N. Y. 304, 309..........
California Reduction Co. v. Sanitary Reduc-
ee SR ee
Canal Appraisers v. People, 17 Wend. 571..
Carondelet Canal Co. v. Louisiana, 233 U. S.
DEAR AGdiaa ta hehe khaoh aeeedewaehabas
Cayuga Bridge Co. v. Magee, 2 Paige, 116..
Central Land Co. v. Haidley, 159 U. 8S. 103,
SE acca Rew Kak hae vedi RR ae
Charles River Bridge Co. v. Warren Bridge,
fk err Pee tT rere
Chieago, Burlington & Quiney Railroad Co. v.
ee es wads cao au aay is
Chieago, Burlington & Quiney Railroad Co. v.
Drainage Commissioners, 200 U. S. 561,
City of Buffalo v. D., L. & W. R. R. Co., 136
App. Div. 274; affd. 204 N. Y. 562........
iv
PAGE
City of Rochester v. Gutberlett, 211 N. Y. 309. 67
Clark v. Nash, 198 U. S. 361, 368, 369........
Connolly v. Union Sewer Pipe Co., 184 U.S
OU aickiae ce cab eescd ee ves ahs cen weee
Cox v. The State, 144 N. Y. 396... .12, 30, 71,
Cross Lake Country Club v. Louisiana, 224
A Wey ME OI Ain ge ak otk ee ace ion hw Oe Bae
Crowell v. Randell, 10 Peters, 368, 392... .23,
Cummings v. Chicago, 188 U.S. 410.........
Dartmouth College v. Woodward, + Wheaton,
EE Se aes an 6 aie UPL ee owas
Detroit Citizens Street Railway Co. v. Detroit
a eee rere
Economie Power and Construction Co. v. City
of Buffalo, 195 N. Y. 286, 295....... 48, 54,
Eldridge v. Trezerant, 160 U. S. 452, 466....
Ennis Waterworks Co. v. Ennis, 233 U. S. 652,
DEY acl shit aneaae wed ane cd nana oes
Escanaba Co. v. Chicago, 107 U. S. 678......
Fallsburg Power and Manufacturing Co. v.
ene; BOE VR. Gs esos hak ace sans rns
First National Bank v. Estherville, 215 U.S.
Me KS athe aahe scabs dh bad lak anne ass
Fisher v. New Orleans, 218 U. 8S. 438......
Fulton Light, Heat and Power Co. v. The
a OF a Oy reece
Gardner v. Michigan, 199 U.S. 325..........
Giles v. Teasley, 193 U.S. 146, 160..........
Greenlief Lumber Co. v. Garrison, 237 U. S
eee CoN ON eee Olay bes a
Gring ¥v. Ives; 222 U. GB. S60... ccc cc sv evies
Hadacheck v. Sebastian, 239 U. S. 394......
Hatch v. Reardon, 204 U. S. 152, 160........
Hay v. Cohoes Co., 3 Barb. 47............¢:
Illinois Central Railroad Co. v. Illinois, 146
iS Sear re 12, 28, 30, 37,
Jefferson Branch Bank v. Skelly, 1 Black, 436.
Kaukauna Water Power Company v. Green
Bay and Mississippi Canal Co., 142 U. S.
PE REA aa oe he Sede R RECs Oe eA FOr ee RE KAO Seo
PAGE
Lake Shore & Michigan Southern Railway Co.
©, Se, Se is i aches coscencenna ves
Langdon v. The Mayor, 93 N. Y. 129........ 34
Lehigh Valley Railroad v. Canal Board, 204
Ws BA ck uanbad ak th aenerekskeacene 92
Lehigh Valley R. R. Co. v. State, 146 App.
Div. 151, 159; approved 204 N. Y. 473, 474.. 33
Lehigh Water Company v. Easton, 121 U.S.
FRE 8 SN ee Peers Pee Peery 15
—" Blue Point Oyster Co. v. Briggs, 188
Lf * t- tik ¢ Seer 31, 32
ME Ry. & Navigation Co. v. New Or-
eS” SRR ease 14, 18
Louisville Gas Co. v. Citizens Gas Co., 115
UES RPE a area aia ee Ry Ret cage A 67
Louisville, ete., R. R. Co. v. Stock Yards Co.,
212 U. S. 132, | RE epee ora eer 48
McCullough v. Virigina, 172 U. S. 102, 111,
1): RA A Ry eer eae 15, 18
Manhattan Savings Institution v. Mayor, 90
ge Sara errata err 90
Matter of Appleation of Eureka Basin Ware-
_. _ house Company, 96 N. Y. 42........ 42,43, 44
a Matter of Application of Union Ferry Co.,
Pe ab asada ce baneheakeesowe 61
Matter of City of New York, 168 N. Y. 134,
| SO ne re er eee Tre ery 30
Matter of Commissioners of State Reserva-
oe gS RET err rere ee 33
Matter of Deansville Cemetery Association,
bf oe se OY. Rrra 47
Matter of Fishway, 131 App. Div. 403...... 33
Matter of Jacobs, 98 N. Y. 111.............. 42
Matter of Niagara Falls & Whirlpool R. R.
te OB ee Srey errr ee 42
Mayor v. Manhattan Ry. Co., 143 N. Y. 1,23. 72
Mayor v. 23rd St. Railway Co., 113 N. Y. 311,
tT Ee Per ery erm r rer ye ae 96
Meshmeier v. State, 11 Ind. 482............. 94
Minnesota Rate Cases, 230 U. S. 352, 404.... 50
Missouri v. Andriano, 138 U. S. 496, 500.... 25
vi
PAGP
Missouri & Kansas Interurban Ry. Co. vy
Cintiee, 227 U. &. 167, 190... 2. cee sccns
Missouri, Kansas & Texas R. R. v. Cade, 233
i as secs ikea ea Wes 46
Mohawk Bridge Co. v. U. & S. R. R. Co., 6
es ce LORS ua kiducokee bas < oun
Monongahela Navigation Co. v. U. S., 148
eect ak sige oiew Ok 4x gdb an X48
Montelair v. Ramsdell, 107 U. S. 147.......
Mt. Vernon (‘o. vy. Alabama Interstate Power
NT eg eg
Montgomery vy. Portland, 190 U. S. 89......
New Orleans Gas Co. v. Louisiana Light Co.,
115 U.S. 650, ae
New Orleans Waterw orks v. Louisiana Sugar
Se i wake bce meeaswe
New Orleans Waterworks Co. v. Rivers, 115
gs aa mawinks ad see ano
Palmer v. Hickory Grove Cemetery, 84 App.
a SEE rere
People v. Canal Appraisers, 33 N. Y. 461.
People ex rel, Cayuga Nation v. Land Com-
a a 2
People ex rel. Collins v. Spicer, 99 N. Y. 2
REE Eg ee ceed oe eer ane
People v. Fisher, 190 N. Y. 480.............
People v. oe ‘ Fe: ‘*k & Staten Island Ferry
EN aaa bees is 33,
People v. O’E ol Wa eR ee aia inn acne te
People ex Me Purdy v. Commissioners of
a Se Oe Ser ee
i»
People ex rei. es polds v. Common Council of
8 eS. eer rer
People v. Woodbury Dermatological Inst.,
I so vcs do acdosuccnube rs caw 98 ‘
Philadelphia Co. v. Stimson, 223 U.S. 605...03
Pollock v. Farmers Loan and Trust Co., 158
ERR en gee a 90
vii
Queens Terminal Co. v. Schmuck, 147 App.
oe a eee re Serer 47, 72,
Railroad Co. v. McClure, 10 Wallace, 511, 515.
Red River Valley Bank v. Craig, 181 U.S. 548,
BE bv vdvaws cbt dansedbewed tikaweteoues
Rosenthal v. New York, 226 U.S. 260, 271...
Russell v. Sebastian, 233 U. S. 195........
St. Anthony Falls Water Power Co. v. Com-
missioners, 168 U. &. 340... ccc rc cnces
St. Louis & Lron Mountain Railway v. Taylor,
AS Serer err ery
St. Paul Gas Light Co. v. St. Paul, 181 U.S.
DE cea rch Vin Gne anne ipa ceree be ekasnens
Sage v. The Mayor, 154 N. Y. 61, 79........
Sands v. Manistee River Improvement Co.,
Ee 0 A EL aca canoe ehdok hb en 5x4 oe
Sauer v. New York, 206 U.S. 536..........
Sayward v. Denny, 158 U. S. 180, 184..... 23,
Schnaier v. Grigsby, 132 App. Div. 854......
Scott v. McNeil, 154 U.S. 34...............
Slaughterhouse Cases, 16 Wallace, 36......
Slawson v. The City of Racine, 13 Wis. 398. .
Slingerland v. International Contract Co., 43
App. Div. 215; affd. 169 N. Y. 60, 70......
Smith v. Rochester, 92 N. Y. 463, 477........
tate wv. Tae, SBN, Te. Bike ans ccc vc seweses
State v. Commissioners of Perry County, 5
Oo Og Ne ae Pe ere reer
State v. Sanford, 19 How. 393..............
State ex rel. Cornell v. Poynter, 59 Neb. 417,
ok ey Peers
Stone v. Mississippi, 101 U.S. 814..........
Strickley v. Highland Boy Mining Co., 200
EM gc os 4h keno ke ce ae ee adaeee
Turner v. Wilkes County Commissioners, 173
ee Peer eee
Union Bridge Co. v. United States, 204 U.S.
rE Reds bas ed hurde 6he dda may
Union Lime Co. v. Chicago & N. W. Ry., 233
ye I es cucas cick caeawaseuewee
PAGE
87
14
29
25
67
23
22
vili
PAGE
United States v. The Chandler-Dunbar Water
Power Co., 229 U. 8. 53............31, 32, 39
University v. People, 99 U.S. 309.......... 17
Vance v. Rankin, 192 Ill. 625.............. 101
Vanderbilt v. Adams, 7 Cow. 349, 350........ 3
Warren v. Mayor, 2 Gray, 84.............. 86
Waterloo Woolen Mfg. Co. v. Shanahan, 128
ie IE oa 40 «Sais aba baw ek aw 42, 92
Western Union Telegraph Co. v. Wilson, 213
Wie hao bah AoN scp Sas Vika ok Gade 23
West Virginia Pulp & Paper Co. v. Peck, 82
i a eee ae
Williams v. Bruffy, 96 U.S. 176............. 22
Wright v. Nagle, 101 U.S. 791.............. 18
Yick Wo v. Hopkins, 118 U.S. 356. ........ 23
Supreme Court of the United States
OCTOBER TERM, 1915
No. 271
LONG SAULT DEVELOPMENT COMPANY,
PLAINTIFF IN ERROR.
VS.
HOMER D. CALL (AS SUCCESSOR OF JOHN
J. KENNEDY) AS TREASURER OF THE
STATE OF NEW YORK.
IN ERROR TO THE SUPREME COURT OF
THE STATE OF NEW YORK
BRIEF FOR DEFENDANT IN ERROR.
Preliminary Statement.
This action was brought here on a writ of
error granted by Mr. Justice Pitney after judg-
ment had been rendered in the Supreme Court
NE NRA Bt A ada BA 2 HS era IG GPa ln ink Re athe aN +e Ej ans “
of the State of New York against the plaintiff
in error upon a remittitur from the Court of
Appeals of the State of New York, that being
the highest court of law in said State. (Record,
p. 62.)
The Court of Appeals of the State of New
York (212 N. Y. 1) affirmed the order of the
lower State courts which denied a writ of man-
damus sought by the plaintiff in error to compel
the State Treasurer to accept the payment of
$25,000 due the State for the year 1912, from the
Long Sault Development Company, plaintiff in
error, as consideration for a franchise to use the
waters of the St. Lawrence river at the Long
Sault Rapids for power purposes, conferred by
chapter 355 of the Laws of 1907. (Record, p. 22.)
Refusal by the State Treasurer to accept the
payment was based on the ground that the above
statute, which was the company’s charter, was
unconstitutional, he having been so advised by
the Attorney-General of the State.
Chapter 355 of the Laws of 1907 is entitled
“AN ACT TO INCORPORATE THE LONG
SAULT DEVELOPMENT COMPANY, AND
TO AUTHORIZE SAID COMPANY TO CON-
STRUCT AND MAINTAIN DAMS, CANALS,
POWER-HOUSES AND LOCKS AT OR NEAR
LONG SAULT ISLAND, FOR THE PUR-
POSE OF IMPROVING THE NAVIGATION
OF THE ST. LAWRENCE RIVER AND DE-
VELOPING POWER FROM THE WATERS
THEREOF, AND TO CONSTRUCT AND
MAINTAIN A BRIDGE, AND CARRY ON
THE MANUFACTURE OF COMMODITIES.”’
ie iO yore Pm, SNR Oe UR atl Stel RE OR An rg Se —
3
After conferring corporate life and the usual
powers of internal corporate management, the
act grants to the company in section 3, the right
Reservoirs and Dams.
‘*to erect, construct, maintain, operate and
use all such dam or dams, canal or canals,
reservoir or reservoirs, gates, sluices, trunks,
pipes, bulkheads, piers, flumes, abutments,
and other works appurtenant thereto, as may
be proper or useful for the purpose of the de-
velopment of water power, and of electrical
power and energy therefrom, at such point or
points upon or adjacent to the south shore of
the St. Lawrence river, near Long Sault
island or Barnhart’s island, and upon the
said islands, or either of them, and between
said islands or either of them and the shores
of the said river and Sheik’s island (but not
across the international boundarv line unless
consented to by the Dominion of Canada), as
may be selected by said corporation, and also
in and upon so much of the said river and the
bed thereof as lies to the south of the inter-
national boundary line, at or near Long
Sault island or Barnhart’s island, either in-
dependently or in connection with like works
now erected, or to be erected, in so much of
said river and the bed thereof as lies to the
north or Canadian side of said international
boundary line, and upon and adjacent to the
northerly shore of said river; ”’
Power-Houses and Electrical Conductors.
‘*and to erect, construct, maintain, operate
and use a power-house or power-honses, and
conductors, cables, wires, insulators and other
appliances in connection with the said works
for the development of electrical power and
energy; ’”’
Abe ee Nh Dae Tne hPa, a
{
4
Use of Waters.
‘* and also to take and use the waters of said
river at and above the points of location of
said works heretofore authorized,”’
Construction of Bridge.
‘‘and to construct and maintain upon, over
and in connection with said dam or dams and
other works, a bridge or bridges across or
partly across the St. Lawrence river, with the
approaches thereto, for the use of foot
passengers, animals and vehicles, and to
charge reasonable rates of toll for passage
thereon; ’’
sr Se
Navigation.
‘“ said corporation shall also erect and con-
struct a lock or locks as may be required by
the United States of America, and shall pro-
vide electrical power or energy for the main-
tenance, operation and use of said lock or
locks, free of charge, and shall in all other re-
spects perform, fulfill and abide by all and
singular the conditions and provisions of this
act, and also of any act of the congress of the
United States relating thereto, and also upon
condition that the rights hereby granted shall
never be so used as to impair or obstruct the
navigation of the Saint Lawrence river, but,
on the contrary, that such navigation shall be
preserved in as good condition as, uf not
better than, the same is at present, regard be-
ing always had to the amount of the natural
flow of water in said river, as affecting its
navigability from time to time.’’ (Italies
are our own emphasis.)
Section 4 of the act provides that after the
United States government shall have sanctioned
the construction of the dams, locks and canals
_ — Pia Sitio Se Bn Fd te mw a PURE AROS Dia tbe IR Po
| authorized by section 3, and after payment by
said corporation into the treasury of the State
of the fixed sum of $10,000,
Conveyance of Lands Under Water.
, ‘*the Commissioners of the Land Office shall
upon application of said corporation grant
unto it the title and interest of the people of
the State in and to lands under the waters of
the Saint Lawrence river, to be covered or
| occupied by said works and locks and power-
houses, provided, however, that any of the
lands of the state which may be so conveyed
to said corporation shall be forfeited and
title thereto shall revert to the state unless
the same are actually used by said corpora-
tion and covered by its dams, canals, reser-
voirs, gates, sluices, trunks, pipes, bulkheads,
piers, flumes, abutments or other works ap-
pertaining thereto, or are necessary to the en-
joyment for said purposes of any lands so
used or covered, within fifteen years from the
conveyance thereof by the commissioners of
| the land office to said corporation under au-
thority of this act.’’
Consideration to the State.
‘And in consideration of the conveyance
| so made under the authority of this act, as
well as for the rights and privileges hereby
granted the said corporation in addition to
the payment aforesaid shall pay into the
treasury of the state for the year nineteen
hundred and ten the fixed sum of fifteen thou-
sand dollars, and for the year nineteen hun-
dred and eleven the fixed sum of twenty thou-
sand dollars. For each year after nineteen
hundred and eleven the said corporation shall
pay at the following rates upon the average
2
de dn Wie NGAI cain, ag eaten nate nant Satie RISA RUB eM AT RIES POURS EP TN) Oo CLR RS CRO tS
Oe Shree y : i . i
amount of electrical horse power generated
during such year under the authority of this
act, that is to say: Upon all amounts up to
twenty-five thousand electrical horse power,
at the rate of seventy-five cents per horse
power; upon all amounts in excess of twenty-
tive thousand electrical horse power and up to
one hundred thousand electrical horse power
at the rate of fifty cents per horse power;
upon all amounts in excess of one hundred
thousand electrical horse power, at the rate
of twenty-fiv. sents per horse power. In case
said corporation shall generate or develop
water power as mechanical power without
transmuting the same into electrical power,
then for so much of said water power as shall
be so generated or developed, payment shall
be made at the above mentioned rates per
mechanical horse power.’’
Payment of the annual sums due the State
were to be made on or before February 1st of
the following year. Should the company not gen-
erate power in any year after 1911 sufficient to
return to the State $25,000,
‘*then said corporation shall pay for such
year the sum of twenty-five thousand dollars
instead of the amount that would be payable
at the rates aforesaid.’’
The Long Sault Development Company is a
subsidiary company of the Aluminum Company
of America, sometimes referred to as the Alumi-
num Trust, and owing to the opposition before
Congress of the advocates of water power con-
servation for the benefit of the people, and to the
protests of Canadian municipalities and public
associations, the Long Sault company has not
;
hbo,
7" ee "
7
been able to secure the passage of any of its
bills (first introduced in 1907) containing the
consent of the Federal government to the con-
struction of the dams. [Reports of the Interna-
tional Waterways Commission, 3d, 4th, 5th and
Gth Progress Reports of the United States Sec-
tion; H. R. 25707, 59th Congress, 2d Session;
Hearings on Malby bill, H. R. 14531, 61st Con-
gress, 2d Session; Hearings on Young bill, H. R.
32219, 61st Congress, 3d Session; Report on same
bill by River and Harbors Committee; Hearings
on S. 10558, 61st Congress, 3d Session; H. R.
22950, 62d Congress, 2d Session. ]
No power having yet been developed, there
beeame due to the State on February 1, 1913, the
sum of $25,000 for the year 1912, according to
the last above-quoted provision of the act.
Immediately prior to February 1, 1913, or to
be precise, on January 1, 1913, the Attorney-
General, pursuant to a resolution of the State
Senate (Record, p. 19), had rendered an opinion
to that body holding the Long Sault Act uncon-
stitutional. Acting under authority of that opin-
ion and upon specifie written advice to the same
effect from the Attorney-General, the State
Treasurer returned the company’s check for
$25,000, sent January 22, 1913, and refused also
a personal tender of the money on January 27,
1913. (Reeord, pp. 29, 33.) Thereupon the
Long Sault company applied to the court for a
writ of mandamus to compel the State Treas-
urer to perform his statutory duty of receiving
the $25,000 due under the provisions of the act.
The grounds of unconstitutionality of the Long
Sault company’s charter urged before the court
by the Attorney-General in opposition to the
granting of the writ were briefly these:
(1) The Legislature cannot abdicate, as it has
attempted to by this Act, its sovereign control
over navigation and entrust the same to a private
corporation.
(2) The Act grants an exclusive privilege to a
private corporation in contravention of article
III, section 18, of the State Constitution.
(3) The Act contravenes the prohibition
against the alienation of State lands in the forest
preserve. (Constitution, art. VII, § 7.)
(4) Its title is erroneous and _ deceptive.
(Constitution, art. IIT, § 16.)
(5) The graut of lands under the waters of
the St. Lawrence river to a private corporation
is in excess of the powers of the Legislature, be-
cause the State holds the lands not by proprietary
title but as sovereign in trust for the people.
The Special Term of the Supreme Court, with-
out an opinion, denied the writ as a matter of law,
pro forma, so as to expedite a hearing in the ap-
pellate courts. An appeal was immediately taken
by the Long Sault company to the Appellate Di-
vision.
Before the Appellate Division had handed
down its decision, the Legislature expressly re
pealed by chapter 452 of the Laws of 1913 (Ree-
ord, p. 32), the Long Sault Act on the ground
that it was unconstitutional, and conferred juris-
diction (chap. 453, Laws of 1913) upon the Board
of Claims to hear any alleged claims of the Long
Sault Development Company. Counsel again
appeared, at the request of the Appellate Di-
vision, and made argument upon the effect of the
ee RY ERNIE | HPS ECG: rapa aie rr 5 oS np S50 EN ete me pa ae |
. ; ' cciatateiees
repealing act. The order of the Special Term,
denying the writ, was thereafter affirmed. (Ree-
ord, p. 38.)
The opinion of the Appellate Division, ‘two of
the five justices dissenting, will be found at page
40 of the Record. That court held the Long
> Sault company’s charter constitutional, but re-
f fused the writ on the ground that the Legisla-
ij ture by the repealing act had appropriated under
the State’s power of eminent domain the fran-
chises theretofore granted to the company, and
had sent the company for its compensation to
the Court of Claims. In other words the Appel-
late Division ruled that the Legislature was not
successful in repealing the act on the ground that
it violated the State Constitution, but, since in
addition to stating the unconstitutional phases
of the act as a reason for the repeal, the Legisla-
ture had attached a clause to the repealing act,
section 4, providing that ‘‘ an enumeration in
this act of the grounds for said repeal shall not
be deemed to qualify or impair the full force and
effect of the repeal,’’ and had further given the
company a tribunal in which to present its claims,
it resulted that the Legislature intended, in the
event the unconstitutionality of the act was not
judicially sustained, to recover these franchises
nevertheless for the people by payment of their
value to the company. In short, the Appellate
Division held that the franchises were con-
demned.
From the decision of the Appellate Division
the Long Sault company appealed to the Court
of Appeals. The decision of the Appellate Di-
vision was there reversed and the charter de-
3
(el a RINNE Sst 8. ——s
1U
elared unconstitutional in an opinion written by
Chief Justice Bartlett with whom five other
judges concurred and but one dissented (212
N. Y. 1.) (Record, p. 67.) That part of the
charter which provided that ‘‘ navigation shall
be preserved in as good condition as, if not better
than, the same is at present ’’ was held by the
court to be in excess of the power of the Legis-
lature, i. e. that the Legislature did not possess
the constitutional right to convey away the
State’s control over navigation at that point to
the extent attempted in the above grant to the
Long Sault company, because the terms of that
grant were so broad as to completely foreclose
the exercise in the future of the sovereign power
and duty of the State to improve navigation in
the river. (Record, p. 70.)
On motion of the plaintiff in error the remittitur
from the Court of Appeals was amended to show
that the plaintiff in error had presented in that
court a brief in which its counsel claimed that the
charter of the Long Sault company constituted a
contract between the State and the company, and |
that such contract had been impaired by the re-
pealing act, contrary to the prohibition in the
Fourteenth Amendment to the Constitution of
the United States. (Record, p. 52.)
The State on that motion asserted and now as-
serts that no such Federal question exists.
SSS A AA NEL eae NNR EONS cat eet tea
1]
POINT I
THERE IS NO FEDERAL QUESTION.
THE COURT OF APPEALS OF THE STATE
OF NEW YORK SIMPLY CONSTRUED THE
7 STATE CONSTITUTION AND GAVE NO
/ EFFECT WHATEVER TO THE REPEAL-
j ING ACT CLAIMED BY THE PLAINTIFF
IN ERROR TO HAVE IMPAIRED ITs
CONTRACT WITH THE STATE. THE
CHARTER HAD BEEN DECLARED UN-
CONSTITUTIONAL BY THE ATTORNEY-
GENERAL, THE GOVERNOR AND THE
CONSERVATION COMMISSION » AND THIS
MANDAMUS PROCEEDING NOW BE-
FORE THIS COURT HAD BEEN INSTI-
TUTED AND THE CHARTER DECLARED
UNCONSTITUTIONAL BY THE SUPREME
COURT OF THE STATE OF NEW YORK
LONG BEFORE THE REPEALING ACT
WAS PASSED.
Misgivings as to the constitutionality of the
Long Sault charter had arisen immediately after
its passage. The impression that the act was
unconstitutional had gradually grown so general
that the Legislature on or about March 29, 1912,
sought the advice of the Attorney-General by a
\) formal resolution requesting that officer’s opinion
on the constitutionality of the Long Sault Act.
The Attorney-General was not to report forth-
with, but was given ample time, almost a year,
or until the convening of the next session at the
2° ETN Seto al
12
- beginning of the year 1913 in which to prepare
his opinion. The Legislature it may therefore be
inferred did not intend to infringe upon any
rights of the Long Sault company by repealing
the charter, unless it became convinced that the
charter act was unconstitutional and no such
rights existed. (Record, p. 18.) The Attorney-
General rendered his opinion to the Legislature on
January 1, 1913. A message from the Governor
on January 15, 1913, to the Legislature (p. 20)
stated that he was fully in accord with the opin-
ion of the Attorney-General and recommended
the repeal of the charter, adding that ‘‘ the At-
torney-General, the State Conservation Commis-
sion and myself are convinced that the act is void
and unconstitutional and that the appropriate
action to be taken by the Legislature at this time
is to repeal the said act.’’? Nor was any sum-
mary step then taken by the Legislature, but the
repeal bill introduced on January 13th remained
before that body until May 2d, a period of four
months, before it received the assent of both
Houses. So that we are safe in assuming that
the Legislature was honest in its statement in
the repeal bill that it was repealing the charter
only because the same would not stand the test
of constitutionality. In other words there was
no attempt or design to impair any contract. The
Legislature merely felt called upon to rectify its
excessive use of power and to make its conduct
before the people accord with constitutional limi-
tations. Repealing acts for this purpose are
quite proper. (Jilinois Central Rd. v. Illinois,
146 U. S. 387; Cove v. State, 144 N. Y. 391.)
In defeating the plaintiff in error the courts
of the State of New York did not rely in any de-
Ree ors 14 BARES OETA OM Age SEIN we LIT CO OS, RM ALS Aa A Sprig ee FILA hii
13
gree upon the repealing act. As we have stated,
this proceeding for mandamus was brought and
was decided adversely to the plaintiff in error by
the Supreme Court before the repealing act was
passed (Record, p. 67), and the Court of Appeals
which this writ of error reviews barely mentions
in its opinion that such an act was passed. The
whole reasoning of that court proceeds along the
line of the unconstitutionality of the original
charter, the court construing the charter in the
light of the State Constitution without any con-
sideration at all of the force of the repealing act.
The Court of Appeals determined that the navi-
gation grant was in excess of the power of the
Legislature, and decided the case on that single
ground. There was no effort or design to evade
the repealing act because no evasion was neces-
sary. The proceeding had come into court un-
affected by the repealing act and it passed out
of the State courts uninfluenced by anything in
that act. True the intermediate court attempted
to make use of the repealing act for the benefit
of the plaintiff in error saying its franchises had
been appropriated by the State under the repeal-
ing act, but no court rested upon or used in any
wise the repealing act in derogation of the com-
pany’s charter.
It is we understand the ruling of this court
that where the State court gives no effect to the
subsequent enactment (which is claimed to im-
pair the obligation of a contract) the jurisdiction
of this court does not attach, and in determin-
ing whether effect has been given to the latter
statute the court is not limited to a mere con-
sideration of the language of the opinion of the
4
ee
a enorme rrrcemovini a . wssegust ——— — “aah RIT ON
State court. (Louisiana Ry. & Navigation Co. v.
New Orleans, 235 U. S. 164.)
We have therefore attempted to show that the
Court of Appeals acted entirely outside the re-
pealing act, without any recognition of its valid-
14
ity or operation, and that the decision of the court
would have been the same had no repealing act
been passed or thought of.
It does not seem desirable to quote from the
numerous decisions of this court showing that
qeotion-237-of- the dudieiat+Code does not ‘‘ reach
errors committed by a State court when passing
upon the validity or effect of a contra under he
laws in existence when it was made,’
as it has been repeatedly stated, is aimed only at
the legislative power of states and not at the de-
cisions of their courts.
1on
Cross Lake Country Club v. Louisiana,
224 U.S. 632, 638.
New Orleans Waterworks v. Louisiana
Sugar Co., 125 U. S. 18, 38, 39.
St. Paul Gas Light Co. v. St. Paul, 181
U. S. 142.
Fisher v. New Orleans, 218 U. S. 438.
Missouri d) Kansas Interurban Ry. Co.
v. Olathe, 222 U. S. 187, 1990.
Central Land Co. v. Haidley, 159 U.S.
103, 110.
; Ennis Waterworks Co. v. Ennis, 233
U. S. 652, 655-657.
Bacon v. Teras, 163 U.S. 207. \
Turner v. Wilkes County Commission-
ers, 173 U.S. 461, 462, 463.
Railroad Company v. McClure, 10 Wal-
lace, 511, 515.
15
McCullough v. Virginia, 172 U. 8. 111,
116, 117.
Lehigh Water Company v. Easton, 121
U.S. 338.
The Court of Appeals decided this case on
grounds entirely independent of the repealing
act. In fact the State courts had jurisdiction of
this case before the repealing act was passed and
had already decided adversely to the constitu-
tionality of the charter. The courts therefore
and not the Legislature have destroyed the char-
ter of the Long Sault company.
We have thought the proposition so well es-
tablished as not to permit citation of authority
that the question whether a State law violates
the State Constitution does not present a Federal
question. (Hadacheck v. Sebastian, 239 U. S.
394.) And yet plaintiff in error purports to
find authority in section 237 of the Judicial Code
for a review of this very question.
Section 237 of the Judicial Code (formerly
§ 709 of the Revised Statutes) reads as follows:
‘*A final judgment or decree in anv suit in
the highest court of a State in which a de-
cision in the suit could be had, where is drawn
in question the validity of a treaty or statute
of, or an authority exercised under, the
United States, and the decision is against
their validity; or where is drawn in question
the validity of a statute of, or an authority
exercised under any State, on the ground of
their being repugnant to the Constitution,
treaties, or laws of the United States, and the
decision is in favor of their validity ; or where
any title, right, privilege, or immunity is
claimed under the Constitution, or any treaty
PRE GE ORE gs oe nes eee
eee dpa DA aN Sie et ect eo raenern taeda SHA Tp RR wae ec ti
16
or statute of, or commission held or au-
thority exercised under, the United States,
and the decision is against the title, right,
privilege, or immunity especially set up or
claimed, by either party, under such Con-
stitution, treaty, statute, commission, or au-
thority, may be re-examined and reversed or
affirmed in the Supreme Court upon a writ of
error.’’
The above statute contains three groups of
State court decisions. The United States Su-
preme Court will review:
1. Where the validity of a treaty or statute of,
or an authority exercised under the United States,
is drawn in question and the decision of the State
Court is against their validity ;
2. Where the validity of a statute of or an au-
thority exercised under any State, is drawn in
question on the ground of their being repugnant
to the Constitution, treaties or laws of the United
States, and the decision of the State court is in
favor of their validity ;
3. Where any title, right, privilege or immu-
nity is claimed under the Constitution, or any
treaty or statute of, or commission held, or au-
thority exercised under, the United States, and
the decision of the State court is against the title,
right, privilege or immunity so set up or claimed
under such Constitution, treaty, statute, commis-
sion or authority.
Under subdivision B of the first point of the
brief of the plaintiff in error (p. 28) it is asserted
that the repealing act and the legislative, execu-
tive and judicial action of the New York State
government has been drawn in question as being
repugnant to the Constitution of the United
States, and the decision of the State court has
been in favor of the validity of the State action.
17
We have previously shown that the validity of
the repealing act was not drawn in question be-
cause the repealing act was not noticed or given
any force or effect in the determination of the
Court of Appeals. In every case which plaintiff
in error cites, where this court has taken juris
diction to determine whether a contract exists
and has been impaired, there was involved, the
facts show, the enforcement by the State court of
a subsequent statute of the State Legislature.
We will refer seriatim to the cases cited by the
plaintiff in error.
In Bridge Proprietors v. Hoboken Co., 1 Wal-
lace, 116, an act of 1860 of the State Legislature
of New Jersey granted rights which it was
claimed had already been granted to others by a
statute of 1790. Suit for injunction was brought
by the grantees under the act of 1790 against
the beneficiaries under the act of 1860, and the
question clearly was whether the act of 1860, the
subsequent statute, which the State court en-
forced, was valid.
In Jefferson Branch Bank v. Skelly, 1 Black,
436, although the language used is very broad
with respect to the right of this court to review
the contracts of States, the court is careful to
elucidate that jurisdiction depends always in
such cases upon the fact that a person has been
‘‘ aggrieved by some particular State legisla-
tion.’’ A subsequent taxing statute was enforced
by the State of Ohio in violation of an earlier ex-
emption statute.
In University v. People, 99 U. S. 309, in order
to decide whether a subsequent taxing statute of
1872 should operate (and the State court had de-
en —
clared it should be enforced), it was necessary to
inquire whether an earlier exemption statute of
1855 constituted a valid contract. :
In Wright v. Nagle, 101 U. S. 791, the subse-
quent State action which impaired the grant to
maintain a toll bridge was the granting (i. e. en-
forcement) of a new franchise to different par-
ties for a toll bridge in the same vicinity.
A subsequent municipal ordinance enforced
against a railroad, in Atlantic Coast Line Rail-
road Company v. City of Goldsboro, 232 U.S.
548, was alleged to have impaired the original
railroad franchise.
The same may be said of Louisiana Railway &
Navigation Co. v. New Orleans, 235 U. S. 164,
where the city authorities gave ‘‘ vitality and
operation to the subsequent law ’’ in such a way
as to defeat a prior ordinance conferring rights
upon the railroad company.
With respect to McCullough v. Virginia, 172
U. S. 102, this court is well aware that the State
court in that case, in order to give effect to sub-
sequent taxing legislation, attempted to thwart
the jurisdiction of the United States Supreme
Court by the ruse of deciding that the original
exemption statute was void; and this after the
same court, and the United States Supreme
Court also, had earlier declared the exemption
statute valid. Mr. Justice Brewer’s opinion con-
tains this significant language:
‘Tt must also be borne in mind that THIS :
IS NOT A CASE IN WHICH, AFTER A
STATUTE ASSERTED TO BE THE
FOUNDATION OF A CONTRACT, ACTS
ARE PASSED DESIGNED AND TEND-
18
19
ING TO DESTROY OR IMPAIR THE AL-
LEGED CONTRACT RIGHTS, AND THE
FIRST TIME THE QUESTION IS PRE-
SENTED TO THE HIGHEST COURT OF
THE STATE IT TAKES NO NOTICE OF
THE SUBSEQUENT ACTS, BUT IN-
QUIRES SIMPLY AS TO THE VALIDITY
OF THE ALLEGED CONTRACT. Here it
appears that the state courts had repeatedly
held the act claimed to create a contract valid,
and had passed upon the validity of sub-
sequent acts designed and calculated to de-
stroy and impair the rights given by such con-
tract, sustaining some and annulling others.
Some of those judgments had been brought
to this court, and by it the validity of the
original act had been uniformly and repeat-
edly sustained, and the invalidity of subse-
quent and conflicting acts adjudged, and now
at the end of many years of litigation, with
these subsequent statutes still standing on
the statute books unrepealed by any legisla-
tive action, the state court, with only a casual
reference to those later statutes, goes back
to the original act, and, reversing its prior
rulings, adjudges it void, thus in effect put-
ting at naught the repeated decisions of this
court as well as its own. Under such cireum-
stances it seems to us that it would be a clear
evasion of the duty cast upon us by the Con-
stitution of the United States to treat all this
past litigation and prior decisions as mere
nullities and to consider the question as a
matter de novo. It would be shutting our
eyes to palpable facts to say that the Court of
Appeals of Virginia has not by this decision
given effect to these subsequent statutes.’’
(
It is, therefore, quite apparent that the cases
cited by plaintiff in error have no application
where the subsequent legislative act, as in the
20
case now before the court, has been left untouched
and unenforced for the reason that it was en-
tirely unnecessary to turn to it or give it any
effect in arriving at the judgment which the Court
of Appeals rendered.
The plaintiff in error, continuing its argument,
seems to think that it had a right under the Fed-
eral Constitution to the protection of public con-
fidence in the validity of its franchise, so that it
might the better seek capital and obtain the con-
sent of Congress, and, therefore, the acts of the
‘Attorney-General, the Governor and the Legis-
lature in concerning themselves with, in discus-
sing and in construing the Long Sault statute
impaired the obligation of the charter. This is
certainly a radical view that the State officers or
departments of State government must forever
remain silent as to the constitutionality of former
legislation lest perchance they destroy a stock
and bond market; and more preposterous still is
the assertion that the determination of the high-
est court of New York State was influenced by
these acts of the other departments of State gov-
ernment, and that that court was practically in
league to ‘‘ complete the impairment ”’ by hold-
ing the charter invalid. (P. 37.)
In the case of Carondelet Canal Co. v. Louist-
ana, 233 U. S. 362, in the brief of plaintiff in error,
it was the appointment of a Board of Control by
an act of the Louisiana Legislature, which board
was charged with the duty of taking over prop-
erty which the canal company claimed to own, that
constituted the ‘‘ authority exercised ’’ under
State law resulting in the accrual of jurisdiction
in this Court. In our case the State officers exer-
ar
cised no authority whatsoever. They did not at-
tempt to interfere nor had they power to inter-
fere under State law with the rights or property
claimed by the Long Sauit company. The State
officers simply raised the question whether those
rights were lawfully. possessed. Raising a ques-
tion cannot be exercising an authority. Conse-
quently no ‘‘ authority exercised ’’? by State offi-
cers was involved in or upheld by the Court of
Appeals’ decision.
Under subdivision C of point one (p.41), plain-
tiff in error claims that this case would also fall
within the third group of cases referred to in sec-
tion 237 of the Judicial Code, namely, those cases
in which a title, right or immunity under the Fed-
eral Constitution is claimed in the State court and
the decision of the State court has been against
such right or title.
No right, title, privilege or immunity under the
Federal Constitution could, we think, be involved
in the State court where the question there pre-
sented was but the testing of the charter with the
requirements of the Constitution of New York
State. The plaintiff in error had no rights what-
ever except as it received them under that char-
ter. It is only by assuming the validity of the
charter and the actual existence of the property
rights expressed therein and by then bringing in
the State court decision as in derogation thereof
that the plaintiff in error can make any claim to
a Federal constitutional right or immunity having
been violated. Now the State court decision
could not violate property rights protected by
the Federal Constitution if no such rights existed,
and surely a decision by the State court that the
21
22
grant to the plaintiff in error was beyond the con-
stitutional authority of the Legislature, could not
be a taking without due process of law of rights
which never were lawfully granted.
In all the cases cited by plaintiff in error under
subdivision C of point one, the rights, privileges
or immunities were created (not merely pro-
tected) by the Federal Constitution or by Federal
statute. In our case the rights were created by
the State, and the Federal constitutional protec-
tion applied to them only if the State statute was
effectual in creating them.
We analyze the cases presented by the brief of
the plaintiff in error:
In St. Louis & Iron Mountain Railway v. Tay-
lor, 210 U. S. 281, the State court was construing
a Federal statute. Such a situation beyond doubt
always raises a Federal question.
In Atchison, Topeka & Santa Fe Ry. v. Sowers,
213 U. S. 55, the issue was whether a State was
required to give force and effect to the laws of a
territory, and that of course is a Federal ques-
tion arising under the full faith and credit clause,
and a refusal to apply the territorial statute was
the denial of a privilege or right under the Fed-
eral Constitution.
In Chicago, Burlington & Quincy Railroad Co.
v. Chicago, 166 U. S. 226, there arose the ques-
tion of taking property without just compensa-
tion. This also is a right or immunity granted
by the Fourteenth Amendment, but is inopera-
tive until property rights are found.
In Williams v. Bruffy, 96 U. S. 176, a subse-
quent statute impaired the obligation of a con-
tract.
aa
23
In American Sugar Refining Co. v. Louisiana,
179 U. S. 89, the question was whether a State
statute denied the equal protection of the laws,
and so also in Yick Wo v. Hopkins, 118 U. S. 356.
The question of taking property without due
process of law was involved in the decision of
Scott v. McNeil, 154 U. S. 34.
All the above cases presuppose the existence of
property rights. The existence of property rights ~
is a local State question (St. Anthony Falls Water
Power Co. v. Commissioners, 168 U. S. 349; State
v. Sanford, 19 How. 393; Eldridge v. Trezerant,
160 U. S. 452, 466; Sauer v. New York, 206 U.S.
536). As we have before said, the rights of the
plaintiff in error, if any there were, were created
by the State statute, and the Federal constitu-
tional protection applied to them only if the State
statute was effectual in creating them.
It follows that the question of Federal rights
or immunities was not passed upon by the State
court and was not a question which had to be
decided in order to induce the judgment arrived
at by the Court of Appeals. The State court
gave judgment without being obliged to consider
the Federal question. In short there was no Fed-
eral right which the judgment could or did deny.
This Court accordingly will not take jurisdiction.
Crowell v. Randell, 10 Peters, 368, 392.
Sayward v. Denny, 158 U. S. 180, 184.
Giles v. Teasley, 193 U. S. 146, 160.
Chicago, Burlington & Quincy Rail-
road Co. v. Drainage Commission-
ers, 200 U. S. 561, 580.
Western Union Telegraph Co. v. Wil-
son, 213 U. S. 52.
. LOB LG ETE RM
ae ee Ee aay
24
First National Bank v. Estherville,
215 U.S. 341.
Appleby v. Buffalo, 221 U.S. 524, 529.
In Crowell vy. Randell above, Mr. Justice Story
observed that it must appear,
‘* from the facts stated by just and necessary
inference, that the question was raised, and
that the court below must in order to have ar-
rived at the judgment pronounced by it, have
come to the very decision of that question as
indispensable to that judgment.”’
i
And as Chief Justice Fuller, speaking for the
court in Sayward v. Denny, above cited, has
stated:
** Tt must appear from the record by clear
and necessary intendment, that the federal
question was directly involved so that the
State court could not have given judgment
without deciding it.’’
Plaintiff in error further contends under sub-
division E of point one (p. 47), that by the amend-
ment of December 23, 1914, to section 237 of the
Judicial Code a review of the questions con-
tained in this record may be had even if the plain-
tiff in error has no standing in presenting them
to this Court. The amendment of 1914 added the
provision that the decision of the State court
might be reviewed when it has been in favor of
the validity of the United States statute or au-
thority or against the validity of the State
statute.
In reply we need but state that no revision by
this Court will take place if the decision was in
favor of Federal rights except on application of
} 25
the party aggrieved by the decision, for no revi-
sion would be necessary to protect the national
government in the exercise of its rightful powers
(Missourt v. Andriano, 138 U. S. 496, 500). Ap-
plying the rule to our case it would be necessary
that the Stete of New York apply for ‘a review
in the event the decision had been against it.
Only those persons belonging to the class for
whose benefit a particular statute was enacted
may take advantage of its provisions.
Red River Valley Bank v. Craig, 181
U. S. 548, 558.
Hatch v. Reardon, 204 U. S. 152, 160.
Rosenthal v. New York, 226 U.S. 260,
271.
Missourt, Kansas & Texas R. R. v.
Cade, 233 U.S. 642, 648.
For this Court to decline jurisdiction will not
work a grave hardship upon the plaintiff in error,
for the repealing acts of 1913, chapters 452 and
453, in addition to directing the State Comp-
troller to return to the company every dollar it
had paid to the State, offered the plaintiff in
error the Board of Claims as a tribunal in which
to obtain redress for its losses (outside of its al-
leged franchise rights). The act contains this
paragraph:
‘Section 1. Jurisdiction is hereby con-
ferred upon the board of claims to hear,
audit and determine the alleged claims, if
any, which may be presented by the Long
Sault Development Company against the
state of New York by reason of the repeal by
the legislature of chapter three hundred and
fifty-five of the laws of nineteen hundred and
7
cannes
26
seven, and the state hereby consents in all
such claims to have its liability determined,
provided that such alleged claims, if any,
shall be filed with the board of claims within
six months after this act takes effect. No
award shall be made on any such claims
against the state except upon such legal evt-
dence as would establish a liability against an
individual or corporation in a court of law
or equity.’’
Whatever moneys the company had been in-
duced to expend upon the faith of the illegal
grant and were lost to it, would be such as could
have been recovered against an individual in a
court of equity. Plaintiff in error admits that it
could have recovered such losses (p. 126 plaintiff
in error’s brief) :
‘¢These facts gave a foundation for an
equitable moral claim; and the direction in
Chapter 452, to repay to the Company all
amounts paid to the State Treasurer with in-
terest, is a clear legislative recognition of the
merit of a claim which was capable of liquida-
‘tion, while the other claims of the same
character had of necessity to be referred by
Chapter 453 to the Court of Claims because
they were unliquidated.
If we construe Chapter 452 as intended to
effect an absolute repeal of the special fran-
chises because they were unconstitutional and
Chapter 453 as providing a method for ascer-
taining unliquidated, equitable claims, we
shall give to the acts a meaning consistent
with a purpose of the legislature.’’
Yet the plaintiff in error apparently did not
desire to take advantage of the Court of Claims
as a source from which to recover its equitable
losses, and now proceeds to attack the State’s
offer to pay damages as unconstitutional on the
theory that it is a gift of the State’s moneys. We
are confident the Act of 1913, chapter 453, is not
unconstitutional in this regard (see Point VII of
this brief).
The writ of error should be dismissed for want
of jurisdiction.
27
.
e prien A, Sey F ow, o rsa, rs w
staal Si toca eye 7 oo nea anh eee te oe Re nee eer ae eee eee ISIE ARRAN ARN
POINT II
THE LEGISLATURE CANNOT ALIEN-
ATE ITS TOTAL SOVEREIGN CONTROL
OVER NAVIGATION UPON PUBLIC
WATERS TO A PRIVATE WATER POWER
CORPORATION WHICH UNDER THE
TERMS OF THE GRANT IS NOT OBLIGED
TO PERFORM ANY PUBLIC SERVICE
WHATEVER, THIS PRINCIPLE HAS
BEEN CLEARLY PRONOUNCED BY THIS
COURT IN ILLINOIS CENTRAL RAIL-
ROAD Co. v. ILLINOIS, 146 U. S. 387.
This point though not presented in the opinion
of the Attorney-General to the Senate, was raised
by him in the courts.
It has been long past controversy that the
Legislature, may not surrender its sovereign
duties over the public health and morals. Shortly
after the decision in the Slaughter House Cases,
this Court held in Butchers’ Union Co. v. Crescent
City Co., 111 U. S. 746, 753, that the special
franchise granted to the Slaughter House Com-
pany to monopolize the killing of animals in New
Orleans, was not such a contract as could limit
the future exercise of legislative power on that
subject to the prejudice of the general welfare:
‘‘No legislature can bargain away the
public health or the public morals. The
people themselves cannot do it, much less
their servants. The supervision of both these
subjects of governmental power is continuing
| —————e
29
in its nature, and they are to be dealt with as
the special exigencies of the moment may re-
quire. Government is organized with a view
to their preservation, and cannot divest itself
of the power to provide for them. For this
purpose the legislative discretion is allowed,
and the discretion cannot be parted with any
more than the power itself.’’
Similar decisions have issued from this court
at various times in:
Stone v. Mississippi, 101 U. S. 814.
New Orleans Gas Co. v. Louisiana
Lighting Co., 115 U. S. 667.
Newton v. Commissioners, 100 U. S.
548.
Charles River Bridge Co. v. Warren
Bridge, 11 Peters, 420.
In respect of the governmental control over
navigable waters, it has likewise become funda-
mental law that the Legislature cannot abdicate
its sovereign trust thereover, and that every
grant of a right to erect structures in navigable
waters, and every grant of lands beneath them,
excepting it may be a grant in the direct aid of
commerce, is subject to the implied reservation
that the State may destroy it with impunity in
the improvement of navigation.
In Smith v. Rochester, 92 N. Y. 463, 477, the
court says:
‘‘Among other rights which pertain to
sovereignty is that of using, regulating and
controlling for special purposes the waters of
all navigable lakes or streams, whether fresh
or salt, and without regard to the ownership
30
of the soil beneath the water. This right is
known as the jus publici and is deemed to be
inalienable.
While a sovereign may convey its proprie-
tary rights, it cannot alienate its control over
navigable waters without abdicating its
sovereignty ’’ (p. 483).
In Matter of City of New York, 168 N. Y. 134,
145:
‘‘The right of control over navigable
waters of the state is a legislative power and
cannot be destroyed by any authority whatso-
ever.”’
In Core v. The State, 144 N. Y. 396, 405:
‘¢ That the dominion and ownership of such
lands is in the sovereign for the benefit of the
public has long been settled. Such dominion
and ownership of property generally implies
the power of absolute disposition, but with re-
spect to the land under navigable or tidal
waters an important limitation has been en-
grafted upon this power from the nature of
the title. The title of the state to the sea-
coast and the shores of tidal rivers is differ-
ent from the fee simple which an individual
holds to an estate in lands. It is not a pro-
prietary, but a sovereign right, and it has
been frequently said that a trust is engrafted
upon this title for the benefit of the public of
which the state is powerless to divest itself.’’
(Citing cases.)
In Jilinois Central Railroad Co. v. Illinois, 146
U. S. 387, 452:
‘‘ That the state holds the title to the lands
under the navigable waters of Lake Michigan,
within its limits, in the same manner that the
state holds title to soils under tide water, by
31
the common law, we have already shown, and
that title necessarily carries with it control
over the waters above them whenever the
lands are subjected to use. But it is a title
different in character from that which the
state holds in lands intended for sale. * * *
It is a title held in trust for the people of the
state that they may enjoy the navigation of
the waters, carry on commerce over them, and
have liberty of fishing therein freed from the
obstruction or interference of private parties.
* * * The state can no more abdicate its
trust over property in which the whole people
are interesied, like navigable waters and soils
under them, so as to leave them entirely under
the use and control of private parties, except
in the instance of parcels mentioned for the
improvement of the navigation and use of the
waters, or when parcels can be disposed of
without impairment of the public interest in
what remains, than it can abdicate its police
powers in the administration of government
and the preservation of the peace.’’
The principle has had such recent application
in Fulton Light Heat and Power Co. v. The State,
200 N. Y. 400, 417, in Lewis Blue Point Oyster
Co. v. Briggs, 198 N. Y. 287, 292; 229 U. S. 82,
and in United States v. The Chandler-Dunbar
Water Power Co., 229 U. S. 53, that quotations
from further authorities will but overburden our
brief.
At page 418 of the Fulton Light, Heat and
Power Company case the court said:
‘The right of the State to make improve-
ments in the river for the benefit of the pub-
lic, in facilitating navigation and transporta-
tion thereon must be fully conceded. It may
do so without regard to the private owner-
PeOseR”
32
ship of the bed of the river. The proprietary
interest of the riparian owner is subordinate
to the public easement of passage and the
State may be regarded as the trustee of a
special public servitude * * *. In the ex-
ercise of its authority, in that respect, the
legislature may direct the performance of
acts by state officers which tend to promote
the public right of passage and transporta-
tion, without subjecting the state to liability.’’
At page 87 of the Lewis Blue Point Oyster
case, Mr. Justice Lurton writes:
‘‘Tf the public right of navigation is the
dominant right and if, as must be the case,
the title of the owner of the bed of navigable
waters holds subject absolutely to the public
right of navigation, this dominant right must
include the right to use the bed of the river
for every purpose which is in aid of naviga-
tion. This right to control, improve and regu-
late the navigation of such waters is one of
the greatest of the powers delegated to the
United States by the power to regulate com-
merce.”’
And at page 62 of the Chandler-Dunbar Water
Power case, the same justice again writes:
‘‘ This title of the owner of fast land upon
the shore of a navigable river to the bed of
the river, is at best a qualified one. It is a
title which inheres in the ownership of the
shore and, unless reserved or excluded by im-
plication, passes with it as a shadow follows
a substance, although capable of distinct
ownership. It is subordinate to the public
right of navigation, and however helpful in
protecting the owner against the acts of third
parties, is of no avail against the exercise of
—_—
33
the great and absolute power of Congress
over the improvement of navigable rivers.
That power of use and control comes from
the power to regulate commerce between the
States and with foreign nations. It includes
navigation and subjects every navigable river
to the control of Congress. All means hav-
ing some positive relation to the end in view,
which are not forbidden by some other pro-
vision of the Constitution, are admissible.
If, in the judgment of Congress, the use of
the bottom of the river is proper for the pur-
pose of placing therein structures in aid of
navigation, it is not thereby taking private
property for a public use, for the owner’s
title was in its very nature subject to that use
in the interest of public navigation.’’
The following authorities may be consulted for
illustrations of the same principle:
Vanderbilt v. Adams, 7 Cow. 349, 350.
Slingerland v. International Contract
Co., 43 App. Div. 215; affd., 169 N.Y.
60, 70.
Canal Appraisers v. People, 17 Wend.
571.
Matter of Commissioners of State
Reservation, 37 Hun 537.
City of Buffalo v. D. L. & W. R. R.
Co., 136 App. Div. 274; affd. 204
N. Y. 562.
Lehigh Valley R. R. Co. v. State, 146
App. Div. 151, 159; approved 204
N. Y. 473, 474.
Sage v. The Mayor, 154 N. Y. 61, 79.
Matter of Fishway, 131 App. Div. 403.
People v. New York & Staten Island
Ferry Co., 68 N. Y. 71, 77.
RN SLES INPRO LE NT
—
Langdon v. The Mayor, 93 N. Y. 129.
West Virginia Pulp and Paper Co. v
Peck, 82 Mise. Rep. 72, (Aug. 1913).
Union Bridge Co. v. United States,
204 U. S. 364.
Greenlief Lumber Co. v. Garrison, 237 ;
U. S. 251.
Philadelphia Co. v. Stimson, 223 U. S.
605.
uh
The foregoing expressions are not presented
here to deny the right of the State to let out to
a corporation the improvement of a waterway,
reserving to the company in compensation the
privilege of taking tolls, for that method was
early employed when government funds were
small, and has been continued since in instances
without number. But these corporations were in
fact subordinate governmental agencies obliged
to improve navigation over whose activities the
State retained control both as to the method of
navigation improvement and the regulation of
tolls.
Sands v. Manistee River Improvement
Co., 123 U. S. 288.
Monongahela Navigation Co. v. U. S.,
148 U.S. 312.
People v. Canal Appraisers, 33 N. Y.
461.
To the Long Sault Company was handed over
absolute control of the river St Lawrence with
not a single duty upon the company with respect
to navigation improvement except to preserve
navigation as good as the company found it
:
=a
(which of course is the very opposite of improve-
ment), with no reservation of a right in the State
to regulate the number, size, form or location
of the water power dams and without reservation
of the St \te’s sovereign right and duty to guard
: in the future the public interest of navigation.
The title of the Long Sault act apprises us that
one of the objects of the incorporation is ‘‘ to im-
prove the navigation of the St. Lawrence river.’’
In the act as regards navigation we find this
meagre agreement with the State of New York,
and nothing more: ‘‘ upon condition that the
rights hereby granted shall never be so used as to
impair or obstruct the navigation of the St. Law-
rence river but on the contrary that such naviga-
tion shall be preserved in as good condition as,
if not better than, the same is at present, regard
being always had to the amount of the natural
flow of water as affecting its navigability from
time to time.”’
This stipulation is of no value whatever to the
State. It does not bind the company to do one
act toward the improvement of navigation. They
shall not impair the navigation, yet they need not
better it, meeting sufficiently their obligations if
navigation is kept as good as it is at present,
which all admit is not very good. In other words,
the State gets nothing. With all their great
structures in the river and the expectant hopes
of the people that navigation will be enhanced,
j the company may leave navigation just as bad as
now, and even worse than it is at present if re-
gard must be had ‘‘ to the amount of the natural
flow of water in the river ’’ after the construc-
tion of the dams, since the company may need
35
$2 TEN Tt ARAN E LN NE
36
at times for water power purposes all the water
impounded, sparing none for navigation. To ex-
press it differently, if the amount of the natural
flow of the water in the river would, assuming
the dams were not there, prevent any navigation,
the company may take advantage of that fact
and, although it may have sufficient waters stored
by its dams to keep navigation open, no duty
rests upon it to use the waters in that way, but
it may instead employ them solely for its power
generation. The State of New York would be
powerless under the contract. 'The only authority
which may by the act cause the construction and
enforce the use of locks is the United States
government:
‘* and that said corporation shall also erect
and construct a lock or locks as may be re-
quired by the United States of America ”’
(Record, p. 24).
The Legislature, acting in the name of the
State, has no right to thus divest itself of powers
over commerce in reliance upon future action of
the higher authority of the Federal government,
nor to surrender, as it has, to a private company
exclusive control over the navigation to the in-
jury of the public. We refer to the authorities
previously cited.
Chief Judge Bartlett of the Court of Appeals
well expressed the doctrine where he says (Rec-
ord, p. 70):
‘“*Tt (the iLorg Sault charter) virtually
turns over to the corporation entire control
of navigation at the Long Sault Rapids (pro-
vided, of course, that the consent of Congress
can be obtained). All that the corporation
az:
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37
must do is to construct the contemplated
works, pay the stipulated sums and keep the
navigation as good as it is now. No matter
how much the interests of the public may de-
mand the improvement thereof in the future,
the state will be powerless to act either di-
rectly or by constraint upon the corporation.
It is precisely as though the legislature should
confer upon a corporation exclusive authority
to construct works on the Hudson river to im-
prove the navigation between Albany and
Troy upon condition that such navigation
shall be preserved in as good condition as the
same is at present, and thereby preclude the
state from ever hereafter improving the
navigation itself. In my opinion the legisla-
ture cannot make such a contract in behalf of
the state.’”’ * *
‘The point that I desire to emphasize is
that the legislature cannot authorize the con-
veyance of a navigable portion of the St.
Lawrence to a private company to maintain
and control navigation thereon, thereby part-
ing for all time with its own power to improve
such navigation. The privilege of the state
to control the St. Lawrence as a navigable
river (subject to the direction of Congress)
cannot be assigned to others in the manner
attempted by this legislation. As long as the
waters are maintained as navigable they re-
main public waters of the state; and as long
as they remain public waters of the state the
state is bound to retain control over them in
the public interest.’’
And as was said by this court in Jllinois Cen-
tral Railroad Company v. Illinois, 146 U. S. 387,
454:
‘“‘The State holds the title to the lands
under the navigable waters in trust for the
people of the State that they may enjoy the
10
ne Sheree LAN ee OAS 9 BTR Bip 5, SRO Ee
emcee Soe per eee
‘ ..
navigation of the waters, carry on commerce
over them and have liberty of fishing therein,
freed from the obstruction or interference of
private parties. * * * The control of the
State for the purposes of the trust can never
be lost except as to such parcels as are used
in promoting the interest of the public
thereon or can be disposed of without any
substantial impairment of the public interest
in the lands and waters remaining. * * *
The State can no more abdicate its trust
over property in which the whole people are
interested, like navigable waters and soils
under them, so as to leave them entirely
under the use and control of private parties
except in the instance of parcels mentioned
for the improvement of the navigation and
use of the waters, or when parcels can be
disposed of without impairment of the public
interest in what remains, than it can abdicate
its police powers in the administration of
government and the preservation of the
peace.”’
‘‘The harbor of Chicago is of immense
value to the people of the State of Illinois
in the facilities it affords to its vast and con-
stantly increasing commerce; and the idea
that its legislature can deprive the State of
control over its bed and waters and place the
same in the hands of a private corporation
created for a different purpose, one limited to
transportation of passengers and freight be-
tween distant points and the city, is a propo-
sition that cannot be defended.’’
i ea ie
By the Long Sault charter all control over
navigation on one of the greatest rivers of the
State, and an international boundary stream, was
simply abdicated in favor of a private corpora-
tion, the aim of whose existence was not naviga-
tion betterment but financial gain from water
power development.
on.
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acaba ser saa . . -_ — ieminee ee ie
SISTENT eT Teena Goren cee tee Eats ieee
‘* Navigation,’’ we submit, was tucked in the
Long Sault act by its accelerators as a subter-
fuge to secure, and make secure, the grant of
water power. The act was an attempt to create
a franchise free from attack by the State itself
in the exercise of its sovereign duty to improve
this waterway as the calls of commerce might
make necessary. And New York State it is very
apparent will need the future control of these wa-
ters in the interest of navigation, if not for water
power development, for the reason, as stated in
the Chandler-Dunbar Water Power case, 229 U.S.
53, at page 67, concerning the St. Mary’s river,
connecting Lake Superior and Lake Huron, a
¢ navigation point no more strategic than the St.
Lawrence river, the outlet of all the Great Lakes
to the sea:
39
CERES
‘The falls and rapids are at the exit of
the river from the lake. Millions of public
money have already been expended in the
construction of canals and locks, by this gov-
ernment upon the American side, and by the
Canadian government upon its own side of
the rapids, as a means by which water craft
may pass around the falls and rapids in the
river. The commerce using these facilities
has increased by leaps and bounds. The first
canal had hardly been finished before it be-
came inadequate. A second upon the Ameri-
can side was constructed parallel with the
first. The two together are insufficient,
though the canal upon the Canadian side ac-
commodates much of the commerce. The
main purpose of the act of 1909 was to clear
the way for generally widening and enlarg-
ing facilities for the ever growing commerce
of the Great Lakes.’’
Commerce through the Cornwall canal which
carries traffic around the Long Sault rapids
RIESE arta heen ae AP tC Rae CE IRON SEI
40
totaled in 1867 in freight 753,114 tons; in 1886 in
freight 530,568 tons, and in 1906 in freight 1,636,-
117 tons. The total of freight tons in 1914 was
4,391,493. Which means, that present day com-
merce through the St. Lawrence river at this
point has increased 250 per cent. in eight years!
(Canadian Parliament Sessional Papers, 1907-8,
No. 10, p. 97; Sessional Papers, 1915, No. 14, p.
45).
The State may soon need all the waters of the
Long Sault for navigation. The promise to keep
navigation as good as now, is in its very terms
an impairment to future navigation. When the
time for future improvement arrives, the com-
pany may say ‘‘ we do not care to improve; we
have the water power, the grant to control navi-
gation and the title to lands under water; if you
wish to improve, you will have to pay for them.’’
What it will cost the State to appropriate the
property, the company will compute as follows:
It will have on hand 600,000 horse power of de-
veloped water power worth (at low figures) $300
per horse power, which means $180,000,000. It
has furthermore invested $50,000,000 in the dams,
power houses and other property of the company
(report on bill S. 1058, 61st Congress, 3d ses-
sion), but one-half of which amount will be in-
cluded in the above figure of $180,000,000. Thus
the total cost to the State for the opportunity
hereafter to improve navigation on the St. Law-
rence at the Long Sault rapids may easily amount
to the sum of $200,000,000. (For further data
with respect to the magnitude of this water
power project see Point III of this brief.)
In passing, it may be argued that the act, not
having had the approval of the Canadian govern-
~ oe na] FUT MA ede Petey ome —
NRG AI ae ery at mats PAA RR OO REN eta Sasi tama papas —
ment, violates the Webster-Ashburton Treaty of
1842, providing that:
‘Channels in the river St. Lawrence on
both sides of the Long Sault Islands and of
Barnhart Island * * * shall be equally
free and open to the ships, vessels, and boats
of both parties.’’
ea
However that may be, clearly the Long Sault
bill endeavors to abdicate to this private corpo-
ration all the sovereign trust in the State of New
York over miles of this gr
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