§ 7. [Forest preserve. ]—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. [New.] "The declaration of the state, through its Constitution and by legislative acts, indicates very clearly . . . that the use and occupation of these lands, within the forest preserve of the Adirondack park, is intended to be exclusive," and the state cannot take forest preserve lands, subject to their use by a railroad company. The use of lands for railroad purposes is inconsistent with devoting and preserving it for park purposes as wild forest lands; the state intended to take and hold the lands in the Adirondack park free and clear from all encumbrances. Adirondack R. Co. v. Indian River Co. (1898) 27 App. Div. 326, 50 N. Y. Supp. 245. See also People v. Adirondack R. Co. (1899) 160 N. Y. 225, 54 N. E. 689, affirmed in (1900) 176 U. S. 335, 44 L. ed. 492, 20 Sup. Ct. Rep. 460. A general article on the forest preserve will be found in the third volume in connection with the work of the Convention of 1894. § 8. [Certain canals not to be sold.]—The legislature shall not sell, lease, or otherwise dispose of the Erie canal. the Oswego canal, the Champlain canal, the Cayuga and Seneca canal, or the Black River canal; but they shall remain the property of the state, and under its management forever. The prohibition of lease, sale, or other disposition herein contained shall not apply to the canal known as the Main and Hamburg street canal, situated in the city of Buffalo, and which extends easterly from the westerly line of Main street to the westerly line of Hamburg street. All funds that may be derived from any lease, sale, or other disposition of any canal shall be applied to the improvement, superintendence, or repair of the remaining portion of the canals. [Const. 1846, art. 7, § 6; Am. 1874; Am. 1882.] In People v. Stephens (1878) 13 Hun, 17, the court say that the "clear and obvious meaning of this section of the Constitution is that the state will not lease and sell the canals while they continue to be canals." In Elwood v. Rochester (1887) 43 Hun, 103, the court say that the legislature cannot authorize the imposition of a tax or assessment upon the Erie canal which may result in its being sold or leased. The provision against disposing of the canals was not violated by the act of 1889, chap. 291, as amended by chap. 314, Laws 1890, which permitted the city of Syracuse to take surplus water from Skaneateles lake which had been appropriated by the state as a feeder to the Erie canal. This subject was fully considered in Sweet v. Syracuse (1891) 129 N. Y. 316, 27 N. E. 1081, 29 N. E. 289, where the court say that, applying a fair and reasonable construction to this limitation, the statute is not within the letter or spirit of the constitutional prohibition. "The management of the canal must, under this provision, devolve upon the legislature and such officers. of the state as are charged with duties in that regard by the Constitution. This power of management implies discretion in many matters of detail. What the framers of the Constitution intended by this provision was that the canal, as a highway of communication, should not be sold or leased, but remain the property of the state, and forever under its management, in order to promote the commercial prosperity of the people." The use of the waters of canal feeders "by riparian owners, and even by cities that have grown up upon the line of the canal, for domestic or manufacturing purposes, subject to the paramount rights of the state, is entirely consistent with the public use to which they had been devoted, and this must have been contemplated when the appropriation was made." The same view of the Syracuse water act had been expressed by Justice Kennedy at special term in Re Comstock (1889) 25 N. Y. S. R. 611, 5 N. Y. Supp. 874, and he there pointed out that, as early as 1825, the legislature authorized the canal board to sell surplus water from the canals or feeders, if such water could be spared without injury to canal navigation, and the legislative policy was continued. by subsequent statutes. By the canal law of 1894, chap. 388, the term "canal" as used in that chapter "includes all the side cuts, feeders, and other works belonging to the state connected therewith." In Lynch v. Partridge (1901) 36 Misc. 302, 73 N. Y. Supp. 469, Justice Andrews considered this constitutional prohibition with reference to the action of the superintendent of public works under the authority of Laws 1901, chap. 645, in closing up the north side cut of the Oswego canal at Syracuse. Justice Andrews made some observations which were not only pertinent to the question then under consideration, but are pertinent under the barge canal act of 1903. "The Constitution," he said, "does not protect, and was not intended to protect, the Oswego canal in the precise form and in the precise condition in which it existed at the time the Constitution was adopted. It would not prevent the narrowing of the prism at this or that point, if such a course were deemed advisable. It would not prevent a change of route and the sale or lease of the former channel. It would not prevent the sale of a feeder which had become useless. The object was not to preserve intact every side cut, every dock basin, every widening of the canal. Such accessories did not constitute 'the Oswego canal' as the phrase is used in the Constitution. They are merely accessories and appurtenances, connected with the canal, it is true, but not actually necessary to its use." Referring to the foregoing definition in the canal law, Justice Andrews says it is "a description of the canals for administrative purposes, and is intended to define what public works of the state shall, for such purpose, be classified with canals;" but it is of no assistance in determining the meaning of the language used in the Constitution. In McCarty v. New York C. & H. R. R. Co. (1902) 73 App. Div. 34, 76 N. Y. Supp. 321, the court had occasion to consider the status of a railroad built on canal land in Syracuse. It did not appear by what authority the railroad had been built on canal land, but it had been there many years. The court say that "while the Constitution prohibits the legislature from selling or leasing the Erie canal, . . . yet the superintendent of public works is given supervisory power over these lands, and of any railroad within ten rods of the canal 'to preserve the free and perfect use' of the canal, . which implies that a license or privilege may be accorded to a railroad company to construct its tracks and operate its cars within the blue line, but under the direction of the state authorities."" Questions relating to the disposition of abandoned canal Lands and to the acquisition of such lands by the state are considered in De Witt v. Elmira Transfer R. Co. (1892) 134 N. Y. 495, 32 N. E 42; Eldridge v. Binghamton (1890) 120 N. Y. 309, 24 N. E. 462; Burbank v. Fay (1871) 5 Lans. 397; Waller v. State (1895) 144 N. Y. 579, 39 N. E. 680, but they have no special bearing on the constitutional prohibition against disposing of the canals. 89. [Tolls prohibited; contracts.]-No tolls shall hereafter be imposed on persons or property transported on the canals, but all boats navigating the canals, and the owners and masters thereof, shall be subject to such laws and regulations as have been or may hereafter be enacted concerning the navigation of the canals. The legislature shall annually, by equitable taxes, make provision for the expenses of the superintendence and repairs of the canals. All contracts for work or materials on any canal shall be made with the persons who shall offer to do or provide the same at the lowest price, with adequate security for their performance. No extra compensation shall be made to any contractor; but if, from any unforeseen cause, the terms of any contract shall prove to be unjust and oppressive, the canal board may, upon the application of the contractor, cancel such contract. [Const. 1846, art. 7, § 3; Am. 1854; Am. 1874; Am. 1882.] The canal board cannot increase the price fixed by the contract, even if authorized so to do by an act of the legislature. People ex rel. Sherrill v. Canal Board (1871) 4 Lans. 272. The constitutional provision requiring canal contracts to be let to the lowest bidder "is a declaration of a broad and general principle. . . . It is necessary, therefore, that in carrying out this constitutional provision some regulations shall be adopted by which it may be decided, and some tribunal established which may decide, who is the lowest bidder. There must be reposed in some officers of the state a discretion on this subject; and they must apply this constitutional provision in its spirit, not in its letter." People ex rel. Frost v. Fay (1871) 3 Lans. 398, citing People ex rel. Belden v. Contracting Board (1863) 27 N. Y. 378, which construes a similar provision in a statute enacted in 1857, and applies the same rule as to the exercise of discretion in letting canal contracts. The provision relating to the letting of contracts does not prohibit the legislature from relieving a contractor from the effects of a hard bargain with the state, nor from liquidating and paying a just claim upon the state, for damages accruing to a canal contractor in the performance of his contract, under circumstances raising an obligation on the part of the state to pay them. People v. Densmore (1873) 1 Thomp. & C. 280. This provision does not prevent the legislature from modifying the contract, with the consent of the contractor. People ex rel. Wilhams v. Dayton (1874) 55 N. Y. 367; People v. Canal Board (1874) 55 N. Y. 390. It should be observed that these cases were decided before the Constitution was amended prohibiting an allowance of extra compensation to contractors. These amendments were adopted in 1874, and now appear in this section, and also in § 28 of article 3. § 10. [Canal improvement.]-The canals may be improved in such manner as the legislature shall provide by law. A debt may be authorized for that purpose in the mode prescribed by section four of this article, or the cost of such improvement may be defrayed by the appropriation of funds from the state treasury, or by equitable annual tax. [New.] At the November election in 1895 the people approved an act, chap. 79, authorizing the expenditure of $9,000,ooo for the improvement of the canals. Questions relating to this expenditure were considered in Baker v. State (1902) 77 App. Div. 528, 78 N. Y. Supp. 922, which has been cited under § 4 of this article. The people again, in 1903, approved a law authorizing the expenditure of $101,000,000 for canal improvement, embodying a plan for a barge canal. The origin of this section will be found in the history of the Convention of 1894, in the third volume. |