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The work is under contract and in progress.

Item No. 35. "For the removal, replacement, and repair of
the bridge on Ohio Street, over the Clark and Skinner Canal,
the sum of nine hundred dollars, or so much thereof as may be
necessary."

I object to this item. This work was let Oct. 14, 1873, but
nothing whatever has been done under the contract. The
necessity for the work does not seem, therefore, to be pressing.

Item No. 36. " For repair and construction of docking on the
Clark and Skinner Canal, the sum of $917.85."

The parties interested should have paid the whole or part of
the expense of this work ; but the contract has been made, the
work nearly completed, and most of the money drawn.

Item No. 37. " To pay the town of Pittsford four hundred
dollars, and the town of Brighton six hundred dollars, or so- much
thereof as may be necessary for damages caused by water flowing
from the side cuts in the Erie Canal during the freshets of the
spring of 1873."

These sums have been paid by the checks of the commis-
sioner instead of drafts upon the auditor, and therefore results
this apparent balance.



I87S-] VETO-MESSAGES IN 1S75. 183

Items Nos. 38 and 39. "For aiding in the construction of a
bridge over the Genesee Biver, at Mount Morris, used as tow-path
of the canal, three thousand dollars, or so much thereof as may
be necessary."

" For constructing one hundred feet of vertical wall on the
berme side of the Erie Canal, in the village of Pittsford, in front
of Eckler's warehouse, coal and lumber yard, commencing at the
east end of the vertical wall, already built, the sum of $313."

The first of these items has been expended since the Bill was
drawn, and the sum mentioned in the other has been nearly
expended.

Section 3 of this Bill reappropriates the balance remaining
unexpended June 11, 1875, of 8579,164.72, appropriated by
Chapter 708 of the Laws of 1873, for the payment of canal
awards, and for other purposes, to the payment of the principal
and interest of such awards or such sums as may be awarded
in lieu thereof, upon an appeal or rehearing. This balance is
stated at $40,909.20, and is not, as might be supposed, the
balance of the original appropriation after deducting the sums
paid thereout, but is made up of the aggregate of the original
unpaid awards, with the interest upon each for two years. The
sum necessary to meet unpaid awards is therefore estimated
somewhat arbitrarily ; but as it cannot be known whether the
awards will be increased or decreased upon an appeal or re-
hearing, there may be no better system.

Section 4 of the Bill reappropriates the balance of 8413,755.51,
appropriated by Chapter 643 of the Laws of 1873, being the
sum of $61,955.16 to the following purposes :

1. For work done in Oneida Lake Canal prior to May 29, 1873,
$16,769.38.

2. To pay awards made in 1870 and 1871, or such sums as may
be awarded in lieu thereof upon appeal or re-hearing, $45,185.78.

The first of these items is for the work mentioned in Item
No. 22 of Section 2. The second item is made up in the same
manner as the sum appropriated by the last section.



184 THE WORKS OF SAMUEL J. TILDEN. [1875.

Section 5 reappropriates thirty thousand dollars originally
appropriated for work on the Genesee Valley Canal, but
remaining unexpended, to pay the balance of the expense of
doubling the locks in the Western Division of the Erie Canal.

1. This Bill consists of forty-three items. It originally passed
General consid- m a ^ cw general clauses. The Governor objected
ap^ropriadon'mi that the Constitution requires that the objects

for extraordinary an( j amou nts should be specified ; that the appro-
work and repairs

on the canals. priations having been once made in detail, they
could not be grouped in masses in a reappropriation. He re-
ferred to the following provision of the Constitution :

" ISTo moneys shall ever be paid out of the treasury of this State,
or any of its funds, or any of the funds under its management,
except in pursuance of an appropriation by law, nor unless such
payment be made within two years next after the passage of
such appropriation act ; and every such law making a new appro-
priation, or continuing or reviving an appropriation, shall distinctly
specify the sum appropriated and the object to which it is to be
applied ; and it shall not be sufficient for such law to refer to any
other law to fix such sum." l

He also referred to the amendment adopted in 1874, which
requires the Governor to act separately on each item of appro-
priation bills, which would be defeated by grouping numerous
items together. The Bill was recalled by a joint resolution of
the two Houses, and passed in its present form.

2. The clause cited of the Constitution requires, after the
lapse of two years, a re-enactment of an appropriation as fully
as if it had never been made. Its object was to end the sys-
tem of permanent standing appropriations, which would con-
tinue indefinitely unless repealed by affirmative legislation,
and to command a periodical revisal of all appropriations and
an affirmative renewal of such as were to be continued. It
prohibits the revival of an appropriation by a reference to any
former act, or the fixing the amount or the object by such a
reference. It is designed to recall into the treasury unex-

1 Constitution, Section 8 of Article VII.



1875.] VETO-MESSAGES IN 1875. 185

pended balances, which would grow to fill the nooks and cor-
ners of the public offices charged with expenditures. The
practice of the Legislature and of the departments has for
years been in accord with the present Bill as originally drawn,
and has practically nullified this salutary provision of the Con-
stitution. This most useful protection of the State treasury
should be restored.

3. In acting on these items it has been impossible to extend
the examination into any question concerning the pending
contracts, or whether or not there be any public necessity or
equitable grounds for interfering with them. The Bill operates
simply to continue a provision for money for paying for the
work now going on, in the event that such payments shall
become necessary ; it does not adopt or ratify such contracts.
The questions in respect to them remain properly to be looked
into by the fiscal officer of the State having charge of the canal
expenditures. In the limited time which could be allotted to
this Bill, it was difficult to carry the investigation as far as
it has gone, and impossible to carry that investigation any
farther.

4. The Reappropriation Act of 1874 (Chapter 392, Laws
of 1874) appropriated in three clauses,

1. Unexpended balance of $2,180,656, appropriated

in 1870, and re appropriated in 1872 $201,855.09

2. Unexpended balance of $1,425,590.88, appropriated

in 1872 467,299.67

3. Unexpended balance of $1,011,138.42 appropriated
in 1870, and re appropriated in 1872, to pay canal

awards 208,224.87

$877,379.63
Add by Chapter 11 of Laws of 1874 40,000.00

Total reappropriations $917,379.63

The Act of 1875, in forty-three items, reappropriates . 407,844.88
Of which the items objected to amount to .... 67,765.69

Balance $340,079.19



186 THE WORKS OF SAMUEL J. TILDEN. [1875.

This sum will form no tax or charge on the present year,
having been received from the taxes of former years. The
result is,

1874 $917,319.63

1875 340,079.19

Diminution of reappropriations 3577,240.44

Money reclaimed into the treasury 67,765.69

Excepting the items objected to, the other portions of the
Bill are
Approved, June 16, 1875.



Assembly Bill No. 560, entitled, " An Act to authorize the con-
struction of work upon the canals of this State"

Not approved. This Bill was originally entitled, "An Act
to authorize a tax of three fifths of a mill per dollar of valua-
tion of the year 1875 for the construction of new work upon
and extraordinary repairs of the canals of this State." Not
only was the title changed, but everything of the original Bill
except the enacting clause was stricken out, and the provisions
of the present Bill substituted. As it now stands, the Bill
provides for the expenditure of forty-one different sums of
money for the objects and purposes in the several items speci-
fied. It commands that those payments shall be made " out
of the gross receipts of the canals for the fiscal year com-
mencing Oct. 1, 1875." No other means of payment arc
provided. The clause imposing a tax is omitted.

This revolution in the structure, nature, and effect of the
Bill has given rise to difficulties evidently not contemplated
by its framers. All the items of expenditure are either for
objects known in our canal legislation as ordinary repairs, or
for objects known as extraordinary repairs, including payments
for past work.



1875.] VETO-MESSAGES IN 1875. 187

The items for ordinary repairs are unnecessary. The Ap-
propriation Bill for those purposes provides Unnece5
$1,259,150; it had been cut down to 11,109,150. ordinary repairs.
A separate item of 8150,000 was added "a further sum,"
as the Bill states, " or so much thereof as may be necessary
for re-trunking the upper and lower Mohawk Aqueduct, and
concreting and otherwise repairing the sixteen locks in the
Eastern Division of the Erie Canal."

I obtained the best information I could as to this proposed
work, and came to the conclusion that a much smaller expen-
diture, which could be made out of ordinary repairs, would be
sufficient for the present ; but the Commissioner felt so much
anxiety in respect to these important structures, and I had
such reliance on his prudence and economy in using only so
much of the fund provided as should be necessary, that I
yielded my judgment to his wishes, and abstained from strik-
ing out this item. It left the Ordinary Repair Bill larger in
amount than in my opinion would be sufficient, if wisely and
faithfully expended, to keep the canals in good condition, and
even to increase their efficiency, for the fiscal year from Oct. 1,
1875, to Sept. 30,1876. I do not think, therefore, that the
outlay for ordinary repairs ought to be extended by a second
Bill for the purposes amply provided for in the first Bill. My
views on this subject were expressed in the following passage
of the Special Message of March 18, 1875 :

"In respect to ordinary expenses and repairs to the canals
which are to be retained as the property of the State, I recur to
the suggestion which I had the honor to submit in the Annual
Message,

" ' Ordinary repairs should be scrutinized with a view to re-
trenching their costs, and to obtaining the largest possible results
from the outlay.'

" In the present state of the prices of materials and the wages
of labor, if the public officers can be inspired with a resolute pur-
pose to make every expenditure for these objects effective, there
ought to be no difficulty in reducing the appropriations from one
quarter to one third below the amount provided for last year. The



188 THE WORKS OF SAMUEL J. TILDEN. [1875.

present standard of repair and efficiency must be fully maintained.
Everything of good administration consists in the selection of the
most necessary and useful objects of expenditure, and in securing
the greatest effectiveness in the application of labor and the most
advantageous purchase of materials.

"If a sense of accountability and a determination to accomplish
this result can be diffused throughout the agents employed in the
public service, this object will be easily and certainly attained."

There is not the least risk of harm to the interests of the
State, even if any extraordinary emergency should happen
requiring a larger provision for ordinary repairs. The expen-
ditures under these appropriations do not begin until October 1.
They include but two months of navigation out of the seven
which form the fiscal year. On the opening of the canals in
May, 1876, according to the usual experience, about one half
of the provision for the ordinary repairs will remain unex-
pended. In the mean time another session of the Legislature
will have been held for at least four months, and there will
have been ample opportunity to provide for any contingency
now unforeseen.

The items which are in the nature of extraordinary repairs,
Unconstitutional and the few other items which provide for the

as extraordinary . .

repairs. payment ol money to individuals, are subject to

a more grave and an insurmountable objection. They are, in
terms, a plain violation of the Constitution ; they are in
direct conflict with its provisions for the sinking funds to pay
the canal debts, and would be a breach of the faith of the
State. The Constitution (Article VII.), after providing for
" the expenses of collection, superintendence, and ordinary
repairs," appropriates the revenues of the canals to the
amount limited to the sinking funds created by that instru-
ment. It admits in priority " collection, superintendence,
and ordinary repairs." It excludes extraordinary repairs.
It excludes all payments for any other than the specified
objects. It may be suggested that this Bill should be con-
strued as if it had read that these payments shall be made



IS75-] VETO-MESSAGES IN 1875. 189

out of any surplus that may exist of " the gross revenues of
the canals," after the payments into the sinking fund shall
have been made. The answers to this suggestion are : -

1. The Bill would then be completely illusory and decep-
tive, and would lead to mischiefs to the private

parties depending on it and to the State. It is
not within the range of possibility that the canal revenues
for the fiscal year 1875-1876 shall be equal to the legislative
appropriations for collection, superintendence, and ordinary
repairs, and the constitutional appropriations for the sinking
funds. There will be no surplus out of which any payments
can be made. All provisions contemplating such surplus will
be a mere sham.

Such a device is objectionable in every aspect. It tends to
induce private parties interested in the expenditures to press
them in indirect and illegal forms, to obtain advances from
innocent parties on the pretended obligations of the State,
and will be fruitful of future claims for indemnity. It tends
to induce the public officers to aid in illegal expenditures, not
on a special public emergency, but as an ordinary practice,
and to create a quasi debt against the State where the

Constitution expressly prohibits even the Legislature from



authorizing any real debt.

2. The language of the Bill clearly contradicts any such con-
struction. The payments are directed to be made " out of the
gross receipts of the canals." They authorize the money to be
taken for their payments before the payments into the sinking
funds. They exclude any idea of waiting for a surplus.

The Canal Auditor would undoubtedly refuse to make these
payments according to the terms of the Bill.

r J . Void.

But the Legislature ought not to create a neces-
sity for him to import into the Bill language which they have
not chosen to put there, or to require him to make payments
which the Constitution forbids. It ought not to enact as a
law what, by its manifest import, is a violation of the funda-
mental law.



190 THE WORKS OF SAMUEL J. TILDEN. [1875.

The Constitution of 1846 had its origin in the purpose of the
people to limit the creation of State debts. In whatever other
particulars it may have failed to answer the objects of good
government, the infinite value of its restraints on the creation
of debts during the last fifteen years cannot be questioned.
Except for these restraints we should now, in all human
probability, be groaning under the burden of some hundreds
of millions of State debts.

Extreme ingenuity has been employed in circumventing those
restraints. In many smaller particulars the scheme of the
Constitution has been defeated ; but in the main it has stood
a shield of protection and safety to the people. As far as can
be done, step by step, we must restore the rightful operation
of these beneficent provisions. We must stand by the true
interpretation of their meaning. We must obey them in spirit
as well as in letter. We must discard all false practices which
have overgrown the true system of sound finance established
by the Constitution.

The practical difficulties of giving effect to a reform in the
Obstacles to system of canal appropriations and canal expen-
ditures are very great. The existing practices
are the growth of many years. Numerous contracts for all
kinds of work, on every part of the nine hundred miles of
canal, were in existence, and were in every stage of progress.
Many forms of liability existed for work partially done, on
which certificates had been issued. Claims for damages were
in every condition, from their origin to the awards by the State
officers and appeals therefrom. The habit had grown up, both
on the part of those who represent the State and those who
deal with the State, of paying very little attention to the Con-
stitution or the laws, in the contracts which are made, and
in the doing of work. Modes of obtaining money, where
work had been sanctioned by some act of the Legislature
or some act of public officers, without any appropriation or
without sufficient appropriation to pay for it, had become cus-
tomary. Notwithstanding that the Constitution prohibits the



1875.] VETO-MESSAGES IN 1875. 191

legislative power from contracting any debt except in the spe-
cific mode provided, by submission to a vote of the people, it
has become usual to issue certificates for work outside of all
appropriations or lawful means of payment, as if these certifi-
cates could create an obligation on the part of the State. It
had become usual to do so in many cases where no public offi-
cer had any authority to create such an obligation ; and these
certificates were habitually accepted by banks and private
parties as the basis of loans of money, or were purchased
as investments.

The clause of the Constitution which provides for elasticity
in the finance system, to the extent of one million of dollars,
" to meet casual deficits or failures in revenues, or for expenses
not provided for," and which was intended to be used in
emergencies, and to be replaced immediately afterward, was
speedily exhausted by permanent loans. Every sort of device
has been since resorted to to supply the defect.

To change the existing systems, to cut off the fungus-growth

of unconstitutional and illegal, of loose and improvident prac-

f

tices without impairing the efficiency of public works and
without unnecessary harshness to individuals, was a matter
of great difficulty. To make investigations in particular cases
so thorough and so conclusive that they could be the basis of
action in reference to existing contracts or work partially com-
pleted, was impossible before the legislation proposed must
necessarily be acted on.

Of the Bills that have come before me for action, several
deserve some mention.

1. THE TAX AND APPROPRIATION FOR THE PAYMENT OP

*

PRINCIPAL AND INTEREST OF THE CANAL DEBT.

The Bill for this purpose, as prepared by the fiscal officers
of the State, and enacted by the Senate and Assembly, received
my signature.



192 THE WORKS OF SAMUEL J. TILDEN. [1875.

2. TAX TO PAY THE FLOATING CANAL DEBT.

This provision in the law imposing the State taxes was for a
debt existing as early as 1859, which will be extinguished dur-
ing the present year. The tax for that purpose in 1874 was one
tenth of a mill, or $216,930.79. The tax for the same purpose
for this present year is one eighth of a mill, or $271,163.49.
The increase is 854,239.70.

3. CANAL AWARDS AND CERTIFICATES OF INDEBTEDNESS.

This Act is Chapter 263, and is entitled " An Act to authorize
a tax of one fifth of a mill per dollar of valuation for the pay-
ment of awards of the Canal Appraisers, of the Canal Board,
and of the Board of Canal Commissioners, and to pay the cer-
tificates of indebtedness and interest now outstanding." It is
substantially the same as Chapter 462 of the Laws of 1874,
and bears the same title. In the main, both of these Bills pro-
vide for the payment, as they become payable, of the awards
of the canal appraisers, or other canal officers specially
charged with the duties of making awards. The canal ap-
praisers usually issue certificates for the awards made by them
in a semi-negotiable form. They are the agents of the State,
and form the tribunal instituted by the State for the decision
of the controversies submitted to them.

Notwithstanding the great suspicion that has attended cases
in which such awards are made, it was obviously impossible
for me, during the ten days in which the Bill was in my hands,
with the best help I could obtain, and probably it would be
impossible in a longer time, to get information which would
justify me in attempting to re-try these cases, which had
been adjudicated by the lawful tribunal, or would justify me
in vetoing a Bill providing the means to pay these awards
next year, if, in the mean time, no grounds should appear for
withholding or resisting such payments.

These Bills contain another item, which is the result of a
practice very objectionable. About one fourth of the funds



1875.] VETO-MESSAGES IN 1875. 193

provided by the Act of the present year is for the payment
of certificates outstanding in a semi-negotiable form, for work
done in excess of the appropriations for the payment of such
work.

The Appropriation Bills of 1874 and several years previous,
under which this work was done and these certificates issued,
contain an express prohibition of the letting of contracts for
any amount beyond the appropriation. The provision is in the
following words : " No more money shall be* expended on the
works hereinbefore enumerated than is above appropriated ;
and it shall not be lawful for officers having in charge the
execution of the said works to make any contracts whereby
any expenditure in excess of the appropriation will be in-
curred, or any further appropriation for the same rendered
necessary."

Notwithstanding these prohibitions, the public officers go on
with work in excess of appropriation ; and every year a Bill is
introduced into the Legislature, providing for the payment of
certificates of indebtedness assumed to be issued in behalf of
the State for work done in excess of any appropriation, and
expressly prohibited by the Appropriation Acts. And the pub-
lic have been in the habit of accepting these certificates as
if they were regular and legitimate issues of obligations of the
State. Banks advance money on them, and private parties
purchase them and hold them as investments.

The State, doubtless, by the exercise of its legislative power,
has authority which no municipal or other inferior officer
would have to provide for the payment of such certificates
on its general view of equity applicable to the case. Indeed,
as the State has that quality of sovereignty that makes it
incapable of being sued, it can be under no obligation except
that of an equitable nature. While it may be admitted that
a special case may sometimes occur in which the public good
may require an expenditure to be made outside of the laws,
in the confidence that the State will afterward legalize, pro-
tect, and pay it, the existence of a common practice, an

VOL. II. 13



194 THE WORKS OF SAMUEL J. TILDEN. [1875.

established habit, by which the public officers transcend their
powers, disregard the salutary restrictions of the laws and
the Constitution, and issue pretended obligations of the State,
cannot but be regarded as extremely objectionable.

It was quite impossible, while this Bill was pending before
me, to inquire into the equities attaching to such certificates
in their origin or in their transfer as they passed to the
pledgees or to the new owners in the course of business. I
therefore, not without some reluctance at any sanction of
such a system, and not without much distrust of awards of
which I saw no means of resisting the payment, allowed this
Bill to become a law. If investigation shall disclose anything
to enable the State to withhold payment in such cases, that
defence will be equally available until the tax shall be collected
next year and payments actually made. The Canal Auditor,
while advising the sanction of this Bill, assured me that he
should be vigilant to avail himself of any just ground of pro-
tecting the State from wrong in the premises. My conclusion,
therefore, was to content myself with calling the attention of



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