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remission of refund of fines, penalties, forfeitures * incurred for violating any provision of law relating to vessels” are transferred to and conferred upon you, but it should be noted that such transfer is to take effect "from and after the time of the transfer” of the bureaus and offices which are therein expressly transferred to your department. As above stated, the Public Health and Marine-Hospital Service is not so transferred. Considering the various provisions of the act in relation to each other, and applying the well-known rule that a particular case may be within the letter of the statute and yet not within the intention of the lawmaker, it is my opinion that authority to remit this penalty or forfeiture has not been conferred upon you, and you are so advised. Respectfully,
GEORGE W. WICKERSHAM. THE SECRETARY OF COMMERCE AND LABOR.
CONSTRUCTION OF NEW LOCK AND DAM AT TROY, N. Y. The appropriation in the river and harbor act of June 25, 1910 (36 Stat.
635), for improving the Hudson River, which contemplated the construction of a new lock and dam in the vicinity of Troy and the removal of the State dam, was conditioned upon the extinguishment by the State of all existing power rights or privileges affected by the improvement, and after the existing power rights and privileges in question had been extinguished by the State canal board it was beyond the power of the State to interfere with the improvement authorized, in view of the paramount control of Congress over the Hudson River as a navigable waterway of the United States.
DEPARTMENT OF JUSTICE,
July 3, 1911. Sir: The river and harbor act, approved June 25, 1910 (36 Stat. 635–636), contains the following provision:
“Improving Hudson River, New York: For maintenance and continuing improvement in accordance with the report submitted in House Document Numbered Seven hundred and nineteen, Sixty-first Congress, second session, and with a view to completing said improvement within a period of four years, one million three hundred and fifty
thousand dollars: Provided, That the expenditure of the amounts herein and hereafter appropriated for said improvement shall be subject to the conditions set forth in said document: Provided further, That the general plan for the improvement presented in said document shall be subject to such modification as to the location of the dam and in matters of detail as may be recommended b; the Chief of Engineers and approved by the Secretary of War.”
In your letter of May 25, 1911, referring to the report of the engineer officers of the War Department embodied in House Document No. 719, you say:
“The plan submitted in said report contemplated the construction of a new lock and dam in the vicinity of Troy, N. Y., about 1,400 feet north of the State dam, the removal of said State dam, and the continuation of the channel from deep water in the lower river through said State dam to Waterford, it being stated in said report that ‘it is advisable for the General Government to undertake the improvement of the Hudson River from deep water up to Waterford, provided all existing power rights or privileges affected by the improvement are extinguished by the State of New York,' etc.
“After the passage of the act, when it became apparent that the prosecution of the work would be facilitated by the immediate abandonment of the State lock and dam, the matter was brought to the attention of the governor of New York by War Department indorsement of August 5, 1910, on Engineer Department letter of August 4, 1910. In response to this communication the State canal board, at a meeting held on November 22, 1910, passed a resolution formally abandoning the State lock and dam and authorizing their destruction—this abandonment being understood to include the extinguishment of the existing power rights and privileges connected with said dam. Subsequent to the passage of this resolution the State board of public works transmitted to the Secretary of War a copy of the same and advised him that possession might be taken of the structures at any time, and that the water rights at either end of the dam had been canceled. Thereupon the Engineer Department proceeded with the necessary
preliminary operations, involving the expenditure of considerable sums of money, and entered into a contract for dredging and rock excavation covering nearly $300,000 worth of work, to be commenced during the present month.
“After these expenditures and the execution of said contract, the governor of New York presented a resolution of the State canal board, approved April 28, 1911, rescinding the aforesaid resolution of November 22, 1910, abandoning the lock and dam-indicating an intention to retain the control of these structures and requesting the War Department to amend the adopted project for the improvement of the river.
“As a result of this attitude on the part of the State authorities, a conference was held in Albany on May 9, 1911, with the governor, the attorney general, and the State engineer of the State of New York, at which Col. W. M. Black, the local engineer officer, who represented the United States at the conference, was requested to submit, for the views of the War Department, certain questions, which are substantially the first three questions hereinafter submitted for your opinion. If the expenditure of the entire appropriation is conditioned upon the consent of the State to the destruction of the State dam and the extinguishment of the power rights now existing at said dam, it will appear that the withdrawal of the consent heretofore given, if operative, places the War Department in an embarrassing position, since considerable expenditures have been made and a contract let on the faith of such consent."
Upon this state of facts you request my opinion on the following questions:
“ (1) Whether the portion of the appropriation made by the act of June 25, 1910, which is to be expended otherwise than in the construction of the proposed lock and dam, may be expended without the consent of the State of New York to the removal of the present dam.
“(2) Whether any portion of the appropriation is available for expenditure without the extinction of the power rights now existing at said dam and referred to in the report mentioned in the appropriation.
“(3) Whether, if the United States should build the proposed dam, as authorized by the act of Congress, and thereby create water power, the water power so created belongs to the United States.
“(4) Whether, in view of the fact that the State gave its consent to the abandonment and destruction of the State dam at Troy, by resolution of the State canal board of November 22, 1910, and provided, it is understood, for the extinction of the water rights connected therewith, together with the fact that the United States has
proceeded on the faith of such action on the part of the State authorities with the work of the improvement, it would be competent for the State authorities to rescind such action, or whether the resolution of April 28, 1911, should not be regarded as inoperative to accomplish its purpose.”
It appears from House Document No. 719 that the Federal Government has for some years past been engaged in deepening and widening the channel of the Hudson River in this vicinity, several million dollars having already been expended for the work under appropriations by Congress, and that the work authorized by the act of June 25, 1910, is in the nature of an enlargement of the former project, which did not, however, include the removal of the present State dam and the construction of a new dam. It also appears from such reports that the present plan contemplates a further deepening of the channel of the river beyond that authorized by the former project.
In the report of the Chief of Engineers embodied in House Document No. 719, it is said:
“The plan submitted contemplates the construction of a new lock and dam in the vicinity of Troy about 1,400 feet north of the existing State lock and dam, which will be removed, and the excavation of a channel from deep water in the lower river to Waterford 12 feet deep at all stages. Below Troy the general width of the channel is to be 400 feet, except at Albany, where it widens into a basin. In the vicinity of Troy the width above the dam is to be 200 feet, widening into a basin just below the dam. For a short distance below this basin there will be a double channel, one on either side of Adams Island, with widths,
respectively, of 150 and 200 feet. Between the Delaware and the Hudson and Congress Street Bridges the width is to be 500 feet, below which it narrows to the proposed general width of 400 feet.
“This work will extend nearly as far south as Hudson, and includes dredging, rock excavation, construction of a lock, dam, and mooring piers, and removal of the old lock and dam, all at an estimated cost of $5,186,064. The district officer considers the improvement worthy of being undertaken by the United States, and states that if the project is approved and work authorized provision should be made for executing it under the continuing contract system, the amount required for the lock and dam to be provided by a cash appropriation of $300,000, and the balance to be made available within two years in order to insure completion within three working seasons.
An initial appropriation of $1,000,000 is required for the work below the dam.
“These reports have been considered by the Board of Engineers for Rivers and Harbors, and in its opinion it is advisable for the General Government to undertake the improvement of the Hudson River from deep water up to Waterford, provided all existing water-power rights or privileges affected by the improvement are extinguished by the State of New York, it being understood, however, that both plans and estimates are general in character and require further careful study, particularly with reference to the low-water plane and its bearing upon the elevation of the lower sill of the lock. The board further states that the cost of maintenance of this improvement will probably not be excessive.
“If it be the policy of Congress to make the connection of the navigable channel of the Hudson River with the State canal by extending the former channel through and above the State dam at Troy, and by the construction of a new lock and dam, I agree with the district officer, who is also division engineer, and with the Board of Engineers for Rivers and Harbors that Hudson River is worthy of improvement in this connection at the cost specified.