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And be it further resolved, That the superintendent of public works be and he hereby is directed to serve a copy of this resolution upon the said lessees, their successors or assigns.”

It further appears from affidavits transmitted that copies of this resolution were served upon the lessees, their successors or assigns, as directed therein.

As stated in your letter, "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.”

In my opinion the State canal board, assuming that the existing water-power rights or privileges in question had been properly extinguished by the proceedings indicated in its resolution of November 22, 1910, could not by attempting to rescind such action after it had been accepted and acted upon by the Federal Government, as stated by you, prevent the act of Congress authorizing the improvement of the river from becoming operative. The conditions specified in the act of Congress as to the extinguishment of such rights or privileges having been met, it was beyond the power of the State thereafter 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.

It is to be observed that the action of the canal board purports to have been taken pursuant to chapter 147 of the laws of the State as amended, directing the improvement of that portion of the State canal system which lies in the thread of the Hudson River from Congress Street in the city of Troy to Waterford (1 Consolidated Laws of New York, pp. 521, et seq.), and which, it is understood, includes the portion of the river covered by the congressional improvement.

The Chief of Engineers in his report to the Secretary of War of January 15, 1907, in regard to the extension of the then existing project for the improvement of the Hudson River to Waterford, said (H. Doc. No. 539, 59th Cong., 2d sess.):

“Hudson River is at present being improved by the United States under a project which provides for securing a channel depth of 12 feet up to the State dam at Troy. In connection with this dam there is a lock operated by the State of New York, which has a depth of less than 5 feet over the lower miter sill. Above the dam there is slack water with a navigable depth of about 10 feet for a distance of 2.6 miles to the mouth of the fourth branch of the Mohawk River at Waterford, at which point there is at present a connection with the Champlain Canal, and where the barge canal being constructed by the State to replace the old Erie Canal will leave the Hudson River.

“The improvement now proposed is the extension by the United States of the 12-foot project from its present terminus at the State dam to the town of Waterford. The works necessary consist of a new lock and dam to replace the existing State structures, and of certain excavation to project dimensions both above and below the dam. In his report of December 28, 1906, Col. Lockwood presents alternative estimates of $934,900 and $1,124,100 as the cost of constructing the proposed channel on the east and west sides of the river, respectively.

“For the reasons given in its final report of the 7th instant, also herewith, the Board of Engineers for Rivers and Harbors concurs in the opinion of the district officer that the location of the new channel on the west shore of the river has advantages in its favor sufficient to justify its selection, even at the estimated additional cost. The board believes that the cost of this improvement is reasonable when compared with the benefits which may be expected to result therefrom and that it is advisable to extend the existing project in accordance with the plan proposed.

“The work contemplated in these reports is entirely feasible from an engineering standpoint. It forms a part

of the work proposed by the State of New York for its enlarged barge canal, and is included by the State engineer and surveyor in his estimate for the canal. In its relation to the New York barge canal it is in a position which resembles, in a certain degree, that of the enlargement of Black Rock Harbor at the other end of the canal. This enlargement is also included in the estimate of the State engineer and surveyor alluded to above. In both cases the idea is expressed that if the work is not undertaken by the United States Government it will have to be done by the State of New York."

By the amendment to chapter 147 of the laws of 1903 made by chapter 494 of the laws of 1907 (1 Consolidated Laws of New York, p. 533) the legislature has provided that

“The waters, surplus or otherwise, created or impounded as a result of the improvement of the Erie, Champlain and Oswego canals, pursuant to the provisions of this act, or from the construction of any dam or dams, mole or moles, reservoir or reservoirs, or other structures, connected therewith, shall not be leased, sold or otherwise disposed of, until the improvement of said canals as contemplated in this act, and amendments thereto, shall have been finally completed, nor thereafter until authorized by statute setting forth specific terms, conditions and restrictions governing the same.”

The constitution of the State of New York, section 8 of article 7, provides that “the legislature shall not sell, lease or otherwise dispose of the Erie Canal, * * *

but they [it] shall remain the property of the State and under its management forever.''

The fact that the water power created by the construction of a new lock and dam by the United States would belong to the United States (Green Bay and Mississippi Canal Co. v. Patten Paper Co., 172 U. S. 58), and that the construction of the new lock and dam by the United States would divest the State of jurisdiction over that portion of the canal, appear to have actuated the State canal board in attempting to rescind its resolution of November

22, 1910. Thus, the rescinding resolution of April 28, 1911, according to the copy transmitted, states:

“Whereas, it is the policy of this State to conserve its natural resources and develop them for the benefit of the people, and

“Whereas it may be claimed that the above resolution may interfere with such policy and permit the use of such water by some other agency than the State, and may remove from the jurisdiction of the State of New York an integral part of the canal system of the State, and

“It being considered that such an abandonment is neither expedient, desirable, nor economical,

“Therefore be it resolved, that the resolution above mentioned, adopted November 22nd, 1910, be, and the same is hereby, rescinded, * * *."

That the State canal board had authority to abandon the State lock and dam and authorize their destruction in furtherance of the improvement authorized by the State would seem to be unquestioned. But whether it could do so in anticipation of, and for the purpose of giving effect to, the improvement authorized by Congress, which would result in Federal control over that portion of the Hudson occupied by the new lock and dam, and used as a portion of the State canal, is more doubtful. The State might perhaps do it, notwithstanding the constitutional provision referred to, in view of the fact that this portion of the canal is in a navigable waterway of the United States, and therefore not subject to absolute ownership by the State, but necessarily under Federal jurisdiction whenever Congress chose to exercise it. But the canal board does not possess legislative power, and can only do that which it is authorized by the legislature to do.

The action indicated in the resolution of the canal board of November 22, 1910, may, however, be good as an extinguishment of the existing leases and a resumption of the surplus water created by the State lock and dam, although not as an abandonment of those structures. The condition of the action of Congress is that all existing power rights and privileges affected by the improvement authorized be extinguished. This, it was supposed, would be

effected by the abandonment of the State lock and dam by the canal board, but if otherwise effected, the condition would be substantially met. The idea seems to have been to relieve the Federal Government of any possible claim for damages arising out of the destruction of the State lock and dam. The fear seems to have been an idle one, in view of the paramount control of Congress over the Hudson River as a navigable waterway of the United States, and the fact that the rights and privileges referred to were, both in terms and as a matter of constitutional law, dependent upon the maintenance of the State lock and dam, which Congress could declare an obstruction to navigation and require the State to remove it at its own expense (Monongahela Navigation Co. v. The United States, 148 U. S. 312, 336; West Chicago Street Railroad Co. v. Chicago, 201 U. S. 506; Union Bridge Co. v. The United States, 204 U. S. 364; Monongahela Bridge Co. v. The United States, 216 U. S. 177). But however that may be, Congress did not choose to exert its whole power, but made the expenditure of the appropriation for the improvement authorized dependent upon the extinguishment by the State of the power rights or privileges affected thereby.

I understand that you do not wish to antagonize the State authorities in this matter, who have indicated that they prefer themselves to construct that part of the proposed improvement which involves the construction of a new lock and dam and the destruction of the present lock and dam, in order to retain jurisdiction and control over the same in the State; that your purpose is to submit this matter to Congress, and that you are now concerned only with the validity of the contracts which have been let for the construction of the work involved in the improvement authorized not dependent upon the construction of the new lock and dam or the destruction of the State lock and dam, and the legality of the expenditures already made, these contracts and the expenditures having been made upon the faith of the action taken by the State canal board in its resolution of November 22, 1910.

Under the circumstances stated, and in view of the fact that the action indicated in the resolution of the State

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