On the trial of said cause the defendant introduced in evidence the map of that portion of the Erie canal which embraces the Chittenango feeder, and also called and had sworn the surveyor who had been employed by the State to make the surveys and construct the said maps. From the testimony of this witness, a certified copy of which the committee have seen and examined, and which is hereto annexed, it is shown that the waters of the west branch of the Chittenango creek were never appropriated by the State, or taken for its use, until many years after the petitioner's mill was constructed. The committee are therefore led to believe that both the appraisers and the Canal Board based their decision in the premises upon what they regarded as facts, but which now seem to be fallacies. Under these circumstances they cannot for a moment doubt but that justice, equity and good faith demand that a further hearing should be granted. It is alike due to those who have been led to act from false premises, and to him who, unintentionally, has been made the victim of Your committee would not for light and trivial causes, re-open an investigation which had once been settled according to the forms and usages of law; but being persuaded that this case has been determined under an entire misapprehension of the facts, they do not feel called upon to adopt an iron rule, which might result in the denial of that justice which is due from man

errors.

to man.

The petitioner does not ask to have the case re-opened for the admission of further testimony, except in a single instance, which has since come to light, and which, if true, seems to be conclusive of the whole case. There is very little doubt in the minds of the committee that had the evidence now in existence been brought before the Canal Board when this case was under advisement, it would have affirmed the award of the appraisers, instead of reversing it. Your committee, therefore, ask leave to introduce the following bill:

JAMES C. CURTIS,
G. B. GUINNIP,

E. D. MORGAN.

No. 38.

IN SENATE, FEB. 28, 1851.

REPORTS

Of Mr. JOHNSON, Mr. MANN, and Mr. SCHOONMAKER, on

REPORT OF MR. JOHNSON.

The undersigned, chairman of the select committee, to which was referred the bill entitled "An act to impose tolls upon the New-York and Erie and the Ogdensburgh and the Lake Champlain Railroads,"

REPORTS:

That he has had the same under consideration, and has given the subject that reflection which, in his judgment, the importance of the question demands. It is a subject in which the varied interests of the State are deeply concerned. So long as any considerable portion of the State debt remains unpaid, and the Erie canal enlargement, together with its lateral canals, remain incomplete, it is the duty of the Legislature closely to guard our revenues, and to see that no portion thereof is diverted from the objects to which it legitimately belongs.

By the provisions of the 7th article of the Constitution, if the Erie canal enlargement is ever to be finished, and the Genesee Valley and Black River canals completed, it must be by the surplus revenues of those canals remaining, after setting apart from the aggregate amount [Senate, No. 38.] [u.n.10t.]

1

of tolls received thereon, the several sums directed to be set apart by the first and second sections of the said article. The progress of these works must, necessarily, be slow, under these constitutional restrictions, and the State must suffer considerably in the loss of interest, upon the large sums already expended upon these improvements, from the fact that they cannot be brought into full operation, until the entire work shall have been completed-hence the large amount already expended is, to a great extent useless, as a source of revenue, and so must remain until the work shall be finally accom

plished.

Prudence, therefore, and sound policy, dictate that our resources should be carefully husbanded, and that all our sources of revenue, which are sacredly pledged to the completion of our canals, securely guarded.

If the several railroads, running parallel with our canals, or so near thereto as to divert freight from them, or, are so connected with them by other channels, natural or artificial, as to create such a diversion, it follows, as a matter of course, that to the extent of such diversion, the tolls will be diminished, and the State deprived of a portion of the revenue which it otherwise would and ought to receive.

It is for these reasons that the Legislature has adopted the principle of imposing tolls upon freight transported on certain railroads.

The fact that the central line of railroads, from the Hudson river to Lake Erie, is now required to pay canal tolls to the Commissioners of the Canal Fund, on all the property transported over said roads, except certain articles exempted by a law of the last Legislature, is well understood. The property thus exempted, is "fresh meat, live stock," &c.

These tolls are imposed under a law enacted by the Legislature, after mature deliberation, entitled "An act relating to the transportation of freight on certain railroads," passed May 12, 1847. This act, includes all the companies forming the "central railroad line,” and also the "Oswego and Syracuse railroad."

The 29th section of the act, entitled "An act to authorize the formation of railroad corporations, and to regulate the same," passed

during the last session of the Legislature, provides, that "whenever the railroad of any company, formed under the said act, shall run parallel, or nearly parallel to any canal of this State, and within thirty miles of such canal, the company owning such road shall pay to the Canal Fund, on all property transported upon its railroad, other than the ordinary baggage of passengers, the same tolls upon that portion of the road running parallel to the canal, that would have been payable to the State, if property, other than baggage, had been transported on any such canal."

The section further provides, that such companies shall make return of the property so transported, other than baggage and for the collection of tolls, in all cases where railroads have a tendency to divert freight from the canals.

In considering the bill which has been referred to your committee, the undersigned cannot regard the question of imposing tolls upon railroads as an original question, nor does he believe we should be called upon to justify and sustain, by argument, the right of the State to impose such tolls. The question has already been fully settled by former Legislatures, and has thus far been acquiesced in. That toll may be imposed upon a line of railroads constructed by private enterprise, notwithstanding the terms of their charter may have allowed. them the right of free transportation of freight, without reserving tolls, is, therefore, now no longer, in the opinion of the undersigned, an open question.

It has been said that inasmuch as tolls on freight transported, were not required to be paid by the provisions of the original charters of the Erie railroad, and the Northern railroad, and as their construction was undertaken with no expectation that such tolls would be demanded in the future, the imposition of tolls now, would be unjust.

A careful examination of the subject, will, I think, satisfy any reasonable mind that such an argument is entirely groundless. These charters were granted, subject to the right of the Legislature to alter, modify or amend them, and of course, subject to all such wise and prudential laws as might be enacted for the government of railroads.

There is nothing in those charters that can, by possibility, imply any exemption from the common burthens, or that can justify the dea that these roads are to enjoy advantages denied to others, or

that they have any higher claims upon the Legislature than other competing lines.

Public opinion has fully settled the principle, that laws should be general; that there should be no special privileges conferred upon one class, to the exclusion of others, equally meritorious. The people of this State have recently pronounced their decision in favor of general laws. That decision, is in accordance with the spirit and progress of the age, and manifestly just and right,

Now, let us examine the charters of some of the railroad companies, which by law are required to pay tolls on freight transported over their roads :

The Albany and Schenectady Railroad Company was chartered in 1826; by its charter the company was allowed to transport property but no tolls were required to be paid.

The Troy and Schenectady Railroad Company was chartered by law in the year 1836. By its charter the company was allowed to transport property without payment of tolls.

The Utica and Schenectady Railroad Company was chartered, also by an act of the Legislature, in the year 1833. By its charter the company was prohibited from the transportation of property.

The Syracuse and Utica Railroad Company was chartered by an act of the Legislature, in 1836. That company was allowed, by its charter to transport property, but was required to pay tolls on all property transported, during the season of canal navigation, and when not navigable no tolls were required.

The Auburn and Syracuse Railroad Company was chartered by act of the Legislature, in 1834. By its charter the company was allowed to transport freight, but required to pay tolls.

The Auburn and Rochester Railroad Company was chartered in 1836. By its charter the company was allowed to transport property and no tolls were required.

The Attica and Buffalo Railroad Company was chartered by the Legislature of 1836. By its charter, the company was allowed to transport property and no tolls were required to be paid.