Compare People v. New York Cent., etc., R. Co., (1914) 161 App. Div. 322, 146 N. Y. S. 490.

Acquisition of land by state to exclusion of corporation.— Lands which have once become a part of the forest preserve are thenceforth protected by this section and cannot be acquired by any corporation, private or public. People v. Adirondack R. Co., (1899) 160 N. Y. 225, 54 N. E. 689, reversing 39 App. Div. 34, 56 N. Y. S. 869, and affirmed in 176 U. S. 335, 20 S. Ct. 460, 44 U. S. (L. ed) 492. See also Adirondack R. Co. v. Indian River Co., (1898) 27 App. Div. 326, 50 N. Y. S. 245. Thus, where the special condemnation proceedings instituted under the Adirondack Park Act of 1897 (ch. 220) by the forest preserve board against lands of a private owner within the territory of the Adirondack park, were fully completed by service of the certificate of condemnation on the owner before the Adirondack Railway Company, which had previously filed a map and profile for an extension of its road through the same lands, commenced condemnation proceedings on its part, the land became a part of the forest preserve, and thereupon this provision of the constitution intervened against the railway company. People v. Adirondack R Co., (1899) 160 N. Y. 225, 54 N. E. 689, reversing 39 App. Div. 34, 56 N. Y. S. 869, and affirmed in 176 U. S. 335, 20 S. Ct. 460, 44 U. S. (L. ed.) 492.

Acquisition of lands subject to right of railroad.— Under this section, as is shown in the preceding paragraph, a railroad cannot acquire the right to operate through the forest preserve. Hence, it follows as a fair deduction that the state should not take land for the forest preserve which is already subject to the rights of a railroad. "If the granting by the state of any such right is inconsistent with its use as a forest preserve, then the acquiring of any land subject to such right would be inconsistent with the purpose for which it is acquired.” Adirondack R. Co. v. Indian River Co., (1898) 27 App. Div. 326, 50 N. Y. S. 245.

Alienation of lands under water.-"The constitutional provision refers to the lands of the Forest Preserve as 'wild forest lands,' and while this description might include lands under water owned by the state adjoining such 'wild forest lands,' it would hardly seem to include other lands under water at a distance from any forest whatever." Accordingly, chapter 355 of the Laws of 1907, a special act incorporating the Long Sault Development Company and empowering it to build a dam in the St. Lawrence river, does not offend this section, where, as a matter of fact, the lands under water in the St. Lawrence river, upon which the dam was to be built, are separated by many miles from uplands constituting the forest preserve. Long Sault Development Co. v. Kennedy, (1913) 158 App. Div. 398, 143 N. Y. S. 454, affirmed (1914) 212 N. Y. 1, 105 N. E. 849, Ann. Cas. 1914D 56.

8. Certain canals not to be sold; exception.

Application of funds derived from sale or lease of canals. 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. VII, § 6; amended in 1874, Art. VII, § 6; amended in 1882; amended, Const. 1894, Art. VII, § 8.

Purpose of prohibition against sale, lease or disposition of canals.— The sole purpose of this section is to continue the canals mentioned as the property, and under the management of the state, and to prevent their transfer in any wise or particular to corporations or individuals. People v. Walsh, (1914) 211 N. Y. 90, 105 N. E. 136, reversing 159 App. Div. 252, 144 N. Y. S. 367; Sweet v. Syracuse, (1891) 129 N. Y. 316, 27 N. E. 1081, 29 N. E. 289, reversing 60 Hun 28, 14 N. Y. S. 421.

Grant of easement in canal lands as within prohibition. This section does not compel the acquisition and retention by the state of a fee simple estate in lands appropriated for canal purposes. A less estate may properly be acquired so long as the canal itself is to be made the property of the state and is to be brought under its exclusive management. It follows that a contract, requiring the state to convey to a railroad company a permanent easement for railroad purposes in certain lands which constituted a part of the right of way of that company, but which had been appropriated by the state for canal purposes, is not unconstitutional hereunder. People v. Walsh, (1914) 211 N. Y. 90, 105 N. E. 136, reversing 159 App. Div. 252, 144 N. Y. S. 367. Alluding to this section the court said: "It does not relate to the quality of the title acquired or held by the state to the canal lands, but secures to the state the control, regulation and management of the canals so long as they are channels of transportation. It does not interdict the legislature from authorizing the appropriation of an estate less than the fee in the lands required for the canals. Were the contrary true, the frequent legislative grants of power to transportation companies to construct their lines across the canals would be constitutionally invalid, because while a grant of such power is a franchise the exercise of it by constructing the crossing and the resulting actual use and occupation is the acquisition of an easement or interest in the canal lands."

Grant of right to use waters of canal reservoir.- This section is not violated by an act (ch. 291, Laws of 1889, as amended by ch. 314, Laws of 1890), authorizing the city of Syracuse to take water from a certain lake that had been appropriated by the state "for a reservoir and feeder to the Erie Canal," it appearing that the waters accumulated therein were in excess of the amount needed for canal purposes and that the authority so conferred operated merely as a license to the city to take water not needed by the state subject to the paramount right of the state to revoke it at any time. Sweet v. Syracuse, (1891) 129 N. Y. 316, 27 N. E. 1081, 29 N. E. 289, reversing 60 Hun 28, 14 N. Y. S. 421.

Imposition of tax or assessment on canal property. Since the legislature is prohibited from selling, leasing, or disposing of the canals mentioned herein, it cannot authorize the imposition of a tax or assesment upon them. Such an imposition, if allowable, might result in the sale or lease of the canals. Wherefore, the charter of the city of Rochester (ch. 14, Laws 1880) giving the city power to levy assessments for local improvements on property benefited thereby, should not be construed to authorize the levy of assessments on that portion of the Erie canal lying within the confines of the city. Elwood v. Rochester, (1887) 43 Hun 102, 6 N. Y. St. Rep. 132, affirmed (1890) 122 N. Y. 229, 25 N. E. 238.

Disposition of abandoned canal.- The prohibition here made against the sale, lease, or other disposition of the canals mentioned would seem to relate to those properties so long only as they retain their character as canals. When for any natural cause, physical or economic, they have become of no value to the people of the state and have ceased to be used as canals, their disposition may be effected. People v. Stephens, (1878) 13 Hun 17. Compare DeWitt v. Elmira Transfer R. Co., (1892) 134 N. Y. 495, 32 N. E. 42. Thus, chapter 352, Laws of 1849, and chapter 267, Laws of 1857, authorizing a conveyance of lands taken for the bed of a canal when the canal itself had been practically abandoned, does not contravene section 6 of article 7 of the constitution of 1846, providing that "the legislature shall not sell, lease or otherwise dispose of any of the canals of this state, but they shall remain the property of the state and under its management forever." People v. Stephens, supra. In the opinion in that case these remarks were made: "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; but will it be contended that if, by any convulsion of nature, the bed of the canal, or any portion of it, should be reversed, so that instead of a ditch there was a ridge, that the state would be bound to keep the lands, worthless for navigation, worthless to the state, worthless and unusable for all the purposes for which they were obtained. If so, the action of the canal board in selling the old bed of the Erie canal, where curvatures had been cut off to straighten it, and the old channel abandoned, was clearly unconstitutional; and yet I fail to find that the strictest constructionist has ever so held. But it will be said that by this theory the whole of the canals might eventually be absorbed; granted; and what then? If the gradual abandonment be the result of natural causes, be not fraudulently produced, by which the canals cease to be canals and of no further use to the people of the state, clearly the constitution did not contemplate that the people should remain the owners of these waste lands forever; they are not to be leased or sold so long as they continue to be canals. When they cease to be canals, the reason for the inhibition ceases, and with it the inhibition. Cessante ratione legis cessat ispa lex."

8 9. Canal tolls prohibited.

Legislature to provide for superintendence and repair of canals.

Contracts for work or material; cancellation of 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 the contract shall prove to be unjust and oppressive, the

Payment of State Debts

Art. VII, §§ 10, 11

canal board may, upon the application of the contractor, cancel such contract.

Const. 1846, Art. VII, § 3; amended in 1854, in 1874, and in 1882; amended, Const. 1894, Art. VII, § 9.

Right of lowest bidder to mandamus.- Where the law (Vol. 1, p. 214, Laws of 1857), in pursuance of this constitutional provision, requires the canal contracting board to award contracts for repairs to "the lowest bidder who will give adequate security," and the board thereupon makes an award to one bidder, a lower bidder who has given the security required is not entitled to a mandamus. "The powers conferred upon the board necessarily involved and implied an exercise of discretion, although it seems exceedingly clear what decision their duty required them to make in this case. But they are to determine who is the lowest bidder, and what is adequate security; or if the amount and character of security required is fixed by general regulation, then the contracting board are to decide whether the security offered in any given case conforms to the regulations. The principle is well settled, that whenever the act requires the exercise of discretion, this remedy will not lie." People v. Contracting Board, (1863) 27 N. Y. 378.

§ 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.

Const. 1894, Art. VII, § 10.

Incurrence of obligation in excess of debt authorized.- A public officer charged with the execution of a project looking to the improvement of the state canals, to raise money for the prosecution of which the people have authorized the creation of a debt, cannot obligate the state in any amount in excess of the sum voted. Nor can this section be invoked to give validity to contracts made by him purporting to bind the state in excess of such Baker v. New York, (1902) 77 App. Div. 528, 78 N. Y. S. 922.

sum.

§ 11. Payment of state debts.

Sinking funds.

The Legislature may appropriate out of any funds in the treasury, moneys to pay the accruing interest and principal of any debt heretofore or hereafter created, or any part thereof and may set apart in each fiscal year, moneys in the State treasury as a sinking fund to pay the interest as it falls due and to pay and discharge the principal of any debt heretofore or hereafter created under section four of article seven of the constitution until the same shall be wholly paid, and the principal and income of such sinking fund shall be applied to the purpose for which said sinking fund is created and to no other purpose whatever; and, in the event such moneys so set apart in any fiscal year be sufficient to provide such sinking fund, a direct annual tax for such year

need not be imposed and collected, as required by the provisions of said section four of article seven, or of any law enacted in pursuance thereof.

Amendment of 1905.

§ 12. Improvement of highways.

Limitation of debts.

Payment.

County and town share of cost.

A debt or debts of the State may be authorized by law for the improvement of highways. Such highways shall be determined under general laws, which shall also provide for the equitable apportionment thereof among the counties. The aggregate of the debts authorized by this section shall not at any one time exceed the sum of fifty millions of dollars. The payment of the annual interest on such debt and the creation of a sinking fund of at least two per centum per annum to discharge the principal at maturity shall be provided by general laws whose force and effect shall not be diminished during the existence of any debt created thereunder. The Legislature may by general laws require the county or town or both to pay to the sinking fund the proportionate part of the cost of any such highway within the boundaries of such county or town and the proportionate part of the interest thereon, but no county shall at any time for any highway be required to pay more than thirty-five hundredths of the cost of such highway, and no town more than fifteen hundredths. None of the provisions of the fourth section of this article shall apply to debts for the improvement of highways hereby authorized.

Amendment of 1905.

ARTICLE VIII.

§ 1. Corporations, how formed.

Corporations may be formed under general laws; but shall not be created by special act, except for municipal purposes, and in cases where, in the judgment of the Legislature, the objects of the corporation cannot be attained under general laws. All general laws and special acts passed pursuant to this section may be altered from time to time or repealed.

Const. 1846, Art. VIII, § 1. See also Const. 1821, Art. VII, § 9.