Ci>Z4 
 
 'S^ 
 
CORNELL 
 
 UNIVERSITY 
 
 LIBRARY 
 
Cornell University Library 
 TC 624.N7A43 
 
 Opinions of the Judges of the Court of A 
 
 3 1924 022 881 753 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
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 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924022881753 
 
OPINIONS 
 
 OF THE 
 
 mm OF THE COIIBT OF IFPEJL!! 
 
 ON THE 
 
 CONSTITUTIONALITY 
 
 THE CANAL ACT. 
 
 ALBANT: 
 
 H. H. VAN DTCK) PRINTER, ATLAS OFFICE. 
 
 1852. 
 ■Sjt- 
 
eOUET OF APPEALS. 
 
 OPINION OF CHIEF JUDGE RUGGLES. 
 
 GEORGE #. Newell, Auditor of the Canal , 
 
 Department, plaintiff in error, 
 
 m. 
 
 THE PEOPLE on the relation of ERASTVS E. ' 
 PHELPS, defendants in error. 
 
 RuGGLES, Chief Judge. — This case comes before the Court 
 on a mandamus^ directed by the Supreme Court to Newett, the 
 Auditor of the Canal Department, commandiDg him to ^raw 
 His warrant as Auditor, upon the Treasurer of the State, for 
 the payment of a draft for $110, made fey one of the Canal 
 Commissioners in favar of Shippey, a contractor to coiistruct 
 certain culverts on the Erie Canal, and endorsed by him to 
 Phelps, the relator. The draft was drawn for money due 
 Shippey on a canal contract made in put-suance or under 
 color of the act entitled "An act to provide for the comple- 
 "tion of the Erie Canal Enlargement and the Genesee 
 " Valley and Black River Canals, passed July 10th 1851.'> 
 Two questions were raised on the argument in this Court : 
 First — Whether the contract was regularly approved by thfe 
 Canal Board in pursuance of the l^h section of the act 
 aforfisaid ; and secondly-^Whether the act itself was con- 
 
stitutional. If the objection to the validity of the' act is 
 well grounded^, it follows as a necessary consequence that 
 the canal contract was maAe without authority ; that the 
 Auditor was justified in refusing to pay the draft, and the 
 Judgment of the Supreme Court in directing a peremptory 
 mandamus, was erroneous. 
 
 Having, after a careful examination of the case, come to 
 the conclusion that the act is, in its main provisions, uncon- 
 stitutional and void, it is unnecessary to decide whether the 
 contract with Shippey was regularly approved and perfected- 
 The decision of the second question disposes of the whole 
 case. 
 
 The Constitution, art. 7, sec. 1,. apprbpriates and sets 
 apart in each fiscal year, out of the nett revenues of the State 
 canals, commencing on the first day of June, 1846, a certain 
 sum as a sinking fund, to pay the interest and redeem the 
 principal of that part of the State debt called the canal debt. 
 The sum thus appropriated and set apart was $1,300,000 in 
 each fiscal year, from the date above mentioned until the 
 first day of June, 1855, and afterwards $1,700,000 until the 
 canal debt should be fully paid ; and the principal and in- 
 terest of the sinking fund is to be sacredly applied to that 
 purpose. 
 
 By section 2 it is ordained that, after complying with the 
 provisions of the first section, there shall be appropriated 
 and set apart out of the surplus revenues of the State canals 
 in each fiscal year, commencing on the first day of June, 
 1846, a further sum as another sinking fund^ to pay the 
 interest and redeem the principal of that part of the State 
 debt called the General Fund debt. The sum thus appro- 
 priated and set apart by section two, was $350,000 in each 
 fiscal year, until a sufficient sum had been raised in pursu- 
 ance of the first section to pay the interest and extinguish 
 the entire principal of the canal debt ; and after that period, 
 then the sum of $1,500,000 in each fiscal year, until the 
 General Fund debt should be wholly paid. 
 By section 3, it is ordained that after satisfying the re- 
 
quirements of the first and second sections above mentioned, 
 " there shall be paid out of the surplus revenues of the 
 " Canals to the treasury of the State, on or before the thir- 
 " tieth day of September in each year, for the use and benefit 
 " of the General Fund, such sum not exceeding $200,000, 
 " as may be required to defray the necessary expenses of 
 " the State ; and the remainder of the revenues of the said 
 " canals shall, in each fiscal year, he applied in such manner as 
 " the legislature shall direct, to the completion of the Erie 
 " Canal enlargement and the Genesee Valley and Slack River 
 " Canals, until the said canals shall be completed." 
 
 The third section contains a further provision, that after 
 the General Fund debt shall be paid, or the canals shall be 
 completed, then the sum of $672,500,' or so much thereof 
 as shall be necessary, may be annually appropriated to defray 
 the expenses of the Government. 
 
 The first objection to the validity of the act of the 10th 
 of July, 1851, and the only objection which it would seem 
 necessary to discuss, is this : That the act directs the bor- 
 rowing upon interest of nine millions of dollars upon canal 
 revenue certificates, payable out of the future surplus reve- 
 nues after the completion of the canals ; and further provides 
 for the application of the whole sum to the completion of 
 the canals within three years. This is repugnant to the 
 mandate in the Constitution that the remainder of the reve- 
 nues of the canals shall, in each fiscal year, be applied to the 
 completion of the canals until they shall be completed. And 
 if the act should be carried into effect, it defeats and annuls 
 another clause in the Constitution above quoted, by which 
 a power is given to the Legislature to apply the remainders 
 of the revenue to the general expenses of the Government 
 immediately after the completion of the canals. 
 
 In the language of this constitutional mandate, there is 
 no obscurity. We know what is meant by " the remainder 
 of the revenues of the canals." It is the annual residue of 
 their nett income, after having set apart the sums pledged by 
 the Constitution for the specific purposes previously men- 
 
tioned. This remainder has averaged for five years prece4- 
 ing the 30th September,' 1837, more than $800,000 annually. 
 
 The manner in which these remainders are to be applied 
 is left by the Constitution to the direction of the Legisk' 
 ture, and so far as respects the manner of their application 
 the power of the Legislature is unlimited. They may apply 
 each remainder as it accrues to such portion of the enlarge- 
 ment of the Erie Canal, or to the completion of either of 
 the others, as they may deem expedient. They may divide 
 it among the three, or they may apply the whole to either 
 one. They may direct the width, depth and shape of the 
 trunk of the canals, and the dimensions and mode of con- 
 structing the locks. All this relates to the manner of ap- 
 plying the money, and it is therefore within the power con- 
 ferred on the Legislature. 
 
 But the manner in which the money is to be applied is 
 one thing ; and the time when the application is to be made 
 is another and a different thing. The difference between 
 the manner in which a thing is Ho be done, and the time 
 when it is to be done, is obvious to the plainest understand- 
 ing. The mechanic who mends a shoe comprehends it as 
 readily as the contractor who constructs a canal, or the con- 
 vention which frames a constitution. The distinction can- 
 not be reasoned down or even obscured by argument. It 
 perpetually recurs to the mind, whatever attempt may be 
 made to obliterate it. The principal may instruct his agent 
 specifically and strictly as to the time when the agency is 
 to be executed,while he leaves the manner in which it is to 
 be performed to the discretion of the agent; or he may give 
 special directions to his agent as to the manner in which a 
 work is to be done, while he leaves the time to the agent's 
 discretion. But in either case it is the agent's duty to obey 
 the specific directions of his principal. A discretionary 
 power may be conferred upon the agent as to the manner in 
 which a duty is to be performed, while all discretion as to 
 the time is withheld ; and in such case, the mode or manner 
 in which the duty is to be performed,' is subordinate to, and 
 
must be in conformity with the time specifically directed. 
 No discretionary authority with respect to the time when 
 each remainder is to be applied to the work, is conferred 
 upon the legislature. On the contrary, the time is fijced, 
 the command is positive ; jijid;all discretion in that respect 
 is withheld. 
 
 The remainder of the revenues " shall, in each fiscal year, 
 be applied," &c. The remainders are annual, separate and 
 successive ; and if the remainder be applied in each fiscal 
 year, the application must also be annual, separate and suc- 
 cessive. The Constitution is disregarded if a year is suffered 
 to pass without the application of a remainder to the pur- 
 pose specified ; and it is disobeyed if by intentional antici- 
 pation more remainders than one are applied in the same 
 year. The words are 'Hhe remainder" (in the singular 
 number) " shall in each fiscal year be applied ;" thus requir- 
 ing each remainder to be applied successively as it accrues. 
 The direction is not that the remainder shall be applied in 
 some or any fiscal year, but in mch fiscal year ; thus speak- 
 ing of and treating each remainder as a separate fund, to be 
 applied by itself in its own year. The language of the Con- 
 stitution by thus fixing the time when each remainder is to 
 be applied, precludes both anticipation and delay. The 
 application cannot be intentionally accelerated or retarded 
 without disobeying the command. 
 
 This has been said to be too narrow a construction of the 
 clause in question. But the first maxim in the construction 
 of instruments is, " that it is not allowed to interpret what 
 "has no need of interpretation. When an instrument is 
 " worded in clear and precise terms— ^when its meaning is 
 " evident, and leads to no absurd conclusion — there can be 
 "no reason for refusing to admit the meaning which the 
 "words naturally import. To, go elsewhere in search: of 
 " conjectures in order to restrict or extend it, is but to elude 
 " it. If this dangerous method be once admitted, there will 
 " be no instrument which it will not render useless." (Fof- 
 <e/, JSooA 2, cA, 17, § 263.) 
 
This meaning of the clause under consideration is un- 
 doubtedly too narrow to admit of the consolidation of the 
 separate and successive remainders of the revenue, for a 
 number of years, into one fund, for the purpose of applying 
 the entire fund at once, or within three years, to the object 
 to be accomplished. Before this can be done we must blot 
 out the words "in each fiscal year," which fix the: time 
 when each remainder is to be applied. In the language of 
 Mr. Justice Bronson, in The People vs. Purdy, (2 Hill, 32,) 
 " For one I dare not venture on such a course. Written 
 " Constitutions will soon come to be regarded as of little 
 " value if their injunctions may be thus lightly overlooked ; 
 " and the experiment of setting a boundary to power will 
 " prove a failure. We are not at liberty to presume that 
 " the framers of the Constitution, or the people who adopted 
 " it, did not understand the force of language." 
 
 The direction contained in the Constitution with respect 
 to the time when the remainders of the canal revenues shall 
 be applied to the enlargement and completion of the canals, 
 is too clear and explicit to be disregarded, even if we were 
 at a loss as to the motive and reason on which it was found- 
 ed. But we are under no such embarrassment. The object 
 and purpose of the convention cannot be misunderstood. It 
 was to prevent the contracting of debt for the completion 
 of the canals ; and to preclude any device or contrivance 
 by which the State or its revenues should be subjected to 
 the payment of interest on money borrowed, or revenues 
 anticipated, for the completion of the canals. It is an un- 
 disputed historical fact, that for the last fourteen years at 
 least, the State has been agitated by a great financial ques- 
 tion in regard to the canals, and more especially in regard 
 to the enlargement of the Erie Canal. This question was, 
 whether the enlargement should be gradually carried on and 
 completed by means of the surplus revenue of the canal, 
 after satisfying the pledges to which it had been subjected, 
 or whether it should be more speedily accomplished by means 
 of money borrowed. In 1838, the policy of borrowing 
 
9 
 
 money prevailed, and between that year and 1842, the canal 
 debt was greatly increased. 
 
 In 1842 the financial condition of the State had become 
 embarrassed ; the means in the Treasury were not sufficient 
 to satisfy the demands upon it ; money could no longer be 
 borrowed at the ordinary rate of interest ; and the credit of 
 the State had become essentially impaired. The cost of the 
 public works had greatly exceeded the estimates upon which 
 they were undertaken. The revenues of some of them had 
 fallen far short of public calculation: instead of- contribu- 
 ting to the resources of the Treasury they were a burthen 
 upon it. From these and other causes, the policy of the 
 government in relation to the means by which the public 
 works were to be completed, underwent in that year a total 
 and radical change. All further expenditure on the public 
 works, then in progress of construction, was suspended by 
 law. A direct tax was laid, and such further loans at an 
 unusual rate of interest were authorized as were necessary 
 for the purpose of putting the Treasury in condition to pay 
 the demands upon it as they should become due ; and a por- 
 tion of the surplus revenue of the canals was devoted to the 
 formation of a sinking fund for the redemption of the canal 
 debt. {Laws of 1842, chap. 114.) 
 
 The enlargement and completion of the canals remained 
 in a state of suspension when the constitution of 1846 was 
 framed. The same financial question was agitated and de- 
 bated in the convention. The revenues of the Erie Canal 
 had in the mean time greatly increased. Together with the 
 direct tax laid in 1842, they were abundantly sufficient to 
 have paid the interest on the public debt, and to have 
 completed the public works, within a comparatively short 
 period. But the policy of speedily extinguishing the pub- 
 lic debt prevailed in the convention over that of a speedy 
 enlargement and completion of the canals. This is manifest 
 not only from the debates and proceedings of the conven- 
 tion, but from almost every section of the financial article 
 in the Constitution. It is shown by the large sums devoted 
 
10 
 
 to that purpose out of the canal revenues ; by the restraints 
 imposed upon borrowing; by the prohibition against the 
 release or compromise of demands against incorporated com- 
 panies ; by the application of all sums collected from such 
 companies to the augmentation of the sinking fund of the 
 ipublic debt ; by the prohibition against loaning the credit 
 of the State ; by the injunction that all money raised by 
 borrowing shall be applied exclusively to the object speci- 
 fied in the act authorizing the debt, or to the repayment of 
 that debt. 
 
 No language can be better adg(pted to the carrying out and 
 enforcing of this policy in the completion of the canals than 
 that which requires each remainder to be applied in its own 
 fiscal year. This direction is incompatible with a sale of 
 the future remainders for the purpose of applying them out 
 of their proper time ; and equally so with the plan of bor- 
 rowing on the credit of the fund, and applying the avails in 
 mass. And it is incompatible with the expenditure of any 
 portion of the remainder for the payment of interest, except 
 in the single case provided for in the 10th section of article 
 seven, by which, if the appropriation should exceed the 
 revenue, a loan not exceeding one million may be contract- 
 ed for the purpose of meeting the deficit. 
 
 By far the strongest objection to the borrowing of money 
 for pTiblic purposes, arises from the obligation to pay inter- 
 est on the loan. The debts thus incurred have usually a 
 long time to run ; and the interest often amounts in the end 
 to a greater sum than the principal. In this respect it makes 
 no difference whether the debt is contracted on the general 
 credit of th6 State, or on the credit of a fund belonging to 
 the State. When the interest on the loan is raised by a tax, 
 it comes from the pockets of the people individually. When 
 it is paid out of a fund belonging to the people, it is paid 
 out of their common purse. In respect to the profit and 
 loss of the transaction, the objection is as great to the one 
 mode of borrowing as to the other. The chief object of the 
 restraint imposed by the 12th section of article seven of 
 
11 
 
 tjie Constitution, upon the contracting of public debt, was, 
 to protect the people against the exhausting burthen of pay- 
 ing interest. The fifth section authorises a loan upon the 
 credit of the ^ipking funds to procure means to satisfy the 
 claims of the creditors of the State as they become payable, 
 and this is the only authority for such a loan. The restraints 
 imposed by the 12th section are in effect annulled, if the 
 Legislature may borrow without limit upon a pledge of 
 the public property or the public revenue. The extent to 
 ]«rhich this may be carried, if tolerated in the present in- 
 stance, renders the 12th section of the Constitution nugatory 
 and useless. The main design of the direction that the re- 
 mainders should be annually applied, undoubtedly was to 
 prevent the adoption of any scheme involving the payment 
 of interest on the funds used in the completion of the canals. 
 
 It has been suggested that the remainders of the canal 
 revenues cannot be appropriated and applied during the fiscal 
 year in which they accrue, because their amount cannot be ac- 
 tually ascertained until the close of the year. If this were 
 true, it would not, in the slightest degree, affect the ques- 
 tion under consideration. It would prove nothing except 
 that the year in which the remainder is ascertained, is the 
 proper year for its application. The objection to the act of 
 1851 is, that it applies the revenues in mass, and not suc- 
 cessively as required by the Constitution ; and if it be ad- 
 mitted that the year when the amount of the remainder is 
 ascertained is the fiscal year to which the remainder belongs 
 in respect to its application, the force of the objection 
 remains undiminished. 
 
 But there is no impracticability, nor indeed any difficulty 
 in applying each remainder during the year in which it ac- 
 crues. The revenue of previous years affords the basis of 
 an estimate sufficiently accurate for the appropriation for the 
 current or following year; and if there should be a deficit' in 
 the surplus revenue to meet any prudent engagement, made 
 upon the faith of the appropriation, the deficiency may be 
 supplied by a loan in pursuance of the 10th section of the 
 
12 
 
 7th article of the Constitution. This is understood to be in 
 conformity with the practice of the government since the 
 adoption of the Constitution of 1846. Most of the appro- 
 priations in the United States government, and in this State, 
 are made before the revenues out of which they are to be 
 paid are actually collected. They are based upon estimates 
 which are founded on the revenue of previous years, and the 
 estimate of the nett canal revenues, after deducting the sums 
 set apart for the sinking fund, is the estimate of. the remain- 
 der. There is no more difficulty ifl the case, if it should 
 ever happen, where the actual surplus revenue should exceed 
 the estimate and appropriation. There would in such case 
 be a failure on the part of the officers of the government to 
 apply the revenue according to the literal requirement of 
 the Constitution, and the surplus on hand wonld remain to 
 be disposed of by the Legislature, whose duty it would be 
 to apply it to the completion of the canals with the next 
 year's revenue. Such a case under an intelligent and faith- 
 ful administration of the government may always be avoided. 
 The 3d and the 10th sections, taken together, made ample 
 provisions for an appropriation which shall embrace the 
 entire remainder. But if by the culpable omission of the 
 Legislature, (a case not to be presumed,) or by an erroneous, 
 although honest estimate, the whole remainder should not 
 be applied during the fiscal year in which it accrues, the 
 error may be corrected by the Legislature of the succeeding 
 year in the same manner as if the appropriation should be 
 entirely omitted when it ought to have been made. The 
 supposed impracticability of applying the remainders annu- 
 ally according to the requirement of the Constitution, is 
 entirely imaginary. 
 
 The act of 1851 is also repugnant to the last clause of 
 section 3, of article 7, of the Constitution. By this clause 
 it is ordained that " after the general fund debt shall be paid, 
 " or the said canals shall be completed, then the sum of 
 " $672,500, or so much thereof as shall be necessary, may be 
 " annually appropriated to defray the expenses of the govern- 
 
" merit." This power conferred by the Constitution upon the 
 Legislature takes effect immediately upon the completion 
 of the canals. It is a po^ver to apply to the general expen- 
 ses of the government, a part — a large part — of the subse- 
 quent remainders of the canal revenues, which by the com- 
 pletion of the canals will be released fi;om their pledge to that 
 object. The power cannot be exercised by the Legislature 
 until the revenue is released by the completion of the canals, 
 because until then there is nothing to appropriate. 
 
 But by the act of 1851, (§ 3,) it is enacted, that, " after the 
 " close of the fiscal year in 1854, or at such earliest period as 
 " the said enlargement and canals shall be declared by the canal 
 " board to be completed; the whole of the said surplus revenues 
 "specified in the first section of this act, [the canal revenue 
 "remainders,] as the same shall be ascertained at the end of 
 "each fiscal year, shall constitute a separate fund for, and be 
 "appliedtothepayment of interest on the said canal revenue 
 "certificates so issued by the comptroller as tbe same shall 
 "fall due, and to the redemption of the said certificates as 
 " they shall become redeemable, or to the purchase of the said 
 " certificates as hereinafter provided." Thus the remainder 
 of the canal revenues, which by the Constitution might im- 
 mediately upon the completion of the canals have been 
 appropriated to defray the expenses of the government, are, 
 by this act, pledged for a great number of years after the 
 completion of the canals to the payment of the canal revenue 
 certificates. The canal revenue certificates may be issued 
 until the end of the third year after the passing of the act, 
 and be made payable at any time within twenty-one years 
 after their date. Thus the power which the constitution 
 gives to the legislature is defeated, if the pledge contained 
 in the act of 1851 is valid. 
 
 One answer to this objection to the validity of the act, as 
 given upon the argument was, that the canals are not to be 
 regarded as completed until the canal revenue certificates 
 shall have been paid. This is an extraordinary proposition; 
 a proposition not only at variance with the plain import of 
 
14, 
 
 the language of the Constitutioii^ but in direct contradiction 
 of the act of 1851. It has always been understood that the 
 canals will be completed whea the work shall kave beeii 
 done, and so the act of 185l regards it. But for the pur- 
 pose of reconciling the act with the Constitution^ we ai^ 
 required to reject the plain meaning of the words used, and 
 to understand theia in a newly invented sense ; in a.sens6 
 in which they were never understood either by the Conveni- 
 tion of 1846, or by the Legislature of 1851. We are re- 
 quired to say not only that the canals are not completed 
 when the work is done, but that they are not completed 
 when the Canal Board, acting officially under the authority 
 of the act, shall have declared them completed. We Cannot 
 assent to the proposition contended for. It is untrue as a 
 fact ; and its untruth is apparent on the face of the Consti- 
 tution and on the face of the act in question. The act pro- 
 vides for the finishing of the whole work within three years. 
 When that is done, it directs the Canal Board to declare the 
 enlargement and canals to be completed ; and then in entire 
 disregard of the constitutional provision, which authorizes 
 the future remainders, upon the happening of that event, to 
 be applied to defray the general expenses of the govern- 
 ment, it directs them to be funded to pay the canal revenue 
 certificates. 
 
 It was not contended on the argument, and it cannot be 
 successfully contended, that the Legislature of 1851 could 
 control or defeat the exercise of a power which the Consti- 
 tution confers on a future Legislature. It was even admitted 
 that the disposition which the act of 1851 makes of the 1*6- 
 mainders in advance beyond two years from the passing of 
 the act, was inoperative except as a pledge of the remain- 
 ders. The act purports, however, to give explicit directions 
 for the funding of the remainders, and to make an absolute 
 disposition of the fund. 
 
 But if it is to be regarded only as a valid pledge, it de- 
 feats the execution of the constitutional power as effectually 
 as an absolute disposition of the fund, unless it be admitted 
 
15 
 
 that the Legislature may rightfully violate lawful pledges 
 made by its predecessors. The design of the Constitution 
 was, that the remainders, subsequent to the completion of 
 the canals, should be left subject to the disposition of the 
 Legislature at and after their completion ; and they cannot 
 therefore be disposed of nor pledged until that time arrives, 
 without subverting that design. 
 
 It is true that, if the remainders are applied annually ac- 
 cording to the constitutional requirement, the canals can not 
 be completed as soon as the end of the fiscal year in 1854, 
 according to the plan of the act of 1851 ; and the revenues 
 will not, until after that time, be released and made appli- 
 cable to the general expenses of government. But this does 
 not remove the objection that the act is repugnant to the 
 Constitution. To make it an answer to this objection, even 
 upon the forced supposition that the canals are not completed 
 until the certificates shall have been paid, it must be demon- 
 strated to a certainty that by the completion of the canals ac- 
 cording to the plan of the act of 1851, the canal revenue cer- 
 tificates will be paid off, and the revenues themselves be 
 made applicable to general purposes, as soon as the canals 
 would be completed by the more gradual process prescribed 
 by the Constitution. This is impossible. No human fore- 
 sight or sagacity can authorize the assertion that the canal 
 revenue certificates can be paid off or redeemed according 
 to the plan of the act, as soon as the remainders would finish 
 the canals according to the plan of the Constitution. Every 
 probability is against such a supposition. But it is unneces- 
 sary to enter into an estimate of probabilities. All that part 
 of the people of this State who have a greater pecuniary 
 interest in the early application of the canal revenues to the 
 general expenses of the government, than in the early com- 
 pletion of the canals, (and there are many such,) will be de- 
 frauded of their constitutional rights, if by the operation of 
 the act of 1851, the time when the canal revenues may be 
 used for general purposes shall be deferred or delayed ; and 
 any plan or system, which by a departure from the plan of 
 
16 
 
 the Constitution puts this right at hazard, is a wrong done 
 to them and a violation of the Constitution. 
 
 But the concluding part of the third section above quoted^ 
 is important in another point of view. It confirms the con- 
 struction already given to the previous part of the same sec- 
 tion, which directs the annual application of the remainders 
 to the completion of the canals. The concluding clause 
 shows that the completion of the canals and the release of 
 the remainders from their application to that object, were 
 events to happen at the same time. The release of the rev- 
 enues was to be the immediate consequence of the comple- 
 tion of the canals. But this consequence cannot follow 
 unless the work is paid for as it progresses, by the, annual 
 application of the remainders as directed by the previous 
 clause ; and without leaving a debt chargeable on the remain- 
 ders after the work is done. The two clauses are adjusted 
 to each other on the same plan of completing the work by 
 means of the revenue, without debt or anticipation. And 
 the latter clause demonstrates with entire certainty that the 
 former is to be understood according to the exposition here- 
 in before given to it. Reading the two clauses in connec- 
 tion, it cannot be doubted that the direction that " the re- 
 mainder shall, in each fiscal year, be applied, &c.," was 
 cautiously framed for the purpose and with the design of 
 precluding any scheme or device like that contained in the 
 act in question. Without striking it out, or mutilating it by 
 transposition, (which was not contended for on the argu- 
 ment,) there is no escape from the conclusion that the plan 
 and provisions of the act of 1851 are repugnant to its direc- 
 tion and commandment. 
 
 The act in question is therefore invalid on the following 
 grounds : 
 
 1. Because it is in disobedience of the command of the 
 Constitution, that the remainder of the canal revenues shall, 
 in each fiscal year, be applied to the completion of the 
 canals, until they shall be completed. 
 
17 
 
 2. Because it applies a large portion of the revenues to 
 the payment ot interest on the loan which it authorizes ; 
 whereas the Constitution requires the revenues to be directly 
 and wholly applied to the work itself, as fast as they accrue, 
 and therefore without the payment of interest on money 
 borrowed, or revenue anticipated, unless upon a Ioeui made 
 in the case specified in section 10. 
 
 3. Because if the plan of the act is to be regarded as a 
 loan on the pledge and credit of the revenues, and not on the 
 general credit of the State, it is nevertheless forbidden by 
 the spirit and intent of the 12th section of the 7th article, 
 and is incompatible with the annual and direct application 
 ot the remainders required by the Constitution. The re- 
 mainders cannot be made the basis of a loan, becau^e^if 
 applied as directed by the Constitution, they cannot be paid 
 or pledged to the lender. 
 
 4. Because the act withholds the remainders of the canal 
 revenues, after the completion of the canals, from being ap- 
 plied Jo the general expenses of the government, and defeats 
 the power which the Constitution vests in the Legislature 
 to devote them to that use upon the happening of the event 
 specified by the Constitution. 
 
 5. Because, if carried into effect, the act might, and in all 
 probability would defer and postpone the application of these 
 revenues to the general expenses of the government, beyond 
 the time when the canals would have been completed by the 
 successive application of the remainders. 
 
 I concur also in the opinion entertained by the majority 
 of my brethren, that if this act should be carried into effect, 
 it would impose an obligation upon the State to pay the 
 canal revenue certificates in case the remainders pledged for 
 that purpose should, by the course of future legislation, or 
 from other causes, become insufficient. 
 
 There is no legal remedy to recover a debt against the 
 State in favor of its own citizens. In general the State pays 
 only by reason of its moral obligation. The fact that money 
 borrowed under the authority of a statute is applied to the 
 
18 
 
 use of the State, creates of itself such an obligation as future 
 Legislatures would feel bound to respect. No one ac- 
 quainted with the history of the legislation of this State can 
 doubt that money borrowed under the act of 1851, if applied 
 to the completion of the canals, would be repaid on the 
 ground of this moral obligation, in case of a failure of the 
 revenues. The provision contained in the 14th section of 
 the act professing to limit the liability of the State, might 
 give rise to objection and controversy; but sooner or later 
 the claim would prevail, and could not be effectually resisted. 
 It is, therefore, in this respect, an evasion if not a direct 
 violation of the Constitution. 
 
 The judgment of the Supreme Court should be reversed, 
 and the application for a mandamus denied, with costs in 
 the Court below. 
 
OPINION 
 
 OF JUDGE JOHNSON, 
 
 ■Johnson J. — The question of the constitutionality of tie 
 canal act of July 10th, 1851, is directly presented by these 
 cases, and must necessarily be decided* A decision against 
 its validity will prove injurious to the interests of many per- 
 sons, and disappoint the earnest wishes of many more. But 
 this consideration, while it occasions regret on my part, 
 detracts nothing from the obligation to preserve the Con- 
 stitution from infraction. The evil consequences to the 
 community from an example of judicial unfaithfulness to 
 that duty, would far outweigh the worst to be apprehended 
 from a decision adverse to the canal act. 
 
 Before proceeding to the consideration of the principal 
 question involved in these cases, it may not be amiss to 
 advert very biiefly to one or two topics which were urged 
 ■upon our attention on the argument. For there may be 
 found persons so little familiar with the grounds of judicial 
 procedure, as to attach to them much more importance than 
 they really deserve. These topics were presented to us 
 under a great number of distinct heads, but are reducible to 
 two. The one, that the Governor, and other State officers, 
 and two successive Legislatures, had been of opinion, and 
 had officially acted upon the opinion, that the act in ques- 
 tion was not repugnant to the Constitution. The other, 
 that several gentlemen, occupying no official station, but of 
 
20 
 
 acknowledged learning and ability as lawyers and states- 
 , men, had expressed opinions to the same effect* As to the 
 first ground, although the action of the other departments 
 of the Government is always entitled to the respectful con- 
 sideration of the judiciary, it can and ought to weigh nothing 
 when it conflicts with their settled conviction of the re- 
 quirements of the Constitution. As to the latter ground, it 
 seems quite obvious that we should be very fo'rgetful of our 
 duty, and of the obligation and responsibility officially im- 
 posed upon us, if we allowed our judgments to be swayed 
 by the opinions of any number of men, however respectable* 
 
 Leaving these matters without further observation, let us 
 turn to the main question which we are called upon to ex- 
 atfiine. The people of this State, in the exercise of their 
 underived and sovereign authority, established the Consti- 
 tution. As part of the machinery of government under it, 
 they created a Senate and Assembly, and vested in them the 
 legislative power of the State. The authority of the legis- 
 lature is not inherent, but is entirely derived from and 
 subordinate to the Constitution. " The Constitution is the 
 basis of legislative authority j it lies at the foundation of 
 all law, and is a rule and commission by which both legis- 
 lators and judges are to proceed." (2 Ball. 304.) If there- 
 fore an act of the Legislature is contrary to any provision 
 of the Constitution, it cannot possess the force of law. 
 Ever since the formation of constitutional governments, this 
 principle has on all proper occasions been asserted and en- 
 forded by the Courts, and is now one of the acknowkdged 
 inaxims and fundamental rules of the law. 
 
 The provisions of the Constitution which bear most imme- 
 diately upon the question before us, are contained in article 
 7, Sections 3 and 12. The 3d section provides, that after 
 ■paying certain expenses of the canals, and the sums appro- 
 priated by the first and second sections of the same artitfle, 
 •not more than $200,000 shall be paid out of the surplus rev- 
 enue's annually to defray the necessary expenses of the State, 
 *' and' the remainder of the revenues of the said canals shall, 
 
21 
 
 **m each fiscal year, be applied, in such manner as the Leg- 
 "islature shall direct, to the completion of the Erie Canal 
 ■"enlargement, and the Genesee Valley and Black River 
 *' canals, until the said canals shall be completed." Section 
 ''twelve provides, that '^no debt shall be hereafter con- 
 " tracted by or on behalf of this State," (except certain debts 
 specified in the 10th and 11th sections, which have no bear- 
 ing upon the question sander consideration,) unless author- 
 ized by a law imposing an annual tax to pay the interest 
 and provide for the discharge of the principal ; such law to 
 be submitted to the people at a general el«ctioii before it can 
 take effect. If it shall be found that the act in question pur- 
 ports to dispose of the remainders of the revenues of the 
 camals, at a time or in a manner unauthorized by the 3d sec- 
 ti-on, or that it purports to create a debt unauthorized by the 
 provisions of the 12th section, then the act is void. 
 
 To look at the provisions bearing upon the first of these 
 questions from the same point of view, and in the light of 
 the same facts as did the Convention who framed the Consti- 
 tution, and the people who adopted it, will facilitate our ar- 
 riving at a just conception of its meaning. In the years 
 1834 and 1835, the project of enlarging the Erie Canal be- 
 gan to be carried into effect. The financial policy adopted 
 was substantially, to apply the surplus revenues to the work 
 and carry it on just so fast as the means thus furnished would 
 permit. This policy was pursued until 1838, when another 
 and wholly different course was adopted. It went upon the 
 tiasis of considering the revenues of the canal as a fund to 
 provide for the repayment of the principal and to pay the 
 interest of moneys to be borrowed and applied to the com- 
 pletion of the work; and this is in substance the plan of the 
 present Canal act. Upon this plan the State proceeded till 
 1842, when, judging from the legislative action of that year, 
 the scheme was found wholly to have failed. 
 
 When the Convention assembled in 1846, these two finan- 
 cial schemes were fresh in the recollection of every one. 
 That the difference between them is not formal, but of their 
 
22 
 
 very essence, may be rendered entirely apparent from a con- 
 sideration of the results which would follow the adoption of 
 each plan ; taking, for the sake of illustration, certain as- 
 sumed amounts for the revenues of the canals, and for the 
 total cost of construction. These amounts are obviously 
 wholly unessential, and in no way affect the principle of ap- 
 plication. They are assumed, not because they are supposed 
 to represent with accuracy the actual condition of the canals^ 
 or the probable results of the bill in question, but because 
 they afford a striking illustration of the different results which 
 may follow from the adoption of the one plan or the other. In 
 order therefore to determine the question proposed, let us 
 assume the annual remainder of revenues to be $500,000, and 
 the total cost of completion $15,000,000. By the annual appli- 
 cation of the remainders, the canals would certainly be com- 
 pleted in thirty years. What would be the result on the 
 principle of anticipation adopted by the act in question? 
 The annual interest on the loan of $9,000,000, at six per 
 cent., is $540,000 ; the annual remainder applicable to its 
 payment $500,000; and the annual deficit $40,000. So that 
 at the end of 30 years, instead of having the canals comple- 
 ted and no debt, they would still need an expenditure of 
 $6,000,000 to complete them, and the amount of money 
 owing, by reason of the deficiency of the remainders to keep 
 down the annual interest, would have swelled up from 
 $9,000,000 to $10,200,000. 
 
 It is obvious, therefore, that the difference between these 
 two schemes is not formal or modal merely, but is a diffier- 
 ence in their very aature and essence. Having fruits so 
 widely different, they do present a choice, and we might not 
 unnaturally expect that a Convention or any other body 
 having to act upon the subject, would perceive the differ- 
 ence, and signify their choice. Does the section in question 
 show that the Convention and the People did choose between 
 these two schemes'? 
 
 Whether we are considering an agreement between 
 parties, a statutej or a Coastitution, with a view to its 
 
23 
 
 interpretation, the thing we are to seek is, the thought which 
 it expresses. — To ascertain this, the first resort in all cases 
 is to the natural signification of the words employed, in the 
 order and grammatical arrangement in which the framers of 
 the instrument have placed them. If, thus regarded, the 
 words embody a definite meaning, which involves, no absur- 
 dity, and no contradiction between different parts of the 
 same writing, then that meaning apparent upon the face of 
 the instrument, i& the one which alone we are at liberty to 
 say was intended to be conveyed. In such a case there is 
 no room for construction. That which the words declare, 
 is the meaning of the instrument ; and neither courts 
 nor legislatures have the right to add to or take away 
 from that meaning. This is true of every instrument, but 
 when we are speaking of the most solemn and deliberate 
 of all human writings, those which ordain the fundamental 
 law of States, the rule rises to a very high degree of signifi- 
 cance. It must be very plain, nay, absolutely certain, that 
 the People did not intend what the language they have em- 
 ployed, in its natural signification, imports, before a Court 
 will feel itself at liberty to depart from the plain reading of 
 a constitutional provision. On this, subject Chief Justice 
 Marshall says, speaking of the Constitution of the United 
 States: — "As men whose intentions require no concealment 
 " generally employ the words which most directly and aptly 
 " express the ideas they intend to convey^ the enlightened 
 " patriots who framed our Constitution, and the People who 
 " adopted it, must be understood to have employed, words in 
 " their natural sense, and to have intended what they 
 " SAID." {Gibbons vs. Ogden, 9 Wheat. 188.) To the same 
 effect is the case of The People vs. Purdy, (2 Hill, 31, and 4 
 Hill, 384), upon the construction of that clause in the former 
 Constitution of this State requiring the assent of two-thirds 
 of the members of the Legislature to every bill " creating, 
 continuing, altering or renewing any body politic or corpo- 
 rate." The attempt in that case was, to exempt municipal 
 corporations from the provision. Bronson J., dissenting 
 
24 
 
 from the judgment of the Supreme Court, says : " I do not 
 " so read the Constitution. These words are as broad in 
 " their signification as any which could have been selected 
 "for the occasion from our vocabulary, and there is not a 
 " syllable in the whole instrument tending in the slightest 
 " degree to limit or qualify the universality of the language. 
 " If the clause can be so construed, that it shall not extend 
 " alike to all corporations, whether public or private, it may 
 " then, I think, be set down as an established fact that the 
 " English language is too poor fo^ the framing of fundamen- 
 " tal laws which shall limit the powers of the legislative 
 " branch of the government." " In this way a solemn 
 " instrument, for so I think the Constitution should be con- 
 " sidered, is made to mean one thing by one man, and some- 
 " thing else by another, until in the end it is in danger of 
 " being rendered a mere dead letter, and that, too, where 
 " the language is so plain and explicit that it is impossible 
 '' to make it mean more than one thing, unless we first lose 
 " sight of the instrument itself, and allow ourselves to roam 
 " at large in the boundless field of speculation. For one, / 
 " dare not venture on such a course. Written Constitutions 
 " of government will soon come to be considered of little 
 "value, if their injunctipns may be thus lightly overlooked ; 
 " and the experiment of setting a boundary to power, will 
 " prove a failure. We are not at liberty to presume 
 " that the framers of the Constitution, or the People who 
 " adopted it, did not understand the force of language." 
 The judgment thus dissented from was reversed in the Court 
 for the Correction of Errors, and Senator Paige, in his 
 opinion in that Court, says : " For one I cannot consent to 
 " palter in a double sense with any part of the Constitution. 
 " Through no agency of mine shall it be made to keep the 
 "word of promise to the ear and break it to the hope. I 
 " trust that the Court will not hesitate to array itself in 
 " favor of the old and revered doctrine of strict construc- 
 " tion — the only sound and safe doctrine for the government 
 " of either judges or legislators. If courts are allowed to 
 
25 
 
 " depart from it, and venture upon the perilous experiment 
 " of substituting, for the clear language of the instrument, 
 " their own notions of what it ought to have been, or what its 
 "framers intended, there will be an end of written Consti- 
 " tutions, and of all attempts to fix limits to legislative and 
 " judicial power." 
 
 Applying these principles to the section in question, we 
 are unable to see that the words " in each fiscal year," are 
 not placed in such connection with the residue of the sen- 
 tence, as to convey the meaning which the convention and 
 the people intended. We see no ground for thinking that 
 a diflFerent arrangement of the words of the clause would 
 be better calculated to express that meaning, and no ground 
 for altering the arrangement, except a dislike of the mean, 
 ing which is now clearly conveyed. The words in question^ 
 placed where they are, are full of significance, and say as 
 plainly as language can, that the application of the remain- 
 ders of revenue to the enlargement and compjetion of the 
 canals, is to be made in each fiscal year, until their comple- 
 tion. The convention and the people have then chosen 
 between the two schemes of finance of which we have 
 spoken, both of which had been tried and their results as- 
 certained. Taught by experience, they selected that scheme 
 which they saw ensured success, avoided debt and facilita- 
 ted economy — the scheme of paying as the means of pay- 
 ment should be produced from the revenues of the canals. 
 
 It is, however, contended that, conceding the words " in 
 each fiscal year" to be so placed as to convey the meaning 
 which the people and the convention intended, the whole 
 clause taken together confers upon the Legislature entire 
 discretion over the manner of applying the revenues to the 
 enlargement and completion of the canals. That although 
 this application is. directed to be made in each fiscal year, 
 yet the scheme of the canal act is one mode of thus apply- 
 ing these revenues. That, therefore, as the whole subject 
 of the manner of application is within the discretionary 
 
26 
 
 power of the Legislature, the particular manner adopted in 
 the act is necessarily constitutional. 
 
 If the words of the constitutional provision had been " in 
 such manner as the Canal Board shall direct," no one would 
 have supposed that Board entrusted with the power to get up 
 such a financial scheme as the act in question contains. No 
 one would have doubted that the clause fixed, in the first 
 place, the thing to be applied, viz. : the remainders of reve- 
 nue ; next, the object to whicji they were to be applied, the 
 enlargement and completion of the canals ; and next, the 
 time of application "in each fiscal year until the canals shall 
 be completed." And no one would have hesitated to admit 
 that the discretion conferred by the use of the words " in 
 such manner as the Canal Board shall direct," had reference 
 to other points than those which had thus been fixed. Now 
 it was never heard of as matter of law that the character of 
 the agent had anything to do with the extent or nature of 
 the power conferred upon him. That depends altogether 
 upon the terms in which it is conferred, and not at all upon 
 the character of the agent. This proposition is abun- 
 dantly plain, and in general terms would scarcely be denied 
 by any one. Yet the position we are examining is founded 
 upon its practical denial, on the notion of the sovereignty 
 of the Legislature, which, although entirely accurate in ref- 
 erence to the Parliament of Great Britain, as to which body 
 it was first announced, has a very limited application 'to 
 legislative bodies existing under and subject to the provi- 
 sions of a written Constitution. That the Legislature pos 
 sesses the legislative power of the State under the Consti- 
 tution is true ; but this does not touch the question of the 
 extent of that power. That depends upon the restrictions 
 which the Constitution has imposed ; because, subject to 
 those restrictions, the whole legislative power of the State 
 is granted. 
 
 In respect to the revenues of the State, the Legislature 
 has not been entrusted by the people with unlimited power. 
 On the contrary, the limitations to be placed on its power 
 
^7 
 
 seem to have called for and received the anxious attention 
 of the convention. The whole scope of the 7th article 
 of the Constitution manifests the most careful purpose to 
 assign limits to a power which would otherwise be unre- 
 strained. These restrictions, it is to be remembered, are 
 imposed by the sovereign power upon one of the agents it 
 has constituted to carry on government. We are not at 
 liberty to think that restrictions upon the power of the Leg- 
 islature are unnecessary. The fact that such restrictions 
 are contained in the Constitution under which we sit, is, for 
 us, conclusive proof that these restrictions are necessary. Nor 
 can we regard them as unwise, or against a liberal and en- 
 lightened policy, and therefore to be evaded or construed 
 otherwise than according to the spirit and policy of the pro- 
 visions themselves. If that policy differs from any other 
 line of policy, then the latter is that which we are bound to 
 avoid. The policy of the Constitution is, for us, liberal, 
 enlightened, wise, and must be sustained by us so long as 
 it remains embodied in the fundamental law. 
 
 Under the Constitution, the thing to be applied to the 
 enlargement of the canal is revenue — ^money. It is that 
 which is to be applied ; not something else, the product of 
 the use of that money. It is to be applied, moreover, in 
 each fiscal year. The application is not to be delayed by 
 accumulation, nor hastened by anticipation, but is to pro- 
 ceed year by year, using the revenues of the year for the 
 work of the year, until the canals shall be completed. We 
 are not at liberty so to construe the discretion conferred on 
 the Legislature as to the manner of application, as to bring 
 it into conflict with the time of application which the Con- 
 stitution expressly specifies. The act in question provides 
 that after 1854, the remainder of the revenues shall be ap- 
 plied, not to completing the .canals, nor conditionally in case 
 the canals shall then be completed, but absolutely to the 
 creation of a fund to pay canal revenue certificates and 
 interest thereon. If the canals should not be completed 
 befare that period', then the act and the Constitutioa are 
 
28 
 
 <iirectly im conflict ; the one declaring that the revenues shall 
 be applied to the completion of the work, the other that 
 they shall be accumulated in a fund for paying the certificates. 
 
 We might with entire confidence rest the determination 
 of these cases upon the grounds which ^ffe have already con- 
 sidered ; hut we think it proper also to consider the quegtiqn 
 whethter this act does not purport to authorize the creation 
 of a debt against the State, within the meaning of the pro- 
 hibitions contained m the 7th article of the Constitutiofl- 
 In considering that question, we will for the present omit 
 to take into account the latter part of the 14th section of 
 the canal act, because, if that has the effect ascribed to it by 
 the counsel who maintain the constitutionality of the law, 
 then it matters not what obligation the residue of the act 
 seems to create, though it be the incurring of a debt in the 
 most direct and unequivocal form. Even if the act and the 
 certificates contained a positive promise to pay, and a pledge 
 for payment of the faith of the State and of all its revenues, 
 this clause in the 14th section would, in their view, prevent 
 the act from being unconstitutional. Confining our atten- 
 tion at ppesent, however, to the inquiry, what obligations, 
 if any, are assumed by the State in case the provisions of 
 the act are constitutional, let us consider the extent and 
 nature of those obligations. For if the act creates any obli- 
 gation which is to be regarded as a debt, within the meaning 
 of the Constitution, then even if we might have thought the 
 scheme a mode of application, within the meaning of the 3d 
 section of the 7th article, looking at that section alone, we 
 should nevertheless be bound to construe the two sections 
 together, and hold that the 3d section did not intend to 
 authorize what the 12th section forbade. 
 
 If language has any meaning, the legal effect of the act, if 
 valid, is at least to devote so much of the surplus revenues 
 of the canals as shall actually be received after 1854, to the 
 creation of a fund to pay the canal revenue certificates and 
 the interest thereon. If this can be done in regard to one 
 source of revenue, ,we see no reason why the same thing 
 
29 
 
 friay not te done in regard to every source of revenue of the 
 State, including not only all revenue which may arise front 
 property, but also all which may be realized by t{ie exercise 
 of the power of taxation. Such an anticipation of revenue 
 would no more create a debt than this bill does. 
 
 It may be objected that there is a distinction between a 
 pledge of the revenues of property owned by the State, and 
 of the revenues to be derived from taxation; but the distinc- 
 tion does not affect the question. Whatever consumes the 
 revenues of the property of the State, tends to render a 
 resort to taxation necessary just to the extent to which the 
 revenues from property have been consumed. It is there- 
 fore a matter of entire indifference whether one or another 
 part of the resources of the State is drawn upon ; for the 
 substantial effect upon the financial condition of the State is 
 the same in either case. If the constitutional provision 
 against incurring debts permits such a scheme as this to be 
 effectual, it is of small moment to enquire what it prohibits ; 
 for it provides no practical restraint whatever upon the pow- 
 er of the Legislature. To attribute such an intention to 
 the Convention or to the people as to permit the one and 
 prohibit the other, is to attribute to them an entire incapacity 
 to comprehend the subject on which they were acting, and 
 the effect of their own language. It is construing the Con- 
 stitution as if it were a penal statute, or a disfavored agree- 
 ment in conflict with public policy, rather than as being th€ 
 supreme law of the State, prescribed by the immediate source 
 of all authority, lO set bounds to the power delegated to its 
 agents. We might on this branch of the subject rely wholly 
 upon the plain sense of the constitutional provision in ques- 
 tion ; but a brief examination will serve to show that the 
 obligations which purport to be created by this act consti- 
 tute in its ordinary sense a State debt. 
 
 National or State debts assume a great variety of forms. 
 Sometimes they take the most usual form of private debt — 
 an obligation to pay the principal at a specified period, with 
 ihterest in the meanti'me. Sometimes the period of pa:y- 
 
30 
 
 ffient of the principal is wholly at the election of the gov» 
 ernment ; while at others the government is at liberty to pay 
 at any moment after a fixed period. Sometimes the princi- 
 pal is not to be paid at all, but only a perpetual annuity^ and 
 sometimes only an annuity dependant on a life or lives, or 
 for years. In shorty these obligations assume every form 
 which can tempt the possessor of inoney to part with it to 
 the government, and are varied from time to time as one or 
 the other seems most likely to accomplish the purpose of 
 putting out promises and g«tting money in return. In all 
 these forms, one common attribute is found^ and one only, 
 viz : that in consideration of money advanced to the State, 
 the State promises whatever it is thought will be most likely 
 to procure money to be advanced, it matters not what ; and 
 that which is thus promised is a debt. It may relate only 
 to the income of particular property, or it may embrace the 
 whole resources of the State. The extent of the obligation 
 does not affect or qualify its nature. So loiig as there is an 
 obligation assumed by the State, it constitutes a debt— some- 
 thing due from the State. 
 
 Again, if in the natural and expected course of events a 
 period will come when the promises rnade by the certificates 
 in question will ripen into a perfect obligation on the part 
 of the State, then the issue of them conflicts with the prohi- 
 bition of the Constitution as clearly as if the debt arose im- 
 mediately upon their being signed. When remainders of 
 revenue from the canal shall have been received into the 
 Treasury of the State after 1854, the obligation of the State 
 will have become perfect to pay upon these certificates the 
 amount so received. It is true the payment cannot be made 
 without further legislative action, nor could it be if the cer- 
 tificates were immediate and general obligations on the part 
 of the State. An appropriation is always necessary to effect 
 actual payment, but the obligation is as complete without 
 the appropriation as with it. 
 
 There is another view in reference to the obligations as- 
 sumed by the State, which clearly shows that they amount 
 
31 
 
 to a debt. The 9th section of the act appropriates $540,000 
 to pay interest during the first two years. We have then 
 the certificates containing, in conformity with the 2d section 
 of the act, a promise to pay interest semi-annually, and aft 
 appropriation to pay that interest. If this does not make a 
 complete and perfect obligation, I am ,at a loss to conceive 
 what would. It is true that the Constitution authorizes 
 appropriations for two years, but it does not authorize the 
 creation of debts, and we are not at liberty so to construe the 
 power to make appropriations as to bring it in conflict with 
 the prohibition against creating debts. The appropriation 
 in this case is to be taken in connexion with the promise to 
 pay contained in the certificates, and the scheme of raising 
 money in which they form part of the machinery. Thus 
 viewed, the certificates, so far as the two years interest is 
 Concerned, are as complete obligations of the State to pay 
 ffioney, as the promissory note of an individual is an obliga- 
 tion upon him to pay money. It is, however, to be ob- 
 served that the 9th section, which makes the appropriations 
 in question for the payment of interest, directs the payment 
 to be made out of the avails of the sale of the certificates, the 
 premiums thereon, and the interest which may have accrued 
 On the deposit of such avails. On the other hand, the 8th 
 section, which contains the appropriations for two years 
 work upon the canals, directs the payments to be drawn 
 from the same sources, and also from the surplus revenues. 
 If the appropriation to the payment of interest had been di- 
 rectly from the general resources of the State, we have seen 
 that a debt would result. Does this indirect process alter 
 the effect 1 The moneys arising from the sale of certificates 
 are, when received, the property of the State. They can be 
 paid out only in virtue of an appropriation by law. The 
 persons who paid them to the State for certificates, no 
 longer retain any interest in or control over them. The 
 only ground on which a distinction can be suggested be- 
 tween payment from these funds in the hands of the State, 
 and from its general resources, is that such payment is re- 
 
32 
 
 funding part of the price of the certificates to the purchaser. 
 Besides the answer that the transaction was not originally 
 a sale of the certificates, (for an advance of money on the 
 original uttering of an obligation for the payment of money, 
 is never a purchase of the obligation, but always a loan,) it 
 is sufficient to say, that the ground taken is not warranted 
 by the provisions of the act. The amount which is to be 
 repaid to the purchaser or lender for principal, is not dimin- 
 ished by these payments under the appropriation in question. 
 It is not part of what he advanced which he is receiving 
 back, but a compensation for the use of what he advanced. 
 This compensation being payable by the State in all events, 
 creates a debt within the narrowest definition of that term 
 which was pressed upon us at the argument. 
 
 It remains to consider the effect of the last clause of the 
 14th section of the act. This provides as follows : " The 
 certificates to be issued under the act shall in no event or 
 contingency be so construed as to create any debt or lia- 
 bility against the State, or the people thereof, within the 
 meaning of section twelve, article seven of the Constitution." 
 The section of the Constitution referred to had already ren- 
 dered it impossible that the certificates should create any 
 debt or liability against the State, or the people, and a leg- 
 islative provision of this sort was not necessary for the 
 protection of that instrument. Is its effect to preclude us. 
 from inquiring whether the certificates, or the provisions of 
 the act taken in connection with the certificates, purport to 
 create a debt or liability against the State or the people 
 thereof? We think not. It does not alter, or profess to 
 alter, any one provision of the act. It leaves them all 
 standing on the statute book, with the apparent force of law, 
 and with the sanction of legislative approval, forming to- 
 gether a single scheme for raising money, on the faith of 
 which, capital is invited to assist the State. Under this 
 state of things, can we be asked to take the ground that the 
 State is to be regarded as coming into the money market, 
 with a cunningly devised plan of promises, seemingly effica- 
 
33 
 
 cious, but really known to be wholly unlawful and incapable 
 of conferring any legal right, and by such means seeking to 
 procure the advance of money ? The respect which we owe 
 to the Legislature forbids us to listen for one moment to the 
 suggestion. The claim in question is only a legislative 
 declaration of the meaning of the Constitution, and an injunc- 
 tion upon the courts to construe the act accordingly. If it 
 were to be regarded by us, and such effect given to it as 
 is contended for, then the most flagrant legislative violations 
 of the Constitution may always be screened from the scru- 
 tiny of the courts by the addition of this simple clause. A 
 single illustration will suffice to make the position plain 
 that this clause is not to be regarded in considering the va- 
 lidity of the act. Let us suppose an act of the Legislature 
 directing that A may make his certificate stating that a 
 mortgage from B to C is satisfied, and that upon such cer- 
 tificate being filed in the County Clerk's office where the 
 mortgage is recorded, the same should be satisfied and dis- 
 charged of record ; and further adding, that the said certifi- 
 cate should not be construed to impair the obligation of a 
 contract within the meaning of the Constitution of the United 
 States. Does any one think that such a law could be en- 
 forced, or that such a certificate would be any more effica- 
 cious to discharge the mortgage than a sheetof blank paper? 
 Its absurdity is too plain to admit of argument. Yet this 
 is the very case which we are co«side.ri5»g. 
 
 In conclusion, we have seen that the act under considera- 
 tion, in its material provisions and general scope, conflicts 
 with the Constitution of the State. Its provisions constitute 
 a single financial scheme", and must stand or fall together. 
 We have not been entrusted with the power of determining 
 whether the policy of the Constitution is wise or not. Nor 
 has any discretion been gi-ven to us to enforce its provisions, 
 or to refrain, as we may think the public welfare demands. 
 Our duty is simply to declare what we believe to be the 
 law, viz : that the act in question, being repugnant to the 
 Constitution, is void. 
 3 
 
34 
 
 The judgment of the Supreme Court in the case of the 
 people ex rel. Phelps v. Newell, should therefore be re- 
 irersed, and the mandamus refused, and the judgment in the 
 case of Rodman v. Munson should be affirmed. 
 
OPINIOI 
 
 OF JUDGE EDMONDS. 
 
 Edmonds, J. — Two questions are presented for our con- 
 sideration in this case : 1st. Whether the contracts made 
 by the letting Board are valid and complete without the ap- 
 proval of the Canal Board? And, 2d. Whether the law 
 itself is not void as repugnant to the Constitution 1 
 
 The first question is of minor importance — perhaps, if we 
 are correctly informed as to the action of the Legislature, of 
 no moment whatever, except as to its influence on the decis- 
 ion of this particular case. 
 
 I have examined it, however, and am inclined to believe 
 that the contracts were not valid, for want of the approval 
 of the Canal Board. 
 
 The twelfth section of the act directs the Canal Commis- 
 sioners, State Engineer, &c., to contract for the completion 
 of the Erie Canal enlargement, &c., upon such terms, and in 
 such manner as the Canal Board shall direct and approve. 
 
 The return to the mandamus shows that the Canal Board 
 have merely directed the terms in which the, subordinate 
 board shall contract, and that the Canal Board never have 
 approved of the manner in which their directions have been 
 carried out ; never have inquired in what manner they have 
 been attempted to be followed, nor whether they have not 
 been entirely disregarded. 
 
 It is evident to me that it was the intention of the statute 
 to require the judgment and decision of the Canal Board, 
 
36 
 
 and to commit to the subordinate board the mere executive 
 duty of carrying out such decision. It is in no other man- 
 ner that I can find aliment for the provision that the Canal 
 Board shall "approve." Their refusing to do more than 
 they have done, is, in effect, striking the word "approve" 
 out of the statute. It was their duty to do more than merely 
 direct the terms on which the contracts should be made. It 
 was necessary for them to approve the manner in which it 
 was proposed to contract. When they did that and approved 
 of the action of the other board, and not till then, were the 
 contracts valid and effectual. It is thus alone that full force 
 can be given to all the provisions of the statute. 
 
 The other question involves the constitutionality of the 
 law, and whether the contracts executed under it, even if 
 duly approved, would be valid 1 
 
 In examining this question, I shall inquire, 
 
 1. What is the scheme of the constitution 1 
 
 2. What that of the statute 1 And, 
 
 3. Whether they are repugnant to each other 1 
 
 And I enter upon the examination thorougly imbued with 
 the principles, that the task of determining that a law is void 
 by reason of its repugnancy to the Constitution, is at all 
 times one of extreme delicacy ; that it ought seldom, if ever, 
 to be done in a doubtful case ; that it is not on slight impli- 
 cation and vague conjecture, that the Legislature is to be 
 pronounced to have transcended its powers ; {Fletcher vs. 
 Peck, 6 Crunch, 128.) That it is only in express constitu- 
 tional provisions, limiting legislative power and controlling 
 the temporary will of a majority by a permanent and para- 
 mount law, settled by the deliberate wisdom of the nation, 
 that we can find a safe and solid ground for the authority of 
 courts of justice to declare void any legislative enactment ; 
 {Cochran vs. Van Sarlay, 20 Wend., 382.) That in constru- 
 ing the language of a Constitution we have nothing to do 
 with arguments ab inconvenienti, for the purpose of enlarging 
 or contracting its import, the only sound principle being, to 
 declare ita lex scripta est, to follow and to obey ; {People vs. 
 
37 
 
 Morrell, 21 Wend., 584.) That there is no safe rule for con- 
 struing the extent or the limitation of powers in a constitu- 
 tion other than is given by the language of the instrument 
 which confers them, taken in connection with the purposes 
 for which they were conferred ; {Gibbons vs. Ogden, 9 Wheat., 
 188.) And that the opposition between the constitution 
 and the law should be such that the judge feels a clear and 
 strong conviction of their incompatibility with each other. 
 (6 Cranch, 188; 1 Cowen, 564.) 
 
 When such an incompatibility is manifested, I agree with 
 Ch. J. Marshall, whose sentiments I have already quoted, 
 that the court, when impelled by duty to render such a judg- 
 ment, would be unworthy of its station, could it be unmind- 
 ful of the high obligations which that station imposes. 
 
 I proceed, then, to inquire. 
 
 What is the scheme of the Constitution in that part bearing 
 upon the question before us 1 
 
 In order properly to understand it, we must become ac- 
 quainted with the circumstances out of which its provisions 
 sprung, and upon which it was designed they should act. 
 
 The Erie and Champlain canals, extending a distance of 
 427 miles, were completed in October, 1823, so far as to 
 allow of their navigation to their whole extent. On the 1st 
 of January, 1825, it was ascertained that their cost had been 
 about $10,000,000, and the! State was then owing a debt, 
 contracted for their construction, am ounting to $7,467,770 99. 
 It was then already apparent that their revenues would be 
 sufficient to discharge that debt at an early period. And as 
 early as that date, there sprung up from these circumstances 
 two conflicting systems of canal policy, which have more or 
 less agitated our public councils for the last quarter of a 
 century. One of them proposed an extensive scheme of in- 
 ternal improvements, involving the construction of many 
 other canals, and the expenditure of many millions, which, 
 were to be obtained in the first instance by loans, ^and to be 
 repaid out of the canal revenues. The other deprecated the 
 creation of a debt, and insisted that such works could be 
 
38 
 
 safely undertaken and earned on only out of surplus reve- 
 nues as they should accrue. 
 
 As one or the other of these systems of policy prevailed, 
 and in the process of time each had by turns the ascendancy, 
 our works of internal improvement advanced or halted, pro- 
 ducing, however, in the mean time, as additions, the Cayuga 
 and Seneca, the Crooked Lake, the Chemung and the Che- 
 nango canals, adding many miles of canal to our public 
 works, and involving the expenditure of many millions more. 
 The means for these expenditures, also, were obtained by 
 loans. No one, at that day, was bold enough to advocate 
 the policy of an irredeemable debt, but all looked forward 
 to an early extinguishment of whatever might be contracted. 
 This sentiment prevailed in the Constitutional Convention 
 of 1821, and hence it was provided in the instrument which 
 they framed, that the debt then existing should be paid when 
 it became due, and that the revenues of the canals, including 
 the auction and salt duties, should be inviolably appro- 
 priated and applied to the completion of the navigable 
 communication between the great western and northern 
 lakes and the Atlantic Ocean, and to the payment of the 
 interest and the reimbursement of the capital of the money 
 already borrowed, or which should be borrowed to make 
 and complete them. (Constitution of 1821 , Art. III., §. 10.) 
 
 During the ten years that ensued from 1824, the construc- 
 tion of five other canals had been authorized, and the canal 
 revenues had already produced nearly enough to extinguish 
 the debt that was owing in 1825. 
 
 On the 1st of January, 1835, the Erie and Champlain 
 Canal debt was about $5,000,000 ; there was in the treasury 
 accumulated from the revenues about $3,000,000, and it was 
 evident that the revenues of the ensuing two or three years 
 would be more than sufficient to pay the whole of that debt 
 nearly ten years before it should become due. 
 
 At the same time the State owed a debt of over $2,000,000, 
 contracted on account of the lateral canals, whose construc- 
 tion, as already mentioned, had been authorized within 
 
39 
 
 the preceding ten years, and an additional debt of at least 
 ^1,000,000 was anticipated to be necessary for their com- 
 pletion. The general fund, out of which alone the ordinary 
 expenses of government were provided for, had been reduced 
 by various drains upon it, from about $5,000,000 to about 
 ^200,000, so, that it was evident that the ordinary ex- 
 penses of government, which amounted to about $450,000 a 
 year, must be provided for by a resort either to the canal 
 revenues, to a system of continual borrowing, or to direct 
 taxation. The duties on auctions and on salt, which at that 
 time amounted to $330,000 a year, and which by the Con- 
 stitution, had been pledged to the payment of the canal debt, 
 had been diverted for that purpose, from the general fund, 
 to which they had once belonged, and where they had per- 
 formed the office of contributing to defray the expenses of 
 government. By amendments proposed to the Constitution 
 in 1S32 and '34, and which were adopted in 1833 and '36, 
 those duties were released from the constitutional pledge, 
 and returned to their original avocation. So that in 1836, 
 the original canal debt was provided for, another canal debt 
 of about $3,000,000 had been authorized, the ordinary rev- 
 enues were not sufficient for the ordinary expenses of gov- 
 ernment, and the canals were yielding a surplus of revenue 
 (above the interest on the debt, and the expenses) of about 
 ^600,000 a year, with the certain prospect of continual 
 augmentation. 
 
 Under this state of things, the Legislature, at their session 
 of 1835, directed the Erie Canal to be enlarged and a double 
 set of lift locks to be constructed, and enacted that the cost 
 of constructing, completing and maintaining the works, 
 should be paid out of any moneys which might be on hand 
 belonging to the Erie and Champlain Canal Fund, and pre- 
 vided, that after 1837 the expenditures should be so limited 
 as to leave from the canal revenues besides the auction 
 and salt duties, an annual income to the State of at least 
 $300,000. Thus appropriating out of the revenues previ- 
 ously pledged to the canal debt, five or six hundred thou- 
 
40 
 
 sand dollars a year for the ordinary expenses of goTernment, 
 arid devoting the remainder of the revenues, when received 
 and " on hand," to the task of enlarging the canal ; and 
 clearly defining the policy of effecting the enlargement by 
 means of earnings actually on hand, and not by contracting 
 a debt for that purpose. 
 
 But in 1838 that'policy was abandoned, and instead of it 
 was adopted the policy of hastening the enlargement by 
 loans. The sum of $4,000,000 was authorized to be bor- 
 rowed that year, and that policy continued until 1842, when 
 the whole debt of the State, over funds on hand, which in 
 1835 had been about $4,500,000, was now $24,674,000. 
 
 In the mean time, the construction of two additional canals 
 had been authorized— rthe Black River Canal at an expense 
 of about $1,000,000, and the Genesee Valley Canal at the 
 cost of at least $2,000,000, and the moneys raised by loans 
 for their construction had been in part expended. In that 
 year (1842) the canal policy of the State again changed. 
 Alarmed at the magnitude of the debt already contracted, 
 and at the prospect of farther augmentation, the Legislature 
 directed all further expenditure on the public works, then 
 in the progress of construction, to be suspended, imposed a 
 tax on all the real and personal estate within this State, and 
 pledged one-half that tax to canal purposes, and so much of 
 the canal revenue as should be equal to one-third of the 
 interest of the canal debt as a sinking fund for the redemp- 
 tion of the debt thus contracted. 
 
 And when the new Constitutional Convention assembled 
 in 1846, the enlargement of the Erie Canal, and the con- 
 struction of the Black River and Genesee Valley Canals 
 were unfinished ; the total of the liabilities of the State was 
 $25,258,597.95 ; the canal revenues, derived from tolls and 
 Water rents since the completion of the Erie and Champlain 
 Ci^nals, had exceeded the expenditure, on account of them, 
 nearly $19,000,000; the nett revenue for the preceding 
 five years had averaged a fraction over a million and a half 
 dollars, with every reason to believe that in ten years time 
 
41 
 
 such nett revenue would exceed two millions and a quarter 
 a year. 
 
 It was under such circumstances, and for such a state of 
 things, that the Constitutional Convention of 1846 entered 
 Upon the duty of making permanent provision in relation to 
 the finances of the State. 
 
 Each of the conflicting systems of policy already men- 
 tioned had its friends and advocates in that body and among 
 'the people, and they were distinctly presented to view when 
 the Constitution was framed and adopted. 
 
 These considerations must necessarily be borne in mind 
 in examining the question now before us ; for without them 
 we cannot know what were the purposes for which the Con- 
 stitution granted its powers or imposed its limitations, nor 
 can we well comprehend the meaning or intention of the 
 provisions it contains. 
 
 Such, then, was the subject on which the Constitution 
 was to operate, and the next inquiry is : What was its 
 action on that subject"? What rights, powers and privileges 
 did it confer 1 And what obligations or restrictions impose 1 
 In answering these questions in a becoming spirit of can- 
 dor, it will never do to content ourselves with confining our 
 attention to detached portions of the instrument, but its 
 whole scope and tenor must be considered, and in such a 
 manner that full force must be given to all its provisions. 
 
 Nor will it, do .to invoke the aid of the familiar, though 
 not very well understood distinction between peremptory 
 enactments, which must at all hazards be obeyed, and direc- 
 tory ones, which may be disregarded with impunity. The 
 principle relative to directory statutes applied to a funda- 
 mental law, granting or limiting pow#r, would be fraught 
 with very dangerous tendencies. 
 
 Besides, when an enactment imposes an obligation to do 
 or to abstain, its language is always imperative. 
 
 Keeping these principles in view, we find that this was 
 the scheme of the Constitution : 
 
4a 
 
 1. That no debt for the purpose of internal improvement, 
 exceeding |1,000)000 should ever be contracted, unless 
 sanctioned by the people, not speaking through the Legis- 
 lature, but voting directly on the subject at a general elec- 
 tion; 
 
 2. That out of the canal revenues a certain amount should 
 be set apart each year as a sinking fund, to pay the interest 
 and redeem the principal of the canal debt then existing ! 
 
 3. That a certain portion of the canal revenues should be 
 set apart as a sinking fund, in like manner to redeem and 
 pay the other debts of the State, and not comprehended in 
 the term " canal debt." 
 
 4. That after paying those sums, a certain amount ($200,- 
 000) should be annually set apart to defray the ordinary 
 expenses of government; an amount not enough to meet 
 all those expenses, but thereby relieving the people in some 
 degree from the necessity of bearing direct taxation to carry 
 on the ordinary operations of the government; 
 
 6. That the remainder of the revenues of the canals, after 
 these objfects should be accomplished, should, in each year, 
 be applied to the purpose of enlarging the Erie Canal, &c. : 
 
 6i That after these debts were all paid, and those works 
 all completed, there should be a{)propriated annually from 
 the canal revenues a sum sufficient to defray all the expenses 
 of government, and thus relieving the people from any 
 taxation for that purpose for all time to come : 
 
 7. And that whenever any debt should be contracted under 
 the direct authority of the people, the same law which they 
 should approve should impose a direct tax sufficient to pay 
 the interest and redeem the principal within eif^hteen years. 
 
 Such in a few words and in plain terms, are the provisions 
 of the Constitution on this subject. The next inquiry is, 
 what are those of the act in question? 
 
 1. It appropriates the surplus revenues of the canal, for 
 the years 1851, 2, 3 and 4, directly to the work of enlarging 
 the canal, &.c. ; 
 
43 
 
 2. It authorizes, by its peculiar machinery of canal certifi- 
 cates, the officers of the State to borrow $9,000,000, within 
 three years, and expend that for the same purpose ; 
 
 3. It directs that sum to be returned within 21 years, and 
 in the mean time an interest, not over 6 per cent, be paid 
 on it; 
 
 4. It pledges the surplus revenues for that period of 21 
 years to the repajment of that sum of $9,000,000, and the 
 interest upon it ; and 
 
 5. It does not submit the question to the electors to be 
 passed upon directly at a general election, but instead of 
 that, declares that the certificates shall in no event or con- 
 tingency be so construed as to create a debt or liability 
 against the State or the people thereof, within the meaning 
 of the Constitution. 
 
 It only remains to inquire whether there is any incompat- 
 ibility between the statute and the Constitution. 
 
 1. This act of borrowing $9,000,000, and providing for 
 its repayment within a certain time, with interest for its uSe 
 in the mean time, seems to me to create a debt. No subtlety 
 of reasoning, no refinement of argument have been sufficient 
 to dispel from ray mind thisj)lain and simple idea. 
 
 It is said that it is not a debt, but merely anticipating the 
 resources of the State as derived from the Canals. Now, it 
 seems to me that all debt, whether by individuals or States, 
 is merely an anticipation of resources. 
 
 Then again, it is said that it is no debt, because only a 
 portion of the resources of the State are devoted to the re- 
 payment. Does the fact that every householder has certain 
 property that is not liable for the payment of his debts de- 
 stroy or even change the character of the obligation that 
 rests upon him to repay money that he has borrowed? 
 
 These, and such like suggestions, which were made to us 
 on the argument, have not had the effect to persuade me that 
 borrowing money is not contracting a debt. 
 
 And, if I read aright, the national debt of Great Brit- 
 ain, the existence of which no one probably will, at this 
 
44 
 
 day, deny — was begun in the precise manner adopted in this 
 statute. 
 
 Smith's Wealth of Nations, (Vol. 2, p. 449,) says that 
 " when the resource of borrowing on personal credit was 
 exhausted, and it became necessary, in order to raise money, 
 to assign or mortgage some particular branch of the public 
 revenue, government has done this in two different ways. 
 Sometimes it has made this assignment or mortgage for a 
 short period only — a year, or a few years, for example — and 
 sometimes for perpetuity. In one case, the fund was sup- 
 posed sufficient to pay, within the limited time, both princi- 
 pal and interest of the money borrowed; in the other it was 
 supposed sufficient to pay interest only, or a perpetual annu- 
 ity equivalent to interest. When money was raised in the 
 one way, it was said to be raised by anticipation — when in 
 the other, by perpetual funding. 
 
 " In Great Britain, the' annual land and malt taxes are 
 regularly anticipated every year, by virtue of a borrowing 
 clause constantly inserted into the acts which impose them. 
 The Bank of England generally advances at an interest, 
 which, since the revolution, has varied from eight to three 
 per cent, the sums for which those taxes are granted, and 
 receives payment as their produce gradually comes in. If 
 there is a deficiency, which there always is, it is provided 
 for in the supplies of the ensuing year. The only consid- 
 erable branch of the public revenues which yet remains un- 
 mortgaged is thus regularly spent before it comes in. Like 
 an improvident spendthrift, whose pressing occasions will 
 not allow him to wait for the regular payment of his reve- 
 nues, the State is in the constant practice of borrowing of 
 its factors and agents, and of paying interest for the use of 
 its own money." 
 
 If, then, it is a debt which this statute creates, it is in 
 direct violation of the Constitution, because it has never 
 been submitted to or passed upon by the people. 
 
 2. It seems to me that the payment of interest on bor- 
 rowed money, out of the canal revenues, was not intended 
 
45 
 
 by the Constitution, because it tends to retard the advent of 
 the period when the canal revenues can be applied to the 
 general support of the government. Under this law, $540,- 
 000 a year, for 21 years, must be withdrawn from those 
 revenues to pay interest on the $9,000,000 borrowed, and 
 to that extent the appropriation, under section 3 of article 
 7 of the Constitution, of $672,500 a year, to defray the 
 ordinary expenses of government, must be postponed or 
 affected, and to precisely that extent, a resort to direct taxa- 
 tion be rendered necessary to meet those ordinary expenses. 
 
 This consideration is not an unimportant one, for both in 
 and out of the Convention, and long prior to it, it was in- 
 sisted by a portion of the citizens of the State, that they had 
 derived no benefit from the canals, and yet funds belonging 
 equally to them as to others had been , expended for their 
 construction, until direct taxation was necessary to carry on 
 government, and they claimed that the canals should return 
 those funds to the treasury, at least to the extent of avoid- 
 ing taxation for the necessary expenses of government. 
 Hence the appropriation in section 3, article 7 of the Con- 
 stitution, of $200,000 a year to defray the necessary expenses 
 of the State, before any thing should be applied to the 
 enlargement of the canal, &c.; the provisions that if, after 
 eight years, the revenues unappropriated by that article 
 should not be sufficient to defray those expenses, without a 
 direct tax, the Legislature might appropriate $350,000 a 
 year from the canal revenues to those expenses; and the- 
 provision that when the canal debt should be paid and the 
 works completed, $672,500 annually should be forever de- 
 voted to the ordinary support of government. 
 
 Thus the Constitution provided, by a regard to all the 
 interests involved, and in a spirit of compromise, that the 
 debt should be paid, the works completed, and the people 
 at large be exempted from direct taxation, unless by a 
 direct vote, given at a general election, they should them- 
 selves impose such tax. 
 
46 
 
 And I entertain no doubt that it was the intention of the 
 Constitution to afford to the people of the State, in due time, 
 out of the canal revenues, a full protection against direct 
 taxation for the support of government, by appropriating 
 what the public works might yield, to that purpose. 
 
 Whatever may be our individual views of the policy that 
 prevailed in and characterized that instrument, it is our 
 solemn duty, as a court, sacredly to preserve its compromi- 
 ses. And it requires no argument to show that any act 
 diverting those revenues to the payment of interest, or any 
 other purpose, from that thus clearly defined in the Consti- 
 tution, must be in derogation of it. 
 
 3. The plain language of the Constitution in reference to 
 the surplus revenues is, that they "shall in each fiscal year 
 be applied to the enlargement of the canal," &c. 
 
 Does this authorize them to be anticipated, so that they 
 maybe expended before the fiscal year in which they accrue? 
 If it does, then, with equal propriety, they may be withheld 
 a series of years from the object to which they are devoted, 
 for if any deviation from the explicit injunction of the instru- 
 ment is to be tolerated, it may be as well in one direction 
 as another. 
 
 It seems to me that it was the intention of the Constitu- 
 tion to adopt fully the policy of 1835, and have the contem- 
 plated works carried on just as fast and no faster than funds 
 were actually on hand for the purpose ; and that it would be 
 as wrong for the State to delay the application of those funds 
 on the one hand, as it would be to anticipate them on the 
 other; as wrong to divert them to any other purpose as to 
 encumber and consume them by the payment of interest. 
 
 "It is the plain language of the Constitution which brings 
 me to this result, and here, as throughout, I am governed by 
 the rule laid down by the Supreme Court of the United States, 
 in Gibbons vs. Ogden, (9 Wheat. , 184,) that as men whose in- 
 tentions require no concealment generally employ the words 
 which most aptly and directly express the ideas they intend 
 to convey, the framers of the Constitution must be under- 
 
47 
 
 stood to have employed words in their natural sense, and to 
 have intended what they have said. 
 
 I have thus been conducted to the conclusion that this 
 statute, in its general scope and purposes, is incompatible 
 with the Constitution, and must be declared void. ^ 
 
 I have not been unmindful of the consequences that may 
 flow from such a result, and which were so strenuously 
 pressed upon our consideration by one of the counsel. I see 
 much in those anticipated consequences to awaken regrets, 
 but nothing to justify me in construing the Constitution oth- 
 erwise than according to its plain import. It would be a 
 dangerous principle to permit the consequences that may 
 flow from correcting an infraction of the fundamental law to 
 perforin the office of perpetuating such infraction. " The 
 Constitution and laws of a State are the basis of public tran- 
 quility, the firmest support of political authority, and a se- 
 curity for the liberty of the citizen. But this Constitution is 
 a vain phantom, and the best laws are useless, if they be not 
 religiously observed. The nation ought, then, to watch 
 very attentively, in order to render them equally respected by 
 those who govern, and by the people destined to obey." 
 
 Such is the duty which now devolves upon this court in 
 behalf of the State, and it ought to be performed with a 
 fidelity commensurate with its importance. 
 
CONSTITUTION OP THE STATE OF NEW YORK. 
 
 ARTICLE Vn. 
 
 Section 1. After paying the expenses of collection, superintendence and ordinary repairs, 
 there shall be appropriated and set apart in each fiscal year, out of the revenues of the State 
 canals, commencing on the first day of June, one thousand eight hundred and forty-six, the 
 sum of one million and three hundred thousand dollars, until the first day; of June, one 
 thousand eight hundred and fifty-five, and from that time the sum of one million and seven 
 hundred thousand dollars in ea6h fiscal year, as a sinking fimd, to pay the interest and redeem 
 the principal of that part of the State debt called the canal debt, as it existed at the time first 
 aforesaid, and including three hundred thousand dollars then to be borrowed, until the same 
 shall be wholly paid ; and the principal and income of the said sinking fund shall he sacredly 
 applied to that purpose 
 
 Sections. After complying with the provisions of the first section of this article, tiiere shall 
 be appropriated and set apart out of the surplus revenues of the State canals, in each fiscal 
 year, commencing on the first day of June, one thousand eight hundred and tbrly-six, the 
 sum of three hundred and fifty thousand dollars, until the time when a sufficient sum shall 
 have berai appropriated and set apart, under the said first section, to pay the interest and 
 extinguish tiie entire principal of the canal debt ; and after that period, then the sum of one 
 million and five hundred thousand dollars in each fiscal year, as a sinking fund, to pay the 
 interect and redeem tiie principal of that part of the State debt called the general liind debt, 
 including the debt for loans of the State credit to railroad companies which have failed to 
 pay the mterest thereon, and alsb the contingent debt on State stocks loaned to incorporated 
 companies which have hitherto paid the interest thereon, whenever and as far as any part 
 thereof may become a charge on the Treasury or General Fund, until the same shall be 
 wholly paid ; and the principal and income ot me said last mentioned sinking fund shall be 
 sacredly applied to the purpose aforesaid ; and if the payment of any jjart of the monies to 
 the said sinking fund shall at any time be deferred, by reason of the priority recognized in the 
 first section of this article, the sum so deferred, with quarterly interest thereon, at the thei» 
 current rate, shall be paid to the last mentioned sinkmg fund, as soon as it can be done cbn- 
 sistently with the just rights of the creditors holding said canal debt. 
 
 Section 3. After paying the said expenses of superintendence and repairs of the canals, and 
 the sums appropiiated by tiie first and second sections of this article, there shall be paid out 
 of the surplus revenues of the canals, to the Treasury, of the State, on or before the thirtieth 
 day of September, in each year, for the use and benefit of tiie General Fund, such sum, not 
 exceeding two hundred thousand dollars, as m ay be required to defray the necessary expenses 
 of the State ; and the remainder of tihe revenues of the said canals shall, in each fiscal year, 
 be applied^in such manner as the Legislature shall direct, to the completion of the Erie Canal 
 enlargement, and the Genesee Valley and Black River canals, until the said canals shall be 
 completed. J " 
 
 If at any time after the period of eight years from the adoption of this Constitution, the 
 revenues of the State, unappropriated by this article, shall not be sufficient to defray the 
 necessary expenses of the government, without continuing or laying a direct tax, the Legisla- 
 ture may, at its discretion, supply the deficiency, in whole or in part, from the surplus 
 revenues of the canals, after complying with tiie provisions of the first two sections of this 
 article, for paying the interest and extinguishing the principal of the Canal and General Fund 
 debt; but the sum thus appropriated from the surplus revenues of the canals shall not ex- 
 ceed annually three hundred and fifty thousand dollars, including the sum of two hundred 
 thousand dollars, provided for by this section for the expenses of the government, until the 
 General Fund debt shMl be extinguished, or until the Erie Canal enlargement and Genesee 
 Valley and Black River canals sh^l be completed, and after that debt shall be paid, or the said 
 canals shall be completed, then the sum of six hundred and seventy-two thousand five hundred 
 dollars, or so much thereof as shall be necessary, may be annually appropriated to defray 
 the expenses of the government 
 
 Section 4. The claims of the State against any incorporated company to pay the interest 
 and redeem the principal of the stock of the State loaned or advanced to such company, 
 shall be fairly enforced, and not released|0r compromised ; and the moneys arising from such 
 claims shall be set apart andapplied as part of the sinking fimd provided ii the second sec- 
 tion of this article. But the time limited for the fulfillment of any condition of any release 
 or compromise heretofore made or provided for, may be extended by law. 
 
 Section 5. If the sinking funds, or either of them, provided in this article, shall prove 
 insufficient to enable the State, pn the credit of such ftind, to procure the means to satisfy 
 the claims of the creditors of the State as they become payable, tiie Legislature shall, by 
 equitable tastes, so increase the revenues of the said funds as to make tnem, respectively, 
 
49 
 
 aiitficicut perfectly to preserve the public faith. Every contribution or advance to the canala, 
 or their debt, from any source, other than their direct revenues, shall, with quarterly interest, 
 at the rates then current, be repaid into the Treasury, for the use of the State, out of the 
 canal revenues as aoon as it can be done consistently with the juat rights of the creditors 
 holding the said canal debt. 
 
 Section 6. The Legislature shall not sell, lease, or otherwise dispose of any of the can^ 
 of the State ; but they shall remain the property of the State and under its management 
 forever. 
 
 Section 7. The Legislature shall never sell or dispose of the salt sprmgs, belonging to this 
 State. The lands contiguous thereto and which may be necessary and convenient for the use 
 of the salt springe, may be sold by authority of law and under the direction of the com- 
 missioners of the land office, for the purpose of investing the moneys arising therefrom in 
 other lands alike convenient ; but by sUcn sale and purchase the aggregate quantity of these 
 lands shall not be diminished. 
 
 Section 8. No 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 pursuMice 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 appropriation, or continuing or reviving 
 an appropriation, shall distinctly specify the sum appropriated, and the object to which it ia 
 to be applied ; and it shall not be sufficient for such law to refer to any otiier law to fix such' 
 sum. 
 
 ' Section 9, The credit of the State shall not, in any manner, be given or loaned to, or in aid 
 of any individual association or corporation. 
 
 Section 10 The State may. to meet casual deficits or failures in revenues, or for expenses 
 not provided for, contract debts, but such debts, direct and contingent, singly or in the aggre- 
 rate, shall not at any time exceed one million of dollars ; and the moneys arising from the 
 loans creating such debts, shall b« applied to the purpose for which they were obtained, or to 
 repay the debt so contracted, and to no other purpose whatever. 
 
 Section H. In addition to the above limited power to contract debts, the State may contract 
 (labts to roppl invasion, suppress insurrection, or defend the State in war ; but the money 
 ;irising from the cuntructing uf such debts shall be applied to the purpose for which it was 
 raised, or to repay such debts, and to no other purpose whatever. 
 
 Section 12, Except the debts specified in the tenth and eleventh sections of this article, no 
 debt shall be hereaftei- contracted by or on behalf of this State, unless such debt shall be 
 authorized by a law, for some single work or object, to be distinctly specified therein ; and 
 such law shaU impose and provide for the coUeciion of a direct annual tax to pay, and 
 sufficient to pay the interest on such debt as it falls due, and also to pay and discharge the 
 t^rincipal of such debt within eighteen years from the time ot the contracting thereof. 
 
 No such law shall take eSect until it shall, at a general election, have been submitted to the 
 people, and have received a majority of all the votes cast for and against it, at such election. 
 
 On tiie final passage of such bill in either house of the Legislature, the question shall be 
 takbn by ayes and noes, to be duly entered' on the journals thereof, and shall be : " shall 
 this bill pass, and ought the same to receive the sanction of the people T' 
 
 The Legislature may at any time, after the approval of such law by the people, if no debt 
 shall have been contracted in pursuance thereof repeal the same ; and may at any time, by 
 lawj forbid the contracting of any iurther debt or liability imder such law ; but the tax im- 
 posed by such act. In proportion to the debt and liability v^hich may have been contracted, 
 in jjursuance of such law, shall remain in force and be irrepealable, and be annually collected, 
 until the proceeds thereof shall have made the provision herein before specified to pay and 
 discharge the interest and principEd of such debt and hability. 
 
 The money arising from any loan or stock creating such debt or liability, shall be applied 
 to the work or object specified in the act authorizing such debt or liability, or for 'the repay- 
 ment of such debt or habihty, and for no other purpose whatever. 
 
 No such law shall be submitted to be voted on, within three months after its passage, or 
 at any general election, when any other law, or any bill, or any amendment to the Constato- 
 rion shall be submitted to be voted for or against. 
 
 Section 13. Every law which imposes, continues or revives a tax, shall distinctly state the 
 tax and the object to which it ia to be applied ; and it sh^ not be sufficient to refer to any 
 other law to fix such tax or object. 
 
 Section 14. On the final passage, in either house of the Legislature, of every act which 
 imposes, continues or revives a tax, or creates a debt or charge, or makes, continues or re- 
 vives any appropriation of public or trust-money, or property, or releases, discharges, or 
 commutes any claim or demand of the State, the question shall be taken by ayes and noes^ 
 which shall be dul^ entered on the journals, and three-fifths of all the members elected to 
 either house, shall, in all such cases, be necessary to constitute a quorum therein.