The Committee adjourned to Tuesday the 13th August, 1867, at 10 A. M. ALBANY, N. Y., August 13, 1867. The Committee met pursuant to adjournment at 10 A. M. Present-Senator STANFORD and Mr. MITCHELL, counsel to the Committee. John H. Martindale, called as a witness, and being duly sworn, testified: By Mr. MITCHELL. Q. Are you the Attorney General of the State? A. I am. Q. Have you examined a bond accompanying the bid of Mr. Ebenezer Kingsley for repair work, marked No. 50? A. I have examined a portion of this paper marked No. 50. Q. Will you state what your judgment is as to whether there has been any signature of the Supervisor below the County Judge's signature? A. So far as I have ability to judge I should say that there had been no signature appended to it. Q. Have you examined it with a glass? A. I have not. Q. You have simply examined it with the naked eye? A. With glasses I habitually wear. Q. But not with a strong glass? A. I have not, nor am I an expert in respect to the questions addressed to me. Q. You feel clear that there has been no signature there? A. So far as I have means of judging, and I put the answer in that qualified form because I never had in my life occasion to examine a paper to which chemicals had been applied to ascertain how thor. oughly the signature had been displaced. Q. How long have you been Attorney General of this State? A. Since the first of January, 1866. Q. You are not a member of the Contracting Board by virtue of your office? A. I am not. Q. But you are of the Canal Board? A. I am. Q. Are you aware of the practice that has existed in this State at the canal lettings, of bids being opened when a full Board was not present, and then adjourning over until a full Board could be had to grant the contracts? A. I am not aware of any practice in that respect. On a certain occasion, I think, I do know of some postponements after the receipt of bids before they had been allotted. Q. That is the business of the Contracting Board? A. Entirely. Q. With that you have nothing to do? A. Nothing. Q. Now, sir, I ask you, assuming that the practice has been to receive bids at different points in the State-to receive bids when only a portion of the Board was present, not sufficient to enter into the contract by law, whether they would have power to adjourn over, postpone, and then consider and execute the contract afterwards? A. On such a question I would find it necessary to look to the statutes, and I am not prepared now to give to you an answer satisfactorily to myself. On some occasion, the one to which I have adverted, I think I was applied to, to know whether a motion to reconsider some conclusion arrived at might be entertained, and I think I gave an opinion that a motion might be made to that effect, but even in that respect I may be in error, for it was a hurried application. Q. Assuming that that power existed, when only one Commissioner was present and received the bids, and a postponement was made to Albany from Buffalo, where the bids were put in, for a couple of days for a full Board to examine and to pass upon the legality of the bids and to award the contracts, as the law officer of the State, do you think it would be proper, within the interim of that postponement, to allow any inspection of the bids by interested parties? A. No, sir. Q. After the bid is put in it comes under the control of the State or of the State officer who has charge, until it is passed upon? A. I should say so. I should say that the practice and the law that requires the presentation of these bids in sealed envelopes, would imply, without anything further, that they were to be submitted for the inspection, examination and determination of the Board without communication with outside parties. Q. Has it been the practice of the Canal Commissioners to receive these proposals at the advertised place without a full Board, and there opened by the Commissioner on the section, and whatever bids were made by the different contractors there proclaimed aloud by the parties at the time and canvassed? A. I have no knowledge of the fact. Q. You have heard of the De Graw award, have you not? A. Yes, sir; I have heard of the De Graw award, and yet I recognize it by the name of "De Graw award;" I am familiar with the award which has that designation; I have heard of it, and participated in the consideration before the Canal Board in respect to it. Q. You had nothing whatever to do with the passage of the law by the Legislature or the taking of the testimony by the Committee of the Canal Board? A. I had nothing to do with the passage of the law; I had nothing to do with the examination by the Committee appointed to take that testimony except so far, perhaps, as to vote in the Board for a reference to a Committee to make the examination. I am not certain I did that, but I may. Q. That Committee, of course, made their report to your Board? A. Yes, sir. Q. Then what action followed? A. According to my present recollection, the evidence in the case was reported by the Committee; I do not remember that any additional testimony was received before the Board, yet I may be in error in respect to that; after this testimony was received there was then consultation by the members of the Board as to the liability of the State under the provisions of the law referring it to the Board, and the case was disposed of under that evidence and that law-the interpretation given to it. Q. Then what? A. Then the decision was made. Q. Who was the Committee that took that evidence-do you recollect? A. The Chairman of that Committee I remember, I think it was Lieutenant-Governor Alvord, but whether anybody was associated with him, and who, I do not recollect. Q. You recollect the Chairman? A. I recollect the Chairman being Mr. Alvord. Q. Did that Committee report the amount that they thought should be awarded to Mr. De Graw? A. I don't remember. Q. Independent of the statute, what was your opinion as to the liability of the State? A. That there was no liability. Q. Did you take that ground in the Board? A. I can't remember. I made some report about that time on the question of liability, and the report is of record. The effect of it was that there was no liability on the part of the State except in the cases, where, by legis [CON. No. 95.] 7 lative acts, a liability was assumed, as in a case of a claim against either an individual or a corporation, and I took the further ground that this immunity of the Government-the State from liability— rested not only upon the character of the State as sovereign but also on the grounds of public policy. Q. Is it your opinion, at this time, that there was no liability upon the part of the State to pay damages in the De Graw case-no original liability? A. No original liability without the statute; I have no doubt about the want of liability. Q. Is there anything that you can give to this Committee that would be of service to the State, as to any irregularities or frauds that have been committed against the State in the management of its canals, if so, we leave it for you to give any light that would be of benefit to the Committee or the people of the State at large? A. I don't recall a circumstance or a fact to which I could testify that would afford that information. Selden E. Marvin, called as a witness, and being duly sworn, testified: By Mr. MITCHELL. Q. Where do you reside? A. Auburn. Q. What position do you hold? A. Adjutant-General of the State. Q. Have you examined exhibit No. 50, in reference to ascertaining whether the Supervisor ever signed the certificate below the county judge? A. Yes, sir. Q. What is your opinion as to whether there was or was not a signature? A. In my judgment I should think there never was a signature there. Q. Have you ever had any experience in regard to extracting names with chemicals? A. No, sir. Q, Could you form an opinion as to whether it might or might not be done by chemicals? A. No, sir; the ingenuity of man is so wonderful now-a-days. Q. You are not familiar with it? A. No, sir; from the appearance of the paper I should say it was not extracted. Q. You judge from the appearance of the paper, that there never has been any writing below the County Judge's name? A. Yes, sir. Q. Have you ever been a member of the Canal Board? A. No, sir. Q. Or of the Contracting Board? A. No, sir. Q. I will ask you to state whether the name "Joseph Ingham, Supervisor," is in a different handwriting from the handwriting that filled up the certificate? A. Yes, sir, I should think it was. Q. And also different from the County Judge's handwriting? A. Yes, sir. Q. Whether that is the genuine handwriting of Ingham or not you don't know? A. No, sir. James E. Pomfret, called as a witness, and being duly sworn, testified: By Mr. MITCHELL. Q. What is your profession? A. I am a physician. Q. In Albany? A. In Albany. Q. Have you examined this exhibit No. 50? A. I have, sir. Q. What is your opinion as to whether there has been any name below the county judge's name on that paper? A. My opinion is, there has been no name there. Q. Are you a chemist? A. I am. Q. How have you examined it? A. I have only examined it by the eye. I have not looked at it with a glass or submitted it to any chemical test. I should say it never had been submitted to a chemical erasure. David P. Forrest, a witness recalled, and testified as follows: By Mr. MITCHell. Q. I think I asked you upon the other occasion when you were before the Committee whether you had ever allowed an inspection of these bids between the time of their being put in, and the time of the contract being awarded except in the case of Kingsley's bid, and I understood you to say you had not? A. No, I said I thought I had shown some of those papers to other persons. Q. Who to? A. Well, I don't recollect; I stated so before. Q. Contractors? A. Yes, sir; who they were now, I don't recollect. Q. Do you know Mr. Holbrook of Sandy Hill? A. Yes, I know him. Q. Did he ask you to let him look at his bid after the award was made and you refused to do so? A. I don't recollect. Q. Did you ever refuse to let Mr. Holbrook see his bid after it |