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No. 135.

IN CONVENTION

November 21, 1867.

COMMUNICATION

FROM ATTORNEY GENERAL IN REPLY TO RESOLU. TION OF CONVENTION IN RELATION TO CONTRACTS ON THE CANALS OF THE STATE.

STATE OF NEW YORK :

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ALBANY, November 13, 1867. Hon. WM. A. WHEELER, President of the Constitutional Convention :

I have the bonor to acknowledge the service on me of a resolu. tion of the Constitutional Convention, adopted on the 12th of September last, relating to certain contracts for the repairs of the State canals, and my official duty in the premises.

The resolution was not cornmunicated to me until after your recent adjournment.

Actuated by bigh consideration and respectful regard for the Con. vention, I have given deliberate and careful examination to the subject of the resolution.

I am convinced that no useful end could be subserved by insti. tuting actions to vacate the contracts referred to, without the [Con. No. 135.)

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authority and sanction of the Contracting Board. While that board should continue to recognize the validity of the contracts, and adhere to them in the management of the canals, any action which I might institute against the contractors alone would have no practical effect. I think the Convention will comprehend the difficulty in supporting my right to maintain an action against the Contracting Board, to regulate and direct their executive discretion, confided to them by law over the management of the canals. No action, having such purpose, could be concluded before the next session of the Legislature, and certainly no court would assume the prerogative to withdraw the subject of the canal repairs from the contractors and Contracting Board, and confer it upon an officer of the court during the pendency of the action.

The suggestion of the confusion and disorder attendant

upon

such a mode of redress for the alleged frauds, is enough, I think, to justify me in declining to commence actions on my own motion alone.

Entertaining these views I addressed a communication to the Contracting Board, covering the resolution of the Convention ; suggesting the difficulties in my way, and that they could be removed by the coöperation of that board in actions which I was ready to institute, immediately on receipt of their resolution"requesting me to do so.

Herewith I transmit a copy of my letter to the Contracting Board, and their answer thereto refusing to coöperate, for the information of the Convention, and, as an explanation, respectfully submitted, why, in my judgment, it is expedient to remit the proceedings sug. gested by the Convention to the Legislature at its next session.

That body will have ample authority over the subject, including the impeachment of culpable “State officials," and can prescribe the course and remedy to be pursued.

With high respect,
Your obedient serv't,
JOHN H. MARTINDALE,

Attorney-General.

STATE OF NEW YORK

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ALBANY, October 9th, 1867. To the Contracting Board of the State of New York:

GENTS: I deem it my duty to transmit to you the following resolution of the Constitutional Convention, and which has been officially communicated to me:

"IN CONSTITUTIONAL CONVENTION,

STATE OF NEW YORK.

ALBANY, N. Y., Sept. 12, 1867. On motion of Mr. Archer,

Whereas, it appears by authoritative testimony on the files of the Convention that a corrupt combination was entered into in December last by the bidders for certain contracts for the repairs of the State canals, whereby such contracts were given to the highest bidders instead of the lowest as the law contemplates, thereby involving the State in un warrantable and wasteful expenditures; therefore,

Resolved, That in the opinion of this Convention, the Attorney. General ought immediately to commence legal proceedings to vacate such contracts for fraud, and to take such proeeedings in relation to officials of the State implicated, if any, which shall vindicate the honor of the State and protect its interests in the future.

By order,

LUTHER CALDWELL,

Secretary

The laws of the State in the distribution of administrative duties bave confided the subject of making contracts for repairs on the canals to the Contracting Board; of that board I am not a member, nor am I invested, as Attorney-General, with any supervision over their proceedings which will authorize me to interfere with their acts in matters within their exclusive jurisdiction. To get a standing in court which will enable me to proceed without doubt or question against the contractors to vacate their contracts for the fraud and “ corrupt combination " between “ bidders," referred to in the resolution of the Convention, I think a resolution of your board is desirable, perhaps indispensable, authorizing and directing me to institute legal proceedings.

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