combatted by every resource at our command. Especially should members of our own noble profession avoid being lulled into inactivity by their convictions that, because the recall is so revolutionary, therefore it is impossible; for the real character and effect of the doctrine is more clear to us than to those who have fewer occasions to consider the importance of maintaining the balance of the different parts of the Constitution. It will not do to content ourselves with reiterating the formula that the judiciary must be independent and the restraints of the Constitution must be preserved. We must be prepared also to give reasons and stimulate thought among the people. This is a task that the lawyer can perform intelligently, sympathetically and patriotically. He need surround the courts with no undue sanctity, for none better than he should know that judges are human, that in their administration of justice their acts should be subjected to the closest scrutiny, and that if their procedure is too slow or too expensive or too technical, it should be rigidly reformed. But he also knows that the preservation in our governmental system of an absolutely independent judiciary as a restraint upon the too impulsive or the too frequent exercise of the supreme political power is essential to the continued life of the nation; and he should not grow weary in conveying that message to his fellow citizens.

STATE CONTROL OF NAVIGABLE WATERS

XI

STATE CONTROL OF NAVIGABLE WATERS 1

A RECENT issue of the Review 2 contained a discussion of the decision of the Court of Appeals in the case of Long Sault Development Company v. Kennedy. A consideration of the effect of that decision upon the development of our waterways for commercial purposes may have some interest.

In 1907 the legislature passed an act incorporating the Long Sault Development Company and authorizing it to construct a gigantic dam across the St. Lawrence River, at the famous Long Sault Rapids.* The project contemplated the expenditure of $35,000,000 in the improvement of navigation and the creation of a water power capable of generating electrical energy to the extent of four or five hundred thousand horse power. Governor Hughes refused to sign the bill as it was first passed by the legislature because it did not provide for participation by the state in the profits of the enterprise. Accordingly it was redrawn so as to provide that after 1911 a minimum annual payment of $25,000 should be made to the state, and that after the power plant was in operation the state should receive at the rate of 25 cents per clectrical horse power generated in excess of 100,000 of such horse power. Thus amended the act was passed and signed by Governor Hughes. Besides paying annually the amounts prescribed by the act, the company has expended nearly

1 Reprinted from Columbia Law Review for May, 1915.

2 Columbia Law Review, 68.

3 (1914) 212 N. Y. 1. The case has been taken on writ of error to the Supreme Court of the United States.

4 N. Y. Laws of 1907, c. 355.

a million dollars in acquiring land and riparian rights, and in engineering and other expenses in preparation for the work of construction. The right of the company to commence work was expressly conditioned upon its obtaining the consent of Congress. Such consent has not been obtained, although the company has made efforts to obtain it.

In 1913, the legislature passed an act 5 purporting to repeal the charter of the company upon four grounds, three of which assert the unconstitutionality of the charter and the fourth that it was beyond the power of the legislature to authorize the transfer of land under the waters of the St. Lawrence River as they were held in a sovereign capacity." The Appellate Division of the Third Department found that none of these four 5 N. Y. Laws of 1913, c. 452.

6 "Section 1. Chapter three hundred and fifty-five of the laws of nineteen hundred and seven, is hereby repealed, upon the following grounds:

"First. That chapter three hundred and fifty-five of the laws of nineteen hundred and seven is unconstitutional in that it contravenes section eighteen of article three of the state constitution, which provides that the legislature shall not pass a private or local bill granting to any private corporation, association or individual any exclusive privilege, immunity or franchise whatever.

"Second. That the said act is unconstitutional in that it contravenes section seven of article seven of the state constitution, which provides that the lands of the state now owned or hereafter acquired, constituting the forest preserve, as now fixed by law, shall be forever kept as wild forest lands, and shall not be leased, sold or exchanged, or taken by any corporation, public or private.

"Third. That the said act violates section sixteen of article three of the state constitution, which provides that no private or local bill, which may be passed by the legislature, shall embrace more than one subject, and that shall be expressed in its title.

"Fourth. That the said act is invalid as being in excess of the powers of the legislature, in that it attempted to provide for the alienation of the state to the Long Sault Development Company of title to the land in the bed of the St. Lawrence River. The title of the state in those lands is a sovereign right rather than a proprietary title. It is inconsistent with that right, which must be exercised for the benefit of the whole people, that the title to the bed of a navigable stream should be granted in fee to a private corporation."

N. Y. Laws of 1913, c. 452.