FIRST REPORT TO THE GOVERNOR[3]

"_To his Excellency the Governor, and to the Honorable

the Legislature of the State of New York_:

"The undersigned commissioners, appointed by the Governor, with the

advice and consent of the Senate, under a concurrent resolution

of the Legislature adopted on the 31st day of March last, 'to

investigate the affairs of the canals of the States, and especially

the matters embraced in the special message of the Governor,

communicated to the Legislature on the 19th day of March, 1875,'

have the honor to submit the following report of the progress of

their investigations:

[3] The previous reports of which this is a synopsis were made to

the Legislature.

"Your commissioners, assembled at the capitol, qualified and

organized on the 12th day of April, 1875. The interval between that

time and the opening of the canals, a period of about six weeks,

was devoted exclusively to an examination of the most important

works in progress, or recently completed in the prism of the canals.

When this examination was interrupted by the introduction of water,

near the end of May, your commission returned to the capitol and

proceeded to supplement and enlarge the area of their information by

the examination of witnesses.

"In this work they were unexpectedly embarrassed by a decision of

one of the judges of this district, at Special Term, denying to

them a power, which they supposed to have been conferred upon them

by the legislative authorities, to require the production before

them of the books and papers of witnesses. They directed an appeal

to be taken from this decision, and it was finally reversed at the

General Term, but not until late in the month of November, till when

your commission was obliged to contend with all the inconveniences

resulting from the privation of such a necessary and indispensable

prerogative. The opinion of Justice Learned at the Special Term,

and that of Justice James at the General Term, are annexed to this

report.

"On the 31st of July the commission submitted their first annual

report to the Governor. It relates to a contract for substituting

slope and vertical for bench wall between Port Schuyler and the

lower Mohawk aqueduct. This report was followed at intervals by

eleven others, entitled, respectively, as follows:

"Second report.--H. D. Denison's contract east of the city of Utica.

"Third report.--Hulser's bridge contract.

"Fourth report.--Willard Johnson's lower side cut lock contract at

West Troy.

"Fifth report.--Buffalo contracts and legislative awards.

"Sixth report.--Champlain enlargement; Bullard's bend contract.

"Seventh report.--Buffalo contracts and State officers.

"Eighth report.--The Baxter award.

"Ninth report.--Contract of E. W. Williams for building vertical

wall at Rome.

"Tenth report.--Flagler & Reilley's pending contract at Fort Plain.

"Eleventh report.--Jordan level contracts.

"Twelfth report.--The auditor's traffic in canal certificates.

"A copy of these several reports, together with the testimony taken

before the commission, covering together 2927 pages, are submitted

with this report.

"Several other reports are in course of preparation. One on the

Glen's Fall feeder, a second on the Canal Appraiser's ice awards

at Rochester in 187_, and a third on the W. C. Stevens contract

assigned to Denison, Belden & Co., for dredging the Albany basin,

dated December 31, 1866, will be submitted at an early day.

"Though we have given this investigation our most unremitting and

exclusive attention, we not only have not exhausted the subject, but

there are many matters falling within the range of our inquiry which

we have only been able to touch incidentally. Among these we regret

that the subjects of 'ordinary repairs,' the lateral canals, and the

present system of appraising canal damages are included.

"As we have been able to examine only a limited portion of the work

done on the canals since 1868, of course we have found it impossible

to extend our inquiries beyond that year, though we have abundant

evidence that the mismanagement of the canals dates from a much

earlier period. But the results of our investigation--incomplete

as any investigation made in so short a time must necessarily

have been--will, we think, suffice to indicate with tolerable

distinctness what have been the more mischievous errors in the

management of our canals, and some of their more obvious correctives.

"We propose to-day to submit to you such of the conclusions as we

have reached, with all the testimony we have taken, reserving for a

later day some further recommendations which are under consideration.

"Introductory to such conclusions as we are now prepared to submit

to you, it is proper that we first invite your attention to the

character of our canal property as an investment, and show precisely

how it stands upon the books of the State.

The total revenues from our system of canals at the close

of the last fiscal year, including gains resulting from

the management of the sinking fund, amounted to $138,507,129.91

Total payments for canal purposes up to same period,

including construction 167,003,357.91

--------------

Excess of cost over earnings $28,496,228.00

"This sum of $28,000,000 and upwards represents the premium which

the people of this State have paid in taxes during the last

fifty-odd years to secure and encourage the use of these waterways

for purposes of transportation, the equivalent of an annual subsidy

of over $560,000.

The tolls received from all the canals during the fiscal

year ending September 30, 1875, amounted to $1,902,990.64

There were expended for repairs and maintenance

during the same period $2,247,297.01

Damages during the same period 305,796.68

---------- 2,553,093.69

------------

Balance against the State $650,103.05

"If to this be added the interest on the canal debt, the cost of

collection, and the difference between miscellaneous expenses and

receipts, as set forth in detail in Exhibit B, the loss to the State

from the canals during the last fiscal year will be found to amount

to the enormous sum of $1,412,470.79.

"The cost of repairs and maintenance is so obviously out of all

proportion with the necessities of a system of completed structures

like our canals, which have little that is complicated or perishable

about them, that we are forced to seek the explanation of it in

their administration.

"Our investigation was not long in revealing the fact that the

canals have not been managed upon the principles which would govern

any man in the administration of his private estate. The interests

of the public have been systematically disregarded. The precautions

with which the Legislature has attempted to defend this property

from peculation and fraud, and secure for it faithful and efficient

service, have been deliberately and persistently disregarded; while

the responsibility of its agents has been so divided and distributed

as to leave the State comparatively remediless and at the mercy of

the predatory classes, who have been, if they do not continue to be,

a formidable political power.

"The more conspicuous evidences of mismanagement which our

investigation has disclosed may be divided into three categories:

"_First_, as to the modes of letting contracts.

"_Second_, as to the modes of measuring and estimating work to

the contractors.

"_Third_, as to the facilities for procuring legislative relief.

"_First_, as to the mode of letting the contracts:

"It seems to have been the practice for years to let contracts

upon conditions which exclude honest contractors and confine this

business, at least as to what are termed 'extraordinary repairs,'

almost exclusively to large capitalists. The large deposits required

from contractors discouraged bidders with small means, while the

encouragement offered to unbalanced bidding, by a neglect to enforce

the faithful performance of the provisions of the contract, have

a tendency to exclude all who bid fair prices, with the honest

intention of giving the State fair work for them. Till since the

commencement of this investigation we do not know of a single

instance in which any forfeiture of his deposit had been enforced

against any contractor; while we believe we do no one any injustice

in saying that no contract has been let since 1868 the provisions of

which have been properly complied with.

"There has been a corresponding disregard of all the provisions of

law regulating the letting of the contracts. The law wisely required

a preliminary survey, with maps, specifications, and estimates to

be made by the division engineer, approved by the State Engineer

and by the Canal Board, before a contract could be let. The purpose

of these precautions was to ascertain the amount and probable cost

of the work as a means of determining the relative merits of the

respective bids, and to serve as a protection against false or

erroneous estimates of engineers. These precautions have been almost

universally neglected. The result has been that the amount of work

and materials required in the actual construction varied so widely

from the quantities let that in nearly every instance the person

receiving the contract proved in the end to have been the highest

instead of the lowest bidder;[4] and we cannot resist the conclusion

that these precautions in many instances were neglected with the

intent to afford greater facilities for defrauding the State. These

evils have been greatly aggravated by the frequent changes of the

engineers on the canals and the loss of knowledge as to work done,

which the removed engineers carried away with them.

[4] A striking illustration of this may be found in the first report

of this commission to the Governor, on the Port Schuyler and lower

Mohawk aqueduct contract.

"_Second_, as to the mode of measuring and estimating work to the

contractors:

"This responsible duty, involving, as it should, a perfect

familiarity with the terms of the contract and with the character

of the work in progress, has been devolved, not by law, but in

practice, entirely upon assistants who are not sworn; who, but in

few instances, have been found to possess a competent knowledge of

engineering; and who, in most cases, appear to owe their positions,

and therefore to have been in a greater or less degree dependent

upon the political favor and influence of the contracting class. It

will be hardly a matter of surprise, therefore, that in not more

than a single instance that has come under our scrutiny have we

found the work faithfully measured, or a single contract closed,

under which the contractor has not received more than he was

entitled to.

"Under these influences, operating in favor of the contractor and

to the prejudice of the State, a system of fraudulent estimates

and measurements has become so established that though in direct

and flagrant violation of the very language of the contract, it is

deliberately defended by those who profit by it, on the ground that

it has been sanctioned by long usage. For example: it has been a

practice of the engineers to allow the contractor for excavating

behind vertical wall, on a slope of one to one, without regard to

the necessity for such excavation, and whether the excavation was

made or not.

"As nearly all vertical wall is constructed in the winter or early

spring, and when the banks are frozen, the cut is usually vertical

or nearly so, and any charge for such excavation is a fraud upon

the State. The contracts also uniformly provide that the contractor

shall be allowed nothing for the filling in of the place supposed to

be excavated behind the walls, if such filling is from earth already

paid for as excavation, unless he is obliged to draw his material

more than 200 feet on the line of the canal. This provision has

also come to be treated as obsolete, and the State seems to have

been uniformly charged not only for excavation which had not been

made, but for filling up the assumed excavation which, had it been

made, the State was not bound to pay for. The profits derived in

this indirect way through the fraudulent connivance of the agents

of the State, has led to an enormous expenditure for works wholly

unnecessary, and which to keep in repair must continue to subject

the State to a very considerable yearly expense.

"One of the principal expenditures upon the canals since 1868

for extraordinary repairs has been made in the construction of

vertical and slope walls which have been, as we think, very unwisely

substituted for the old walls, the capacity of the canals before

their removal having been ample for all their business.

"Between the 1st of January, 1868, and the 1st of July, 1875, there

have been built forty-three and one-third miles, linear measure,

of vertical wall, at a total cost, including the removal of bench

walls which they displaced, of $1,589,885, the cost per linear foot

averaging $6.95.

"These walls, besides costing four or five times as much as the

slope walls, are less durable, much more expensive to keep in

repair, and possess no substantial advantage except in large towns,

the commerce of which requires special facilities for docking.

But of the forty-three and one-third miles built since 1868, it

cannot be pretended that so many as three were needed to meet such

exigencies.

"Without stopping at present to inquire if the business of the canal

justified the removal of the old bench walls at all, it is very

certain that a good slope wall would have been preferable throughout

nine-tenths, at least, of the entire extent upon which vertical wall

has been constructed; and, at the rate paid for slope wall during

this period, would have resulted in an economy to the State of not

less than $1,300,000, or nearly $200,000 a year.

"An important item in the cost of this vertical wall was made up of

the fictitious estimates to which we have already alluded. Assuming

that the State was uniformly charged with fictitious excavation and

embankment along the entire length of this vertical wall--and we

have no satisfactory proof that a single rod of it was entitled to

be excepted--the loss to the State from this source alone cannot be

estimated at less than $230,000.

"We have found all the other more important provisions of these

contracts as uniformly disregarded. We have torn down and carefully

examined the work under more than forty contracts; and we cannot

name one in which the work comes up, even approximately, to the

specifications. The contracts define with great precision the

size and character of the stone to be used, the mode of their

disposition, the thickness and other dimensions of the wall, the

character of the cement and sand, the quality of lining, and what

else is needed to insure durability and a capacity to resist the

shocks from loaded boats to which the walls of canals are constantly

subjected. In no one of the forty-odd contracts that we examined

did we find the stone either in size or disposition; the dimensions

of the wall; the quality of the sand, lime, cement, and gravel, to

correspond with the specifications. The consequences to the State

are not only that it has been called upon to pay for a higher

class of work than it has received, but that it is exposed to a

large annual expenditure to keep these ill-constructed and for the

most part worthless walls in repair. It has been a not uncommon

circumstance for the superintendent to be called upon to repair the

earlier work under a vertical wall contract while other portions of

the structure were still in progress. To keep this class of walls in

repair promises to be one of the principal sources of expense for

the future maintenance of our canals.[5]

[5] See statement of Professors Michie and Wheeler, of the United

States Military Academy at West Point, on page 12 of first report of

this commission to the Governor.

"Nor is this system of fictitious estimates confined to vertical

wall. Since 1868 fifty-three and two-thirds miles of slope wall

have been built. By the terms of the contracts these walls should

have had an average thickness of at least fifteen inches, measured

perpendicularly to the slope. None of the stone composing it should

have been less than twelve inches in length at right angles to the

face, and the rear of the wall was to rest on a base of clean, hard

gravel nine inches thick. The engineers have uniformly estimated

these walls at the specified thickness of fifteen inches, while

in point of fact we have not found on any of our canals a single

stretch of slope wall, constructed since 1868, that would average

over ten inches. Of course, the stones are usually smaller than the

minimum size required by the specifications, and we did not find a

single specimen of the clean, hard gravel lining required by the

contract; so that the State has been made to pay, throughout the

whole forty-three and two-thirds miles of slope wall, for one-third

more of constructed wall than it has received--full prices for a

very inferior quality of stone--and for lining the whole work,

though not a single yard of the required quality appears to have

been ever furnished.

"To confirm our own judgments, and to be sure that we were not

applying an erroneous standard to the work done in the prism of the

canals, we invited Professors Peter S. Michie and J. B. Wheeler, of

the United States Military Academy at West Point, to go over a large

proportion of what we had already visited and to give us the benefit

of their judgment about it. Their report is annexed, and will be

found to accord in all substantial particulars with the opinions

we have felt it our duty to express in our previous report to his

Excellency the Governor, and in this communication, in reference

to all the contract work on the canals that has fallen under our

observation.

"_Third_, as to the facilities afforded by the Legislature to

contractors for procuring legislative relief:

"These facilities appear to have been grossly and corruptly abused

under the discretionary power conferred upon the Canal Board by

the Legislature. Numbers of contracts have been cancelled when

such portions of the work as were let on terms profitable to the

contractor had been executed, while those portions of the work

that were let upon terms more advantageous to the State were left

unexecuted. In such cases it not unfrequently happened that this

remaining work was let to the same parties, under a new contract, at

much higher rates. When the Canal Board was found to turn a deaf ear

to such appeals, these applications for relief would be addressed

directly to the Legislature, where the fear of doing injustice, and

the want of the time and familiarity with the subject necessary for

investigating its details, often permitted the allowance of awards

conceived in fraud and without a single legal or equitable merit.

"An illustration of this class of abuses will be found in the fifth

and seventh reports of this commission to the Governor. For one of

them--the case of the award for the relief of John Hand--George D.

Lord, a member of the Assembly which made the award, is now under

indictment, it appearing that the claim made in his behalf was

altogether fraudulent and the alleged proofs fictitious. Another

award was also made to George D. Lord of $119,000 for alleged losses

under contracts with the State for work in Buffalo harbor. This

was, to all appearances, as much greater an abuse of legislative

credulity, as the amount exceeded that which was realized under

the award to John Hand. The limited technical knowledge of canal

administration possessed by a large majority of State legislators,

and the claims of other important business upon their attention,

make it impossible for them to properly scrutinize appeals of this

character, which are usually pressed by designing men, perfectly

familiar with all the resources for deception which our complicated

canal system afforded, prior to the constitutional amendment of 1874.

"In view of the systematic infidelity of the agents of the State

which this investigation has disclosed, is it surprising that the

expenditures for extraordinary repairs alone on our canals have

amounted, since 1867, to $8,444,827.24, or to nearly as much as the

whole of our canal debt, less the sinking fund, which on the 30th

of September, 1875, was $8,638,314.49? Of these expenditures for

extraordinary repairs it is our belief that fully seventy per cent.

have been inconsiderate, unwise, and unprofitable to the State.[6]

[6] Cost of extraordinary repairs made since the year 1867,

including the year 1875:

Erie and Champlain $6,602,858 60

Oswego 583,555 22

Cayuga and Seneca 163,480 76

Chemung 220,328 34

Crooked Lake 74,145 93

Chenango 255,073 77

Black River 120,410 22

Genesee Valley 369,478 20

Oneida Lake 50,063 60

Baldwinsville 5,432 70

-------------

Total $8,444,827 34

"The facts which have been brought to light in the course of this

investigation have constrained us already to recommend rigorous

proceedings to be taken against the following parties:

"First.--Against Denison, Belden & Co. for the recovery of large

sums of money which they appear to have received unlawfully under

their contracts for work between Port Schuyler and the lower Mohawk

aqueduct, and for work east of the city of Utica, both on the Erie

Canal. The claims of the State against these parties are fully set

forth in the first and second reports of this commission to the

Governor, and suits are in progress.

"Second.--George D. Lord has been indicted by a grand jury of Erie

County, upon the facts disclosed by this commission, for bribery in

procuring an act of the Legislature for the relief of one John Hand.

The history of this case will be found in the fifth report of this

commission to the Governor.

"Third.--Thaddeus C. Davis, late member of the Board of Canal

Appraisers, has also been indicted for a conspiracy to cheat the

State. The circumstances which made him amenable to the criminal

courts are set forth in the fifth, seventh, and eighth reports of

this commission to the Governor.

"A civil suit has also been instituted against Davis to recover

moneys fraudulently obtained from the State by himself in

conjunction with George D. Lord.

"Fourth.--Indictments have also been found upon the testimony

furnished by the commission against the following other high

officials: Alexander Barkley, ex-canal commissioner; John Kelly,

late superintendent of section No. 12 of the Erie Canal; J.

Frederick Behn, division engineer of the western section; and D.

Clinton Welch, ex-superintendent of section No. 12.

"Fifth.--Upon testimony furnished by this commission, the

commissioners of the canal fund made a requisition upon the Governor

for the removal of Francis S. Thayer, late Auditor of the Canal

Department, and on the twenty-eighth day of December last Mr. Thayer

was suspended upon charges of unlawfully trafficking in canal

certificates and violating his duty as auditor 'in respect to the

public moneys in his charge and subject to his draft.' The charges

preferred by the commission upon which the commissioners of the

canal fund and the Governor acted, together with their proceedings

thereon, respectively, are hereunto annexed.[7] The testimony by

which these charges were established will be found in volume three

of the accompanying testimony, at pages 1140, 2070, 2156, 2162,

2180, 2215, 2226, 2239, 2256, 2305, 2347, 2379, 2381, 2382, 2383,

2385, 2389, 2407, 2414, 2417, 2420, 2422, 2426, 2445, 2460, 2461,

2534, 2560, 2585, 2587.

[7] See Exhibits D, E, F.

"The following sums in cash, or evidences of indebtedness, obtained

from the State through fraud, have already been reclaimed by and

restored through the commission to the treasury:

Canal Commissioner's certificates of indebtedness, issued on account

of the second John Hand award:

No. 179, dated Feb. 10, 1875 $2,500 00

No. 181, " " " 9,355 00

No. 182, " " " 4,000 00

No. 183, " " " 1,000 00

No. 185, " " " 2,000 00

[Nos. 179, 181, 182, and 185 were returned by Lewis J. Bennett;

No. 183 was returned by Wm. H. Bowman, Esq.]

Returned in cash by Lewis J. Bennett,

on account of the first John Hand award 3,199 50

Cash returned by Ellis Webster and Son, on

account of money received on false vouchers 582 68

----------- ----------

_Forward_ $22,637 18

_Carried forward_ $22,637 18

Plenary authority conferred upon the Commission

by the parties interested, to cancel the Canal

Commissioner's certificates of Feb. 10th, 1875,

issued on account of the second John Hand

award, delivered as a gift by Lewis H. Bennett

to Thad. C. Davis, then Canal Appraiser;

by Davis given to ex-Canal Commissioner

Alexander Barkley, who claims to have mailed

it to Lewis H. Bennett, though it appears

from the evidence before us that, if mailed,

it never reached him 2,000 00

--------- 2,000 00

Canal Commissioner's certificate, No. 184, issued

Feb. 10th, 1875, under the second John Hand

award, to Lewis J. Bennett, for $16,000, by

him delivered under an agreement to the agent

of Geo. D. Lord, and rendered void through

testimony elicited by the Commission 16,000 00

--------- 16,000 00

$40,637 18

Accrued interest to February 14, 1876 2,259 21

__________

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