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their respective situations, all the subordinate officers appointed by their immediate predecessors.
That on the 1st of April last, Messrs. Rix Robinson, Levi S. Humphrey and William R. Thompson, members of the late board of internal improvement, presented to the undersigned their claims to a seat and voice in the deliberations of the present board; also, expressing a doubt as to the constitutionality and legality of their removal from said office of commissioners of internal improvement, and asking the opinion and action of the undersigned on the point, whether the said Robinson, Humphrey and Thompson are, or are not, members of the present board of internal improvement?
In accordance with their request, and after a careful investigation of the law creating the present board, the undersigned unanimously adopted the following resolution:
"Resolved, (as the opinion of this board, acting under the authority of the act last mentioned,) That it cannot regard either of the first mentioned board of commissioners, as commissioners now in authority, or entitled to a voice in the deliberations of the board of internal improvement of this state.
That on the last mentioned date, the board, for the purpose of enabling themselves to comply with the 23d section of the act by which they were appointed, by resolution, called upon the agents of the state, (appointed by the late board,) to furnish them with a schedule of public property on hand, and under their charge respectively. Under this requisition, the board obtained statements of the same from the engineers, superintendents and agents on the Central and Northern railroads, Clinton and Saginaw canals, from Rix Robinson, the commissioner lately having charge of the river improvements, and, after much delay, (as the undersigned are induced to believe,) an incomplete and imperfect statement from the engineer on the Southern railroad. And the board would beg leave to state here, that up to the present time, they have not received the field books, contracts and other important papers under his charge, and necessary to the construction of the work, the want of which has left the undersigned, and their agents, without information with regard to the amount of work which had previously been estimated by him, and the prices to which contractors were entitled, for work done subsequent to his leaving the employ of the state.
The board, at meetings held on the 8th, 9th, 18th and 21st of April, and the 15th of May last, made the following appointments, viz: John M. Berrien, principal engineer under the board; Alvin Turner, principal engineer on the Clinton and Kalamazoo canal; Ludwick Wesolowski, assistant engineer on the same, and Alexander H. Adams, secretary and book keeper
to board, with each a salary not exceeding the amount prescribed by law.
They also at the same dates, appointed Benjamin Briscoe superintendent of car and machine shops of the Central railroad, with a salary at the rate of eight hundred dollars per annum; Gerge Byrd, collector of tolls on same, with a salary of seven hundred dollars per annum; Samuel D. Woodworth, assistant collector of tolls on same, with a salary of six hundred dollars per annum; Henry Willis, superintendent of repairs and of wood and water stations on same, with a salary of seven hundred dollars per annum; A. H. Adams, weighmaster at Detroit, on same, with a salary of two hundred dollars per annum, and George H. Brodhead, receiver of tolls on same, with a salary of five hundred dollars per annum.
Subsequent to their appointments, Messrs. Brodhead and Willis resigned the situations to which they were appointed; whereupon William S. Driggs was appointed to the place lately occupied by the former, and Daniel B. Brown to that of the latter, with the same compensation allowed the former. It also being deemed advisable, about the first of August last, to suspend the running of one train of cars on this road, the services of Mr. Byrd, the collector thereon, were necessarily dispensed with, and in consequence of the whole duty of collection of tolls devolving upon Mr. Woodworth, the collector on the other train, his compensation was increased from six to eight hundred dollars per annum, during the time when one train of cars should run upon the road.
By a resolution of the board, adopted on the 18th of April last, Robert Stuart, Esq., a member thereof, was empowered to make all the necessary arrangements for the receiving and delivering the railroad iron contracted for by Levi S. Humphrey, agent of the state, which was then lying in the cities of New York and Buffalo. After much detention, and final recourse to legal measures, he has succeeded in delivering to this city, one hundred and thirteen tons five hundred and seventy-five pounds, (113 tons,) being only that portion which was lying in the city of Buffalo. The quantity remaining in the city of New York, is detained there until a claim. alledg ed by Messrs, Hicks & Co., to be due them, is liquidated; of the amount or justness of this claim, the board are wholly unadvised, as no contracts or papers are filed in their office, showing the amount of iron contracted for, the price per ton, or the cost of transporting the same to this place. By reference to the annual report of the late board, it will be seen that the sum of eighty thousand dollars is there given as the amount due on the contracts for said iron, and as no sum of this magnitude appears to have been paid since the date of that re
port, it is probable the amount due is nearly the amount given therein.
By a resolution of the board, adopted April 21st, last, the acting commissioner was authorized to place a train of cars, for the transportation of freight and passengers, on the Southern railroad, whenever the same should be completed from Monroe to Adrian. To enable him to carry out the intentions of the board, and in the absence of the necessary means for that purpose, it was deemed advisable by him, in conjunction with the other members of the board, to transfer from the Central railroad such machinery and cars as were necessary to effect the object, and to continue the train in operation, if, on a fair trial, it should be found to pay the expenses of running the same. To enable him still further to carry out this object, an arrangement was made with the Bank of Michigan, for an advance of one thousand dollars, to pay the expenses of fitting up a work shop and providing the necessary implements for furnishing the same.
The cars commenced running regularly on this road on the 23d day of November last, from Monroe to Adrian; but as the road from the former place to La Plaisance bay, (a distance of four miles, and the only point for the transhipment of property conveyed on the Southern road,) in consequence of the repairs now being made upon it, is not in a condition to use; the result thus far could not be considered a fair test of its utility.
On entering upon their duties, the board found that contracts had been entered into, on the Southern and Central railroads, and the Clinton and Kalamazoo canal, to an extent exceeding the amount of appropriations on each of said works, and as the existing law, from which their powers are derived, prohi bits the making of any contract, except in strict accordance with appropriations previously made, their duties in relation to these works, were entirely limited to a supervision of the work done under existing contracts.
On the Southern railroad the contracts extended to the lay, ing down the iron as far as Adrian, a distance of thirty-four miles from Monroe, and the grading, bridging and superstruc ture, from Adrian to Hillsdale, a distance of thirty-two miles, The estimates allowed and signed by the acting commissioner for work done and materials delivered, on this road, under the above mentioned contracts since March 31st, last, is $56,981 47. The amount paid by the commissioner under the late board, on this work, from December 1, 1839, to March 31, 1840, as appears by vouchers filed in this office, and audited since the first mentioned date, is $120,793 39.
On the Central road, contracts had been entered into for the completion of the grading, bridges and timber for the super
structure, and a verbal agreement made for laying and ironing a principal part of the road from Ann Arbor to Dexter; from Dexter to Jackson, contracts had also been entered into for grading, and timber for the superstructure, for nearly the whole distance; a part of the contracts for grading had been abandoned by the contractors, for want of means to carry them on, or declared forfeited by the acting commissioner under the late board, for a non-compliance with the requirements therein contained.
From a view of the facts here presented, some doubts were entertained by the board, whether, under a rigid construction of the 7th section of the act by which they were appointed, their legal authority to prosecute, or superintend, the progress of any portion of the above works, did not cease upon the appropriation therefor being expended; but finding the work under contract, as stated above, and, in many instances, far advanced towards completion, and not questioning the intention of the legislature ultimately to finish what had been thus put under contract, although the legality of such contracts, in advance of appropriations, is deemed questionable; and finding, also, that a suspension of the work, in the condition it was in, when the appropriations were expended, world subject the state, or the contractors, to heavy damages and loss, (see letter of J. M. Berrien, principal engineer, herewith submitted, marked A.,) the board came to the conclusion that the public interests would be promoted by permitting the work to progress, and affording the contractors such facilities as were in their power to forward their work. The contractors on the Southern, and a portion on the Central roads, were willing to go on with the works under their contracts, trusting to the legislature to make provision for their future payment, provided they could get certified estimates for their work.
Believing this to be the proper course, under a full view of the circumstances, the board authorized Theophilus Metcalf, (formerly an engineer on the Southern railroad,) by their letter of appointment, dated May 1st, 1840, herewith submitted, (marked B,) to take charge of said road, and measure and estimate the work. By his report, herewith submitted, (marked C.) the amount performed, and estimated by him, under this arrangement, is $56,981 47, which estimates are now afloat, and for the payment of which, no provision has been made.
The work on the Central road from Dexter to Jackson, has progressed under a similar arrangement since the first of June last, the appropriation on said road being expended about the 15th of May preceding.
The total amount paid on this road, under the direction of the present board, is $50,774 42; the amount of work estimated on the fifth and sixth divisions from Dexter to Jackson, and
now due, certified estimates for which are now afloat, is $17,476 10. The work on the fourth division from Ann Arbor to Dexter, is nearly completed. By arrangements entered into with the Bank of Michigan, during the last summer, by the contractors on the line, predicated upon an assurance from the board, of their disposition to facilitate, as far as in their power, the final adjustment of their claims for such advances as they might make under such arrangement, that portion of the road has progressed rapidly towards completion. The amount advanced by the bank under this arrangement, is $34,387 54.
The iron has been laid upon that part of the road within four miles of Dexter, and a quantity sufficient on the line to lay about one and a half mile more, which will leave a distance of two and a half miles to be completed when the iron can be obtained for that purpose; with a view to this object, and a desire to open the same for travel at an early day, the board were desirous of obtaining from Monroe a quantity deemed sufficient to accomplish this object; and with a knowledge that of the iron which had been contracted for, under a former board, there had been delivered at Monroe a quantity sufficient to lay some forty miles of road, while there had been delivered at Detroit, including what has been obtained during the present season from Buffalo, a quantity sufficient to iron about sixteen miles; and consequently that after furnishing the road between Monroe and Adrian, there must be a surplus, which the board was not authorized by any existing appropriation or contract, to lay upon that road, and which must remain useless to the state for the present, since no law existed which would authorize the applying it to the road leading to La Plaisance harbor-that road having been purchased by commissioners appointed for that purpose since the last session of the legislature; and as no provision had been made by law for any other expenditure on it, the board considered that the application of that surplus came perfectly within the purview of their duty, and within the exercise of their sound discretion. Of this they could entertain no doubt, nor did they imagine it could, for a moment, be the subject of doubt in the minds of others, since the act under which the iron was purchased, does not designate how it shall be appropriated between the different works; and there being neither resolution. or order by any previous board found upon the records of this office making such apportionment. There was no portion of the Southern road proper, reported to this board as in a condition to receive the iron, even if there had been an act of appropriation, or even a contract for laying it down, and the board has no more right to assume the power, in the absence of any legislative provision, to lay the iron on the River Raisin and Lake Erie railroad, than they would have had to lay it on the