timber and utilized it in the construction of their dam. A claim was filed against the State for the damage thereby occasioned. The trial of this claim resulted in an award against the State for the value of the timber destroyed. The judgment entered upon such award was affirmed upon appeal by the State to the appellate division. The State then appealed to the court of appeals, where the judgment of the trial court and affirmance of the appellate division were unanimously reversed, thereby definitely and finally determining the proposition that no liability against the State can be maintained for damages sustained by destruction of property by animals or birds protected by statute.

During the pendency of the Barrett case about one hundred other claims, similar in character, were filed against the State, one being for $50,000 for damage to timber destroyed by beaver. All such claims were dismissed after the decision of the Barrett case by the court of appeals.

In Beaman v. State, the claimant was one of twenty passengers in a public auto bus and while crossing the abandoned canal at Rotterdam Junction, the bridge over the canal collapsed, precipitating the bus and passengers to the bottom of the canal, injuring every person in the bus and some of them seriously. The carrying capacity of this bridge had been determined by the superintendent of public works and notice to that effect posted as required by law. The combined weight of the bus and load far exceeded the limitation so established. Every one of the injured persons filed a claim against the State, such claims aggregating about $200,000. The Beaman case was tried as a test of the State's liability under the existing conditions, resulting in an award to the claimant of $3,500, which was unanimously affirmed upon appeal to the appellate division. Such affirmance was based upon the proposition that the State could not escape

liability by simply posting notice of the defective condition of the bridge and at the same time permitting it to be used as an integral part of a public highway.

All these claims, with two exceptions, have been tried, resulting in awards against the State aggregating about $12,000, which have been paid.

In Monroe v. State, the claimant was an engineer employed by the State at the State hospital on Long Island; while passing a squad of inmates, engaged at work upon the hospital grounds, he was struck a severe blow upon the head with a shovel by an insane patient, such injuries ultimately resulting in total destruction of claimant's mentality. He was kept upon the payroll of the institution until it became certain that he was permanently incapacitated. A claim was then filed against the State for the damage he had sustained and the trial of such claim resulted in an award against the State for the sum of $25,000, less the amount which had been paid to the claimant by the State after his injury. The State appealed from such award, which appeal is still pending and undetermined.

In Troyanowich as Administrator v. State, a child was playing near the curb of one of the public streets in the city of Peekskill and was run over and instantly killed by an automobile owned by the State and being driven by a sergeant of the State militia mobilized at one of the State camps. A claim was presented against the State for the sum of $25,000. An investigation of this transaction by the adjutant-general tends to show that the officer driving this car had no authority to use the same, was not engaged in the performance of any military duty at the time but was simply amusing himself by taking a “joy ride." Under such circumstances it is claimed on part of the State that there is no liability, however regrettable the transaction. This claim has not as yet been tried.

The claims above mentioned are referred, to simply for the purpose of indicating to some extent the intricate nature and often great importance of the litigation coming before the court of claims.

The State, in consequence of its sovereignty, is immune from legal prosecution, and can only be sued by its consent, expressed by legislative enactment, designating the jurisdiction and prescribing the conditions under which it may be prosecuted. The court of claims is the only tribunal in which claimants may litigate their demands against the State. The former court of claims. and the board of claims, while quasi judicial bodies, possessed more the attributes of auditing boards than of courts. The present court of claims, while not a constitutional court of general jurisdiction, is, nevertheless, a court of record possessing ample authority to hear, try and determine substantially every class of demands against the State

CHARLES R. PARIS

WILLIAM D. CUNNINGHAM

cases aggregating approximately seventy-five million dollars. It is apparent that but little progress could be made in the disposition of this great mass of litigated busi

ness, however industrious or intelligent the court, without the co-operation of the attorneygeneral's office upon which rested the responsibility of investigating all these claims, preparing them for trial and presenting them on behalf of the State for disposition by the court. Up to this time no systematized or methodical methods had been formulated for handling this great accumulation of litigated business. The number of claims was rapidly increasing, interest charges accumulating, the court calendars congested, claimants impatient because of delay in the disposition of their demands, the court often idle because no causes were ready for trial on the part of the State and attorneys representing the State often sent into court to try important cases with which they had no familiarity and no opportunity for preparing them for trial. Early in Attorney-General Woodbury's term it became apparent that some plan must be devised for the correction of these unsatisfactory conditions. Accordingly, after consultation with the governor, with the heads of the several State departments and more particularly with his first deputy, the present attorney-general, it was decided that a separate department or branch of the attorney-general's office should be established to be known as the legal department of the court of claims and the writer of this article was selected to organize such department and take charge of it. This department has accordingly been established, its work thoroughly systematized, suitable quarters in the capitol building provided for its use, a complete system of record keeping put in operation, and, under the supervision of the attorney-general, has full control of all litigation pending in the court of claims. Deputies of ability and experience have been assigned to the work of this department, and claims are assigned to the several deputies sufficiently long in advance of trial to afford ample opportunity for thorough preparation, so that now a condition exists where

the interests of the State in this great volume of litigation are as fully and intelligently safeguarded as those of litigants in the other courts of record of the State.

For the convenience of the trial court and of litigants in the various localities, the State is divided into five districts, viz.: Albany, Utica, Syracuse, Rochester and Buffalo. A continuous session of the court of claims is held during the entire year, at the capitol in the city of Albany, except during the months of July and August. Stated sessions of the court are held twice each year in each of the other cities named for the accommodation of their respective districts. Printed calendars are prepared for each session of the court, containing a list of every pending claim in the district, arranged in the order of date of filing such claims, and a copy thereof furnished to every attorney having a case upon such calendar. Day calendars are made up from time to time during the continuance of the court and attorneys for the claimants and for the State are expected to be ready for trial when their cases are reached upon the call of the day calendar. The trial of every claim in the court of claims is conducted with the same dignity, and deliberation, and under the same rules of evidence and procedure as prevail in the supreme court. The decision of the court in every case is made in writing, signed by at least two judges, although, under the statute one judge, sitting alone, may hear any case. These decisions are filed in the office of the clerk of the court and judgments entered thereon in accordance with their terms and provisions. The State or the claimant may appeal from any such judgment to the appellate division. of the third department and a further appeal may be had, in proper cases to the court of appeals.

As a result of the diligence of the court of claims, its clerk and reporters, and the thorough co-operation of the legal department 2981 cases have been disposed of during the

past three years. The aggregate amount of such claims was $68,310,216.97 and total amount of awards made $5,283,370.16.

Other cases have been tried during the year in which no awards have as yet been filed. In addition thereto many important demands, involving millions of dollars, have been adjusted between the claimants and the legal department of the court of claims without litigation, through and under the control and direction of the attorney-general and the co-operation of the heads of the several state departments. The State is now in a situation, through the court of claims, to expeditiously dispose of litigation, prevent the accumulation of large interest charges and to afford honest claimants with legitimate demands a seasonable opportunity of establishing them. In this connection the fact should be mentioned that there are in the State three official referees, ex-judges of the court of appeals, having authority to hear, try and determine any claim pending in the court of claims, by consent of claimants and the attorney-general. During the year many cases have been referred to and tried by such referees thereby greatly supplementing the work of the court of claims.

Last month Judge Thomas F. Fennell who had been one of the most active members of the court was appointed by Governor Whitman a member of the State public service

commission of the second district. The court

regretted to lose the services of Judge Fennell but was able to congratulate him on his appointment to the important position of public service commissioner. He was succeeded on the court by Sanford W. Smith of Chatham.

The judges of the court of claims are: Fred M. Ackerson of Niagara Falls, Presiding Judge, and Judges Sanford W. Smith, of Chatham, Charles R. Paris of Hudson Falls, William D. Cunningham of Ellenville and W. W. Webb of Rochester, all of whom were appointed by Governor Whitman and all

excellently well qualified to perform in the most satisfactory manner the arduous duties imposed upon them. The work of the court is greatly expedited through the untiring efforts of the clerk, Fred D. Colson, a lawyer of ability and thoroughly familiar with every detail of the office.

The deputies attorney-general connected with the work in the legal department of the court of claims and the general line of work assigned to each are as follows:

M. H. Quirk, who has been associated with the attorney-general's office for almost thirty years, has the immediate control of the calendar at every term of court and the responsibility of keeping the various attorneys for claimants and the deputies representing the State informed as to the time their respective cases will be reached for trial.

Edmund H. Lewis, full charge of all work in the appellate courts.

Edward J. Mone and George L. Meade, all claims involving hydraulics or riparian rights.

Frank K. Cook, important appropriation claims not involving riparian rights.

Henry P. Nevins, highway contract and the more important negligence claims. Archie C. Ryder, important test overflow and water damage cases.

William E. Thorpe, barge canal contract claims.

James R. Gibson, miscellaneous contract claims.

John P. Clogston, Harry W. Ehle, Glenn M. Frank, James Cross, Frank W. Valentine, Edward M. Brown and George I. Sleicher are each assigned to trial of cases as the occasion arises from time to time.

Charles Clark has charge of investigation and preparation of highway claims.

Charles E. Glynn is stenographer and secretary, and Margaret E. Templeton is record keeper.

T

Senator Well

HERE was a memorable debate in the State senate March 20th on the resolution of Senator George B. Wellington to suspend the rules in order that the federal prohibition amendment might come before the senate. The debate will be historic in many respects chiefly on account of the fact that it was the first time that federal prohibition was freely discussed in that body.

Many able speeches were made during the debate by senators on both sides to the controversy. Senator Wellington's motion to suspend the rules, it is true, did not place the question of prohibition before the senate

George B. Wellington

on its merits, but it gave free rein to debate. The motion was defeated by a vote of 25 to 24. Two more votes were necessary, or a majority of 51, to carry it.

As the author of the resolution, Senator Wellington made the principal speech in favor of federal prohibition. Senator Elon R. Brown, Republican leader in the senate, has from the beginning opposed all prohibition measures. His speech on this occasion is declared, by his friends, one of the best he has ever made in the Senate on any subject. STATE SERVICE presents herewith extracts from both of these speeches which will indicate their character.

PR

is

ROHIBITION directed at the liquor traffic, and there is no right, either constitutional or inherent, to engage in that particular business. The business has always been subject to police power because it has been universally admitted that it is the source of evils that are of enormous expense and loss to the public. If the right to sell intoxicating liquors were an inherent right, then there could not have been the discriminatng statutes against it that have always been enacted by every civilized nation. It has always been deemed to be proper to attempt to regulate the evil, as it has been expressed. Thus it is seen that the right of the individ ual to drink when he chooses is a relative right depending entirely upon the existence of the business of selling drinks; and inasmuch as this business has always been regarded as an evil, the right of the individual to drink has never been any greater than the opportunity to drink that the State should afford to him. Inasmuch as the business has always been regarded as an evil, this alleged right of a man to drink is not a right at all but has been in the nature of a concession granted by society. The proposition before us is not to regulate morals unless it be conceded that immorality is necessarily connected with

the act of drinking. This admission may be made but I make no such assertion.

As to the loss of revenue it is sufficient to say what is worth doing is worth paying for.

It is objected that the subject matter is not of sufficient importance to warrant its incorporation in the Constitution. It is true that a matter must be of serious moment to warrant a Constitutional provision respecting it. Trivial matters or temporary conditions, or subjects adequately met by the exercise of the police power of each State ought not to go into the Constitution of the United States. This test must be applied to the subject of prohibition. Those who favor it must be willing that its fate shall be determined by the answers to the question: Is the use of intoxicating liquors a serious hindrance to the development of this country in efficiency? It is a widespread evil affecting adversely, directly or indirectly, the welfare and happiness of the people. It is perfectly plain that the best thought of the day has found expression in the action of the government in the protection of our soldiers from the risk of using intoxicating liquors. The menace is regarded as very great. The recent order of the Secretary of the Navy making dry zones five miles wide around seven naval training posts and the Naval Academy at Annapolis is most significant. Among other reasons for the order this one was given:

"Representations have been made by the authorities at the training station that, in spite of every effort on their part, and in spite of the detail of numerous naval patrols throughout the city, the liquor menace continues unabated