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It will be perceived that the above resolutions bear date in March 1829; but the cominittee could not ascertain the particular day in which they were passed. As the first resolution relates to the proposed route of the Binghamton canal, the committee conclude that it must have been after the passing of the act by which that survey was authorised; which act, by a reference to the Session Laws of 1829, page 135, appears to have been passed on the 24th day of March of that year. The resolutions contained in the above extract must therefore have been passed after the 24th day of March; but whether before or after Mr. Trumpbour submitted his second proposition, is not ascertained; but it seems reasonable to conclude, that it was not until after for if they had passed before, the question would have been closed, and the door shut to all subsequent propositions, which has not been pretended; but on the contrary, the objection to receive Mr. Trumpbour's second proposition was, that he had seen Mr. Hutchinson's, and thereby became acquainted with its principles and terms.

The committee freely admit, that the Commissioners had an undoubted discretion to take into their consideration the qualifications of the persons offering to contract for the surveying and mapping of the Erie, Champlain, Oswego, and Cayuga and Seneca canals; and that they were not bound to take the lowest estimate, if in their judgment there were other circumstances forming a just equivalent; but they trust it will not be deemed intrusive in them, to submit a remark upon the nature of these particular propositions, with regard to which, it seems to have been well understood in the outset, that the objects of the statute could not be effected at an expense less than the appropriation, being five thousand dollars. Mr. Trumpbour offered to do it for this specific sum. Mr. Hutchinson's proposition was so framed, that while it seemed to be an offer to perform the duties required by the act for a smaller compensation, yet, nevertheless, contains such provisions as would, in the event of obtaining the contract, enable him to secure the whole appropriation as a compensation for the services; and we see in the deposition of the Comptroller, that $3,000 dollars have been charged in the books as paid to him, but which is supposed to include the five hundred dollars paid by Mr. Seymour to Mr. Trumpbour, for which Mr. Seymour took Mr. Trumpbour's notes, and endorsed them over to Mr. Hutchinson.

The committee think Mr. Hutchinson's proposition was substantially an offer to make the surveys and maps for $5,000, and ought to have been so considered; that Mr. Trumpbour's second proposition amounts to the same thing, and they have no doubt but that both of these gentlemen so considered it when they made these propositions. This construction accounts for Judge Trumpbour's declaration, that he did not want, and would not undertake the service for less than that sum. The reason is manifest, it could not be done according to the requirements of the act, at a less expense.

Considering the nature of the first propositions of the memorialists, and that Mr. Trumpbour, after he had seen Mr. Hutchinson's, insisted on making another, we are not only led to the conclusion, that whatever propriety there might have been in regarding his first proposition, as entitled to a preference over Mr. Hutchinson's, for that because of its open and specific character, it laid no pathway for the introduction of an expensive controversy at the public charge, yet he must be regarded as having relinquished this ground, so far as it rested upon the specific terms of his first proposition; but he does not appear to have abandoned the proposition itself, but rather to insist on his right of turning it into a conditional one, in consequence of a received impression at the time of making it, that none other could be received for the undertaking by the Canal Commissioners.

This reason assigned for having made his first proposal in the way he did, at a time when he was insisting upon the right to substitute a conditional one, the Canal Commissioners think is no evidence that he intended to be understood to intimate that, he had received the impression from them. The committee do not say, that the Canal Commissioners intended to convey such an understanding; but it is sufficiently apparent in the testimony, that such an understanding was derived from them: and considering the situation and circumstances of the parties, the committee think the suggestion carries that conclusion with sufficient force and precision, not to be misunderstood. And also, that the expression that, "no other (than a specific proposition) could be received by the Commissioners for the undertaking," is a remonstrance, carrying the suggestion, that no other than specific propositions ought to be received; couched, indeed, in such delicate language, as not to awaken the displeasure of the tribunal to which it was addressed; neither is it intended now to occasion any such sentiment: but as this point was discussed in the

documents referred to the committee, they were naturally drawn to its examination.

Notwithstanding the resolution contained in the foregoing extract from the minutes of the Canal Commissioners, the committee are satisfied by the testimony, that such a modification of the transaction afterwards took place, that one-half of the contract was given to Jacob Trumpbour, with the concurrence of Holmes Hutchinson; and that too under such circumstances as led him at the time of entering into the contract, to the conclusion, that he was contracting with the State in his own right, and not as a subcontractor under Mr. Hutchinson; and that the resolution never was carried into effect in any other way.

Mr. Hutchinson, in his memorial, 10th page of the printed documents referred to this committee, No. 188, states that "In the month of April next following the presentment of the proposals above mentioned, the acting commissioner, Mr. Seymour, informed him at Utica that the Canal Commissioners had accepted his proposal for surveying the canals, and wished measures to be taken for the immediate execution of the work. Mr. Seymour likewise informed him that Mr. Trumpbour, of Kingston, was desirous of aiding in the survey, and inquired of him whether he would be willing to make an arrangement with Mr. Trumpbour to that effect; observing at the same time, that both Col. Bouck and himself would be gratified to have Mr. Trumpbour accommodated. To which he replied, that he was unacquainted with Mr. Trumpbour, and therefore could not rely upon his ability as a surveyor, or his willingness to enter into the views, and to conform in every respect to the plan which he should pursue in making the surveys."

This remark of Mr. Hutchinson very naturally leads to another; for if the circumstance of these gentlemen being strangers to each other was a good reason for so much caution on the part of Mr. Hutchinson, in respect of the plan to be pursued in making the survey; concerning which the committee are of the opinion that the statute does not delegate any other authority than such as was deemed requisite to secure a conformity to the plan specified in the act itself; how much more reason would not Mr. Trumpbour have had for declining to make one half of these expensive and laborious surveys upon the personal responsibility of Mr. Hutchinson, of whom he had no knowledge; still less can it be imagined that, under such circumstances, with his standing in the community, and

the statute before his eyes, he could have agreed to submit himself to the direction of Mr. Hutchinson to conform to such plan as he might be pleased to suggest, and thereby not only take the risk of the personal responsibility of an individual with whom he was not acquainted, but also of debarring himself of all hope of remuneration from the State, if the plan should be different from that prescribed in the statute.

By the foregoing extract from Mr. Hutchinson's memorial, it appears that when the Canal Commissioners communicated to him, that they had accepted his proposition for surveying the canals, they also informed him of their desire that the contract should be divided between him and Mr. Trumpbour. This seems to carry the conclusion that they had adopted his proposal, rather for the purpose of settling the basis of the agreement than for the purpose of giving it exclusively to him; notwithstanding the words of the resolution, if they were not qualified by subsequent transactions, would carry a different result; and the committee would have supposed the negotiations closed by that resolution, if the transactions both before and after its passage did not lead them to a different conclusion.

To this tendency is the passage in the third page of the report of the Canal Board, Assembly documents of 1832, No. 188, referred to this committee, where it is said:

"Mr. Trumpbour has no reasonable cause for complaint that the Canal Commissioners refused to receive his second proposition, after the terms of Mr. Hutchinson's proposition were made known to hiin."

"It will be readily seen that if Mr. Trumpbour had been permitted to make a second proposition, Mr. Hutchinson might with the same propriety have insisted on making his second proposition, and thus each would have modified or altered his proposition so as to bring his offer within the terms offered by his competitor. This course could not have led to a satisfactory result, would have been unjust, and is contrary to all established usages on such subjects. The Canal Commissioners, in the opinion of the Canal Board, were entirely correct in refusing to receive a second proposition from Mr. Trumpbour; and having done so, it was their duty to consider Mr. Hutchinson as the contractor."

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The committee are inclined to adopt the opinion that the Canal Board did not intend the whole of the foregoing statement as conclusive in point of fact; but rather as matters of inference, tending as they supposed to carry the conclusions there expressed; not but that the committee fully agree in the propriety of the usage, that propositions made for contracts ought not to be disclosed to any other persons disposed to engage in the undertaking; but because they think there is some misapprehension about the facts stated in that part of the report.

Col. Bouck, in his testimony, Deposition No. 14, in answer to the second interrogatory: Have you within your possession or control one or more propositions made by Jacob Trumpbour to the Canal Commissioners, for surveying the said canals; or do you recol· lect that the Canal Commissioners received such propositions? made the following reply, &c. :

A. I have no such proposition in my possession nor under my control, only so far as I should have a right to demand them from my colleague, Mr. Earll, who I suppose has them. The Canal Commissioners received, I believe, two propositions for surveying the canals from Mr. Trumpbour.

3d Question. Do you recollect whether the said propositions corresponded substantially with those. set out and referred to in Jacob Trumpbour's memorial, pages 15 and 16 of the printed Documents?

A.

I have no recollection now of having seen the propositions referred to, since the winter of 1829. But I believe that what I stated to be the substance of a proposition in the latter part of the second paragraph of Mr. Trumpbour's memorial, at page 15, substantially comports with the proposition received from Mr. Trumpbour. I also believe that what imports to be a letter and proposition from Mr. Trumpbour, page 15 and 16, dated the 28th March, 1829, substantially comports with the letter and proposition received from Mr. Trumpbour.

4th Question. Are you, or have you been, and at what time, clerk of the Board of Canal Commissioners?

A. I am now secretary of the Board, and have been since the organization of the Board in 1827 or 1828.

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