approval by the Secretary of War of the location and plan, required by the act to be approved by him, must show that the work had been commenced within the time fixed. 33, 409, July, 1889; 47, 99, May, 1891; Card 8736, August, 1900.

627. Where the act of Congress authorizing the construction of a bridge fixes the time for the completion thereof, the Secretary of War cannot grant an extension of the time. In such a case the bridge should be completed as soon as possible and application made to Congress for the necessary extension. Card 250, November, 1894.

628. The bridge across the Mississippi River connecting the cities of Rock Island, Illinois, and Davenport, Iowa, belongs to the United States, which has complete control of the same, subject to the right of way of the Chicago, Rock Island and Pacific R. R. Co. (under the acts of June 27, 1866 and March 2, 1867). The bridge is both a wagon and a railroad bridge. The railroad company has no interest in or authority over the wagon way or right to dictate what use shall be made of it. The wagon way is established for the use of the United States, not for that of the public, but has been opened to the public for passage and transportation subject to conditions, one of which is that certain railroad freights shall not be conveyed over it. Held that neither the railroad company nor the commanding officer of the arsenal was authorized to prevent the American Express Company from hauling across between the two cities express matter not of the character precluded by such conditions. 34, 213, July, 1889.

629. Authority granted by an act of Congress to a corporation or an individual to construct a bridge over navigable water of the United States is a franchise which cannot be assigned without the permission of the grantor.' And the Secretary of War cannot in such a case lawfully entertain an application for the approval by him of the plans of a bridge made by a party or a corporation to which the right to build the bridge has been, without the authority of Congress, transferred. XLIX, 618, December, 1885; 31, 378, April, 1889; 32, 469, June, 1889. Where a specific grant to build a bridge for a specific purpose-i. e. to complete its line and to accommodate the public-is made to a railroad corporation by an act of Congress conferring no power of substitution, new legislation is requisite to authorize the transfer of the franchise to another company. XLIX, 618, supra; 630, January, 1886; Card 1660, August, 1895.

630. Where the authority for the bridge is given in terms to the company, its successors and assigns," it is held that these words, being the ordinary words of limitation of an estate granted in per

1

Branch r. Jesup, 106 U. S., 468; Thomas v. Railroad Co., 101 U. S., 71.

petuity to a corporation, confer no right of transfer.' There must still be specific authority of statute for the purpose, or the transfer, if assumed to be made, will be ineffectual and void. 31, 378, April, 1889; 34, 276, August, 1889.

631. Where the plans were submitted and the approval of the Secretary was applied for, not by the corporation to which the authority to build the bridge had been granted by an act of Congress, but by a construction company, which, by contract, was to erect all the bridges for such corporation, and to own them when completed, held that the Secretary of War could not legally approve the application, the substitution of the company not having been authorized by Congress. 31, 378, April, 1889.

632. The acts of July 5, 1884, c. 229, s. 8, and August 11, 1888, c. 860, s. 9, in providing for the removal of obstructions to navigation caused by bridges, by requiring their alteration, &c., do not empower the Secretary of War to resort to military force to effect the purpose. They leave the execution of their provisions to the law officers and the courts. They make it the duty of the Secretary of War, whenever the owners or responsible parties, after having been notified to do so, neglect to so alter a bridge as to abate the obstruction, to apprize the Attorney General who is thereupon required to initiate the proceedings specified in the statute. 42, 85, July, 1890.

633. Under the act of August 11, 1888, it was advised-though the statute did not require it-that the Secretary of War, being constituted judge in the first instance, would properly give the corporation, &c., owning or controlling a bridge an opportunity to be heard, and not decide the question of obstruction or alteration upon the report of the engineer officer alone. 35, 166, September, 1889. But it was also held that the notice was sufficiently specific, under the law, though it did not indicate how the proposed alteration was to be made; that the Secretary of War indeed was not empowered to prescribe how the bridge should be altered, but that the responsibility for the proper alteration was wholly upon the corporation. 28, 14, November, 1888; 35, 265, September, 1889.

634. The act of September 19, 1890, sec. 4, however, amended the provision as to notice in the act of August 11, 1888, s. 9, by requiring that the notice, to be given to the person or corporation, owning or controlling a bridge which obstructs navigation, to so alter it as to do away with the obstruction, "shall specify the changes required to be made," such party being first given a "reasonable opportunity to be heard." 49, 72, September, 1891.

18 Opins. At. Gen., 512.

635. The power expressly vested in the Secretary of War by sec. 4 of the act of September 19, 1890, to determine whether a bridge is an obstruction to navigation, is of a judicial nature, not ministerial merely. The law makes him the agent of the United States for the purpose and vests him with a specific discretion. Held that the power devolved pertained to him alone and could not legally be exercised by the Assistant Secretary of War. C, 135, May, 1890.

636. Especially in view of the fact that the giving of the notice to alter, under the act of 1890, s. 4, is a proceeding preliminary and necessary to the fixing of criminal liability upon a failure to make the alteration, such notice should be strict and precise. It should set forth the situation and character of the bridge so as clearly to identify it, stating the name of the owner, &c., and specify fully the change or changes required to be made" as to height, width of span or drawopening, &c.; and it should appear from the notice, or in connection therewith, that the party has had a "reasonable opportunity to be heard." 43, 431, November, 1890.

637. Before the notice to alter a bridge is given, the party owning or controlling the same is entitled, under the act of 1890, s. 4, to be heard on the changes specified in the notice as well as on the time in which they are to be made; and unless an opportunity for such hearing has bee.. given, the party will not be liable to the penalties specified in sec. 5, of the said act. Cards 798, December, 1894; 1511, November, 1895. 638. Held, that the provision of the act of August 11, 1888, as to the proceedings to be taken against a corporation refusing after due notice under that act to alter a bridge, was repealed by that of the act of September 19, 1890, and that such corporation could not now be prosecuted without a new notice under the existing statute, followed by a failure to comply. An offender cannot be punished under a penal act

'In U. S. v. Rider, 50 Fed. Rep., 406, it was held (by Sage, U. S. Dist. J.) that this section was unconstitutional in delegating to the Secretary of War "powers exclusively vested in Congress." See, however, Rider v. U. S., 178 U. S., 251. At the trial of this case in the circuit court there was a division of opinion, but the presiding judge charged the jury that Congress had the constitutional power to confer upon the Secretary of War the authority to determine when a bridge, such as the one in question, was an unreasonable obstruction to navigation, and on writ of error to the Supreme Court the judgment was reversed, without deciding this question, on the ground that the municipal officers controlling the bridge did not have public moneys which could lawfully be applied to the purpose and could not obtain such moneys within the time specified in the notice. In an able and exhaustive opinion by Acting Atty. Gen. Dickenson, dated Oct. 24, 1896, it was held that this act was not an unconstitutional delegation of legislative function; that Congress is not required to consider each case of alleged obstruction, but may generally define the offence and leave the facts to be determined by a court or special tribunal. 21 Opins. At. Gen., 430, and authorities cited.

Miller r. Mayor of New York, 109 U. S. 385, 393.

"A purely statutory authority or right must be pursued in strict compliance with the terms of the statute." Bishop, Written Laws, § 119.

which has expired or been repealed prior to conviction. So, advised that proceedings initiated under the act of 1888 be commenced de novo. 43, 431, November, 1890; 49, 72, September, 1891. Under the act of 1890, s. 4, it is made the duty of the Secretary of War to initiate proceedings (by notifying the proper district attorney) only in case of alterations, not made, of completed bridges; as to other obstructions, the duty to enforce the provisions of the act is devolved upon the "officers and agents" specified in s. 11. 52, 343, March, 1892.

639. Where, after notice to alter a bridge, as constituting an obstruction to navigation, the bridge company owning the same has failed, and the franchise has passed into the hands of a receiver, the proper method of procuring the alteration to be made is by motion in the proper court for an order requiring the receiver to make it. 37, 404, January, 1890. In such a case neither the owner nor the receiver can be made personally amenable for failure to alter. 60, 118, June, 1893. A similar proceeding is to be pursued where a receiver has been appointed before notice or before the obstruction was developed. Thus where a bridge, on the line of a railroad, which had been placed under receivers, was discovered to be an obstruction to navigation because of having no draw, advised that the Secretary of War apply to the Attorney General to have the case brought by the proper motion to the attention of the court by which the receivers were appointed, whose duty it then would be to order the receivers to make the alteration out of the income accruing from the operation of the road.2 And held that it would not be necessary to notify the receiver as such, since without the order of the court he could not legally incur the requisite expense for the purpose. 60, 118, supra; 62, 55, October, 1893. And see 64, 399, April, 1894.

3

640. Where a bridge has been reported an unreasonable obstruction to navigation the Secretary of War may proceed under sec. 4 of the act of September 19, 1890, to give the owners thereof a hearing with a view to notifying them to make the necessary alterations. But if in the meantime the owners waive hearing and notice and submit plans of alterations, the Secretary may approve the same; and his approval will in effect prescribe that the bridge be altered as indicated by the plans. This procedure has been followed in a number of cases. Card 1157, March, 1895.

641. The Department of Public Works of the City of New York requested that the necessary steps be taken to permit that department to close the drawbridge across Harlem River at Madison Avenue for

not to exceed two weeks to make needed repairs. Remarked, that there is no statute of the United States which in terms empowers the Secretary of War to authorize the closing of a drawbridge during its repair, but recommended that the applicant be advised that no steps would be taken by the War Department in regard to the bridge as an obstruction to navigation during the time necessary for its repair. Card 3299, June, 1897.

BURGLARY.

642. Burglary at common law is the breaking and entering of a dwelling in the night time with intent to commit a felony. Where a soldier was brought to trial upon a charge of "Burglary," with a specification setting forth that he forcibly entered the quarters of an officer in the night, with intent to steal, and it appearing that he entered through an open window, held that, although the offence shown was not a burglary in law-the essential element of a breaking being wanting the charge and specification, taken together, omitting this element, made out a sufficient pleading of a disorder to the prejudice of good order and military discipline, under the 62d Article of war. XXXVIII, 391, December, 1876. And similarly held of an offence charged as "conduct to the prejudice, etc.," and described in the specification as "burglariously" breaking and entering a post trader's store in the day time. XXX, 548, August, 1870.

C.
CADET.

643. An unemancipated minor can acquire no residence distinct from that of his father or parent; otherwise in the case of an emancipated minor. Card 6615, June, 1899. So held that unemancipated minors whose fathers resided in certain States and congressional districts, could not, by removing to and abiding in other States or districts, acquire such an "actual residence" therein as to render them eligible for appointment as cadets under Sec. 1315, Rev. Sts. XXIX, 83, July, 1869; XXXI, 313, April, 1871.

See G. C. M. O. 205, Hdqrs. of the Army, 1876.

3

See Crawford r. Wilson, 4 Barb. 505; Brown e. Lynch, 2 Bradf. 214; Wheeler v. Burrow, 18 Ind. 14; Hiestand v. Kuns, 8 Blackf. 345; Allen e. Thomasen, 11 Humph. 556: Hardy v. De Leon, 5 Texas, 211; Story, Conflict of Laws, § 46.

This opinion was concurred in by the Attorney General, in 13 Opins. 130.

16906-01-12