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the bridges erected or legalized under the provisions of this act." This provision was doubtless suggested by the case of the Wheeling bridge, which structure, though afterwards legalized by Congress, had been declared unlawful because it interfered with several large packets with high chimneys then navigating the Ohio. (13 How., 518; 18 How., 421.) The subjection of navigation to a servitude of this kind was, as held in the second Wheeling bridge case, a matter within the discretion of Congress.
The case of Bridge Company v. The United States (105 U. S., 476) is of course decisive as to the nature of the grant under which the Newport and Cincinnati bridge was originally constructed. It appears, however, from the report of the Chief of Engineers that that bridge was rebuilt in 1895–1897 with its increased present channel span. As held by Attorney-General Griggs, in his opinion in the Bellaire bridge case (22 Opin., 343, 348), if the Newport and Cincinnati bridge was afterwards reconstructed, even though it may be on the same location as the original bridge, the work in the absence of special legislation, and my attention has been called to none) must have been done, not under the act of July 14, 1862, but under the authority of the act of December 17, 1872, and subsequent legislation, to be presently referred to.
The Ohio Falls bridge was built under the authority of the act of July 14, 1862, and the amendatory act of February 17, 1865 (13 Stat., 431). The latter act authorized certain-named railroad companies to construct a bridge over the Ohio River at the head of the falls of the Ohio, subject to the provisions of the former act, upon certain prescribed conditions as to its height, spans, draws, etc. 'It also provided " that said bridge and draws shall be so constructed as not to interrupt the navigation of the Ohio River;" and finally declared that "the bridge erected under the provisions of this act shall be a lawful structure, and shall be recognized and known as a post route."
The act of February 17, 1865, contained no reservation of power to alter, amend, or repeal; so that, with the exception of the proviso that “the said bridge and draws shall be so constructed as not to interrupt the navigation of the Ohio River,” the situation does not differ from that presented by the act of July 14, 1862, of which it was amendatory.
The meaning and effect of this proviso would seem to be clear. Like the provisions as to the dimensions of the bridge, it is one of the conditions upon which the bridge was authorized to be built and its character as a lawful structure depended. If not built of the required height, width of span, etc., the bridge would be an unlawful structure; and although all other requirements were complied with, if built so as to interrupt the navigation of the river, it would still be unlawful. But when constructed in accordance with the preseribed conditions, and so as not to interrupt the navigation of the river, the bridge became, ipso facto, as declared in the act a lawful structure. The question whether it was so constructed as not to interrupt the navigation of the river was necessarily to be determined by the requirements of navigation at that time. It could not be made dependent upon the needs of future navigation, without practically annulling the declaration that " the bridge erected under the provisions of this act shall be a lawful structure.
It follows therefore that, if the Ohio Falls bridge complied with all the requirements of the acts of July 14, 1862, and February 17, 1865,
and did not at the time of its erection interrupt the navigation of the river, the owners thereof can not be required to make such changes therein as the interests of navigation may now demand, at their own expense, without compensation.
2. The act of July 14, 1862, was superseded by the act of December 17, 1872 (17 Stat., 398), entitled “ An act to authorize the construction of bridges across the Ohio River, and to prescribe the dimensions of the same.” That act provided that “any persons or corporations, having lawful authority therefor, may hereafter erect bridges across the Ohio River, for railroad or other uses, upon compliance with the provisions and requirements of this act” (sec. 1). It also provided that “any bridge constructed under this act, and according to its limitations, shall be a lawful structure, and shall be recognized and known as a post route” (sec. 6).
The act contained, however, this important reservation: Sec. 7. That the right to alter or amend this act, so as to prevent or remove all material obstructions to the navigation of said river by the future construction of bridges, is hereby expressly reserved, without any liability of the Government for damages on account of the alteration or amendment of this act, or on account of the prevention or requiring the removal of any such obstructions; and if any change be made in the plan of construction of any bridge constructed under this act, during the progress of the work thereon or before the completion of such bridge, such change shall be subject to the approval of the Secretary of War, and any change in the construction, or any alteration of any such bridge that may be directed at any time by Congress, shall be made at the cost and expense of the owners thereof.
This act was amended in certain respects, which need not be noted, by the act of February 14, 1883 (22 Stat., 414), section 5 of which reserves the right to alter, amend, or repeal this act as set forth in section 7 of the act hereby amended.”
The express reservation contained in these two acts places beyond question the power of Congress to require the alterations of any bridge constructed under their authority, at the cost and expense of the owners thereof, without compensation, in order to prevent or remove all material obstructions to the navigation of said river.
We come then to consider the legislation of Congress applicable to this purpose.
The river and harbor act of March 3, 1899 (30 Stat., 1121, 1153), provides:
Sec. 18. That whenever the Secretary of War shall have good reason to believe that any railroad or other bridge now constructed, or which may hereafter be constructed, over any of the navigable waterways of the United States is an unreasonable obstruction to the free navigation of such waters on account of insufficient height, width of span, or otherwise, or where there is difficulty in passing the draw opening or the draw span of such bridge by rafts, steamboats, or other water craft, it shall be the duty of the said Secretary, first giving the parties reasonable opportunity to be heard, to give notice to the persons or corporations owning or controlling such bridge so to alter the same as to render navigation through or under it reasonably free, easy, and unobstructed; and in giving such notice he shall specify the changes recommended by the Chief of Engineers that are required to be made, and shall prescribe in each case a reasonable time in which to make them. If at the end of such time the alteration has not been maile, the Secretary of War shall forth with notify the United States district attorney for the district in which such bridge is situated, to the end that the criminal proceedings hereinafter mentioned may be taken. If the persons, corporation, or association owning or controlling any railroad or other bridge shall, after receiving notice to that effect, as herein before required, from the Secretary of War, and within the time prescribed by him, willfully sail or refuse to remove the same or to comply with the lawful order of the Secretary of War in the premises, such persons, corporation, or association shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not
exceeding five thousand dollars, and every month such persons, corporation, or association shall remain in default in respect to the removal or alteration of such bridge shall be deemed a new offense and subject the persons, corporation, or association so offending to the penalties above prescribed: Provided, That in any case arising under the provisions of this section an appeal or writ of error may be taken from the district courts or from the existing circuit courts direct to the Supreme Court either by the United States or by the defendants.
This section superseded sections 9 and 10 of the act of August 11, 1888 (25 Stat., 424), as amended by sections 4 and 5 of the act of September 19, 1890 (26 Stat., 453), covering the same subject.
There can be no doubt that the authority conferred upon the Secretary of War by section 18 of the act of March 3, 1899, was intended to cover bridges constructed under the authority of acts of Congress, since, by preceding sections of the same act provision was made for the case of structures of that nature unauthorized by Congress. (Secs. 9, 10, 12.) The legislation which was superseded by the act of March 3, 1899, also contained similar provisions. (Act of September 19, 1890, secs. 7, 10; 26 Stat., 454; as amended by the act of July 13, 1892, sec. 3; 27 Stat., 110.)
In his opinion in the Bellaire Bridge case (22 Opin., 343, 347) Attorney-General Griggs, who took the view above expressed as to the principles to be deduced from the case of Bridge Company v. United States (105 U. S., 470), was of opinion that section 4 of the act of September 19, 1890, which was superseded by section 18 of the act of March 3, 1899, and which conferred like authority upon the Secretary of War in respect to bridges over the navigable waterways of the United States, would not be sufficient authority to warrant the Secretary of War in requiring changes to be made in the Bellaire bridge, erected under the act of July 14, 1862, at the expense of the owner, without compensation. “The act of 1890,” he said, “must be construed to apply only to such bridges as are constructed under the authority of an act of Congress, either the act of 1872 or under a special act, which expressly reserved to Congress the right to require changes or modifications in the structure.” The same conclusion must be reached in regard to the act of March 3, 1899. So far, therefore, as the bridges here in question are concerned, this leaves section 18 of that act applicable only to those erected under the acts of December 17, 1872, and February 14, 1883.
Question has been made, however, as to the power of Congress to delegate to the Secretary of War authority to declare that bridges lawfully erected over the navigable waters of the United States are obstructions or unreasonable obstructions to navigation and must be remodeled or removed. In United States v. Keokuk Bridge Company (45 Fed., 176, 182), District Judge Shiras held that Congress could not do so “ without abdicating its paramount and conclusive authority in the regulation of the commercial high ways of the country;" and his opinion was adopted by Judge Sage in United States v. Rider (50 Fed., +06).
The opposite view was taken by Acting Attorney-General J. M. Dickinson in his opinion in the Moline Bridge case (21 Opin., 430). United States v. City of Moline (82 Fed., 592), which related to the same bridge, Judge Grosscup reached a like conclusion, and in E. A. Chatfield Co. v. City of New Haven (110 Fed., 788) Judge Shipman expressed his concurrence in Judge Grosscup's opinion.
In my judgment, the latter view-that Congress can constitutionally delegate to the Secretary of War the power in question- is fully supported by the decisions of the Supreme Court.
In Wisconsin v. Duluth (96 U. S., 379, 383, 387), where certain acts of the Federal Government for the improvement of the harbor at Duluth were in question, the court, speaking by Mr. Justice Miller, said that it was to be observed that the whole system of river and
" lake and harbor improvements, whether on the seacoast or on the lakes or the great navigable rivers of the interior, has for years been mainly under the control of that Government, and that, whenever it has taken charge of the matter, its right to an exclusive control has not been denied.” “The operations of the Government in this regard,” he said, “have been conducted by the Bureau of Engineering, as part of the War Department, to which Congress has confided the execution of its wishes in all these matters.” And referring to the acts there in question, he said that there could be no doubt that such action was within the constitutional power of Congress; that it was a power which has been exercised ever since the Government was organized under the Constitution, and that “the only question ever raised has been how far and under what circumstances the exercise of the power is exclusive of its exercise by the States."
In Miller v. Mayor of New York (109 U. S., 385) it was held competent for Congress to empower the Secretary of War to determine whether a proposed bridge over a navigable water of the United States would injuriously obstruct navigation and make the lawful character of the structure depend upon his approval. Speaking by Mr. Justice Field, the court said (pp. 393-394):
It is contended by the plaintiff with much earnestness that the approval of the Secretary of War of the plan and location of the bridge was not conclusive as to its character and effect upon the navigation of the river, and that it was still open to him to show that, if constructed as proposed, it would be an obstruction to such navigation as fully as though such approval had not been had. It is argued that Congress could not give any such effect to the action of the Secretary, it being judicial in its character. There is in this position a misapprehension of the purport of the act. By submitting the matter to the Secretary, Congress did not abdicate any of its authority to determine what should or should not be deemed an obstruction to the navigation of the river. It simply declared that, upon a certain fact being established, the bridge should be deemed a lawful structure, and employed the Secretary of War as an agent to ascertain that fact. Having power to regulate commerce with foreign nations and among the several States, and navigation being a branch of that commerce, it has the control of all navigable waters between the States, or connecting with the ocean, so as to preserve and protect their free navigation. Its power, therefore, to determine what shall not be deemed, so far as that commerce is concerned, an obstruction, is necessarily paramount and conclusive. It may in direct terms declare absolutely, or on conditions, that a bridge of a particular height shall not be deemed such an obstruction; and, in the latter case, make its declaration take effect when those conditions are complied with. The act in question, in requiring the approval of the Secretary before the construction of the bridge was permitted, was not essentially different from a great mass of legislation directing certain measures to be taken upon the happening of particular contingencies or the ascertainment of particular information. The execution of a vast number of measures authorized by Congress, and carried out under the direction of heads of departments, would be defeated if such were not the case. The efficiency of an act as a declaration of legislative will must, of course, come from Congress, but the ascertainment of the contingency upon which the act shall take effect may be left to such agencies as it may designate. (South Carolina v. Georgia, 93 U. S., 13.)
The only difference between that and the present case is this: In that case the right to build a bridge was made to depend upon the determination of the Secretary of War that it would not injuriously obstruct
navigation. In the present case, the right to maintain a bridge already built is made so to depend. But this difference does not affect the character of the power devolved upon the Secretary. If administrative in the one case it must be so in the other. The fact that the act of March 3, 1899, refers to existing bridges lawfully erected, concerns only the power of Congress to require their alteration or removal. As we have seen, that power necessarily exists in Congress, the only
, question which can arise being whether the alteration or removal of a bridge shall be at the expense of the Government or of the bridge
So far as respects bridges constructed under the authority of the acts of December 17, 1872, and February 14, 1883, this latter question is settled by the express reservation therein of the right to alter, amend, or repeal the acts so as to prevent or remove all material obstructions to navigation without liability on the part of the Government. It is the ascertainment of this contingency merely that has been devolved upon the Secretary of War by the act of March 3, 1899. The efficiency of that act as a declaration of legislative will necessarily comes from Congress.
In Luke Shore and Michigan Railway v. Ohio (165 U. S., 365) the court, replying to the contention that Congress, by the corresponding act of September 19, 1890, had assumed entire control over all the navigable
waters of the United States, including those situated wholly within a State, said (pp. 367-368):
On the face of this statute it is obvious that it does not support the claim based upon it. Conceding, without deciding that the words “waterways of the United States," therein used, apply to all navigable waters, even though they be wholly situated within a State, and passing, also, without deciding, the contention that Congress can lawfully delegate to the Secretary of War all its power to authorize structures of every kind over all navigable waters, nothing in the statute gives rise even to the implication that it was intended to confer such power on the Secretary of War. The mere delegation to the Secretary of the right to determine whether a structure authorized by law has been so built as to impede commerce, and to direct, when reasonably necessary, its modification so as to remove such impediment, does not confer upon that officer power to give original authority to build bridges, nor does it presuppose that Congress conceived that it was lodging in the Secretary power to that end.
In Field v. Clark (143 U. S., 649) it was held not to be an unconstitutional transfer of legislative power for Congress to authorize the President to suspend, by proclamation, the free importation of certain articles, when satisfied that any country producing such articles imposed duties or other exactions upon the agricultural or other products of the United States which he might deem to be reciprocally unequal or unreasonable. The court said (p. 693):
As the suspension was absolutely required when the President ascertained the existence of a particular fact, it can not be said that in ascertaining that fact and in issuing his proclamation, in obedience to the legislative will, he exercised the function of making laws. Legislative power was exercised when Congress declared that the suspension should take effect upon a named contingency. What the President was required to do was simply in execution of the act of Congress. It was not the making of law. He was the mere agent of the law-making department to ascertain and declare the event upon which its expressed will was to take effect.
These observations seem to apply with equal force to the situation presented by the act of March 3, 1899. The finding of the Secretary of War that a certain bridge is an unreasonable obstruction to navigation does not of itself make its further maintenance unlawful. That comes from the declaration of Congress that the navigation through or under such a bridge shall be reasonably free, easy, and unobstructed.