The Secretary simply ascertains and declares the event upon which the expressed will of Congress is to take effect.

În the recent case of Buttfield v. Stranahan (192 U. S., 470) the Supreme Court upheld the act of Congress forbidding the importation of tea inferior in purity, quality, and fitness for consumption to certain standards authorized to be fixed by the Secretary of the Treasury. In answer to the contention that the statute committed the determination of what tea might be imported to the arbitrary discretion of the Secretary, and therefore, in effect, vested him with legislative power, the court said (p. 496):

* *

*

We are of opinion that the statute, when properly construed, as said by the circuit court of appeals, but expresses the purpose to exclude the lowest grades of tea, whether demonstrably of inferior quality, or unfit for consumption, or presumably so because of their inferior quality. This, in effect, was the fixing of a primary standard, and devolved upon the Secretary of the Treasury the mere executive duty to effectuate the legislative policy declared in the statute. We may say of the legislation in this case, as was said of the legislation considered in Field v. Clark, that it does not, in any real sense, invest administrative officials with the power of legislation. Congress legislated on the-subject as far as was reasonably practicable, and from the necessities of the case was compelled to leave to executive officials the duty of bringing about the result pointed out by the statute.

The primary standard in effect fixed by the tea-inspection act, the court said, was "purity, quality, and fitness for consumption." That fixed by the act in question, so far as regards the obstruction of navigation by bridges, is "reasonableness." The one is no more definite and precise than the other; but in this case, as in that, it may be said thatCongress legislated on the subject as far as was reasonably practicable, and from the necessities of the case was compelled to leave to executive officials the duty of bringing about the result pointed out by the statute."

Section 11 of the act of March 3, 1899, provides that

where it is made manifest to the Secretary of War that the establishment of harbor lines is essential to the preservation and protection of harbors, he may, and is hereby, authorized to cause such lines to be established, beyond which no piers, wharves, bulkheads, or other works shall be extended or deposits made, except under such regulations as may be prescribed from time to time by him. (30 Stat., 1151.)

In an opinion rendered June 8, 1899 (22 Opin., 501, 511), AttorneyGeneral Griggs held that, under the express authority given by this section, the Secretary of War was authorized to establish harbor lines whenever the interests of commerce require them, to restrict the encroachment of wharves, piers, etc., upon the waters of harbors, “and this notwithstanding the objection sometimes urged that this and kindred legislation are attempts to confer legislative or judicial power upon heads of departments or executive officers." "The power to determine the necessity for and location of harbor lines in a given harbor," said Mr. Griggs, "is obviously no more obnoxious to this criticism than is the power to determine whether the East River Bridge in New York will, if built according to a proposed plan, obstruct or impair the navigation of that river. And the conferring upon the Secretary of War the power to determine this is distinctly upheld in Miller v. Mayor of New York." (109 U. S., 385.)

After quoting the language of Mr. Justice Field in that case, and that of Mr. Justice Miller in Wisconsin v. Duluth, above cited, he said (p. 512):

This delegation of the power is spoken of in these cases approvingly and as within the constitutional ower of Congress, and any objection upon the ground of conferring

legislative or judicial power must now be too late, even if it would have had any force at any time.

In view of these authorities I have no hesitancy whatever in saying that the authority conferred upon the Secretary of War by section 18 of the act of March 3, 1899, is a lawful delegation of power.

It will be observed that the act in question does not authorize the Secretary of War to act arbitrarily. The party concerned is entitled to a hearing; to receive notice and a specification of the alterations required, and to have a reasonable time in which to make the prescribed changes. Not until all these steps have been taken does a willful failure to comply with the directions of the Secretary become a punishable offense.

There can be no doubt as to the power of Congress to attach this consequence to a failure to observe the requirements of the Secretary. Regulations prescribed by executive officials, under authority granted by Congress, it has been held, are regulations prescribed by law and have the force of law. The only question which can be made, where the authority granted was properly delegated, is as to the intention of Congress to make the violation of such regulations a criminal offense (United States v. Eaton, 144 U. S., 677). If, as here, the purpose to do so is clearly expressed, the power can not be doubted. (In re Kollock, 165 U. S., 526.)

It will be observed that the reservation by Congress in the acts of December 17, 1872, and February 14, 1883, is of the right to alter or amend those acts so as to prevent or remove all "material" obstructions to navigation by the future construction of bridges without any liability of the Government for damages on that account. In view of this qualification, a bridge constructed under the authority of either of those acts can not be deemed an "unreasonable" obstruction to navigation within the meaning of section 18 of the act of March 3, 1899, whose alteration may be required at the expense of the owner without compensation unless it is a material one. In fact it may be said that this is necessarily the meaning of the word "unreasonable" in the act in question. That act, as already stated, was undoubtedly intended to apply to bridges erected under authority of law. A bridge so erected certainly could not be declared an unreasonable obstruction to navigation unless it was a material one.

This disposes of all the questions upon which my opinion is directed by the act of June 13, 1902.

Respectfully,

THE SECRETARY OF WAR.

W. H. MOODY.

DD 5.

PRELIMINARY EXAMINATION OF CHANNELS IN OHIO RIVER AT OR NEAR ELIZABETHTOWN, ILLINOIS.

[Printed in House Doc. No. 79, Fifty-eighth Congress, second session.]

WAR DEPARTMENT,

OFFICE OF THE CHIEF OF ENGINEERS,

Washington, December 1, 1903.

SIR: I have the honor to submit herewith a report, dated August 7, 1903, by Col. G. J. Lydecker, Corps of Engineers, on preliminary

examination of Ohio River channels at or near Elizabethtown, Ill., made in compliance with a requirement of the river and harbor act of June 13, 1902.

The channel of the Ohio River at this point is divided by Hurricane Island, the through channel of the river being between this island and the Kentucky shore, and the proposed improvement contemplates the closing of this channel and opening a new channel between the island and the Illinois shore in front of Elizabethtown.

It is the opinion of Colonel Lydecker that the abandonment of the channel now in use and the improvement of that north of Hurricane Island is not desirable nor in the interest of general navigation or commerce; also, that the local commerce of Elizabethtown, present and prospective, is so limited that the creation and maintenance by the United States of a channel of approach to that point is not advisable. This opinion is concurred in by the Board of Engineers for Rivers and Harbors, which has reviewed this report under the provisions of sections 3 and 14 of the above-mentioned act, and I concur in the conclusions of the Board as expressed in its report of August 19, 1903. Very respectfully, your obedient servant,

G. L. GILLESPIE, Brig. Gen., Chief of Engineers, U. S. Army.

Hon. EIHU ROOT,
Secretary of War.

REPORT OF COL. G. J. LYDECKER, CORPS OF ENGINEERS.

UNITED STATES ENGINEER OFFICE,
Cincinnati, Ohio, August 7, 1903.

GENERAL: In compliance with Department letter of June 23, 1902, I have the honor to submit the following report on a preliminary examination, called for by the river and harbor act of June 13, 1902, of "Ohio River, channels at or near Elizabethtown," Ill.

The Ohio River in this locality is divided by Hurricane Island, which is about 4.5 miles long with an extreme width of about threefourths of a mile; the through channel is between this island and the Kentucky shore, while Elizabethtown lies on the Illinois shore of the channel on the other side, and opposite the lower end of the island, where ready access by water at low stages of the river is impracticable. A complete survey of this section of the river was made in November and December, 1894, report of which was submitted by Col. Amos Stickney, Corps of Engineers, January 31, 1896, and published_as House Document No. 238, Fifty-fourth Congress, first session, together with map showing in detail the then existing conditions of both channels. This report presented a project for closing the channel on the Kentucky side of the Hurricane Island and improving the back channel on the Illinois side, at an estimated cost of $95,000 in round numbers. In this report it is stated that the

advantages of having the channel on the right [Illinois] side of the island are that Elizabethtown would become accessible to boats at all stages; the channel at stages when large coal tows run would be wider and straighter; the low-water channel

would be much better by eliminating two river crossings, one at the head and one
at the foot of Hurricane Island. The existing crossing at the head is a very bad and
sometimes dangerous one.

An earlier survey of the same locality was made by Maj. William E.
Merrill, in 1880, and special attention is invited to his very full and
instructive report thereon. It will be found in the published Annual
Report of the Chief of Engineers for 1881, pages 1922-1926. He
roughly" estimates the cost of closing the channel on the Kentucky
side, exclusive of any work in the channel on the Illinois side, at
$150,000, and concludes his report as follows:

66

Inasmuch as the proposed change would be of no benefit to general commerce, I
would earnestly recommend that, should Congress see fit to order it, a special appro-
priation be made for the work, as the general appropriation for the Ohio River is
never large enough to build the works that are urgently demanded for general com-
merce, and consequently many dikes whose construction would greatly benefit navi-
gation are necessarily postponed from year to year.

After careful * * % personal examination of the locality last
season and full consideration of a more detailed examination made
later under my directions by Assistant Engineer J. N. Caldwell, I am
of the opinion that the conclusions reached by Major Merrill in 1881
apply with equal and probably greater force to the conditions now
existing. At that time, as also at the time of Colonel Stickney's later
survey in 1894, the population of Elizabethtown was reported at about
800, but present statistics indicate a reduction to 668. It also appears
that the channel on the Illinois side of Hurricane Island has been gradu-
ally filling up in recent years, the bar at the head being higher than in
1894 and that at the foot having extended nearly half a mile farther
downstream. At the time of this examination (October, 1902) the
river was at a stage of from 2.4 to 7.3 feet above low water, as shown
by the nearest regular gauge, being that at Evansville, 94 miles above.
Elizabethtown, but the wharf boat for the local landing at the latter
point was then located about 2,000 feet downstream from the position
it occupied in 1894, and it is reported that its low-water location would
now be nearly a mile below the berth it occupied in 1894.

It is safe to say that the cost of closing the present channel on the
Kentucky side of Hurricane Island, and opening one approximately as
good for general navigation on the Illinois side, would now be not
less than $250,000; the cost that would attach to the maintenance of
the latter channel after securing it is wholly a matter of guesswork.
I am therefore of the opinion that the abandonment of the channel now
in use, and improvement of that north of Hurricane Island as a sub-
stitute, is not desirable, nor is such course required in the interest of
general navigation or commerce; also that the local commerce of
Elizabethtown, present and prospective, is so limited that the creation
and maintenance by the Government of a special channel of approach
to that point is not advisable.

Very respectfully, your obedient servant,

Brig. Gen. G. L. GILLESPIE,

G. J. LYDECKER,
Colonel, Corps of Engineers.

Chief of Engineers, U. S. A.

[First indorsement.]

OFFICE CHIEF OF ENGINEERS, U. S. ARMY,

August 14, 1903.
Respectfully referred to the Board of Engineers for Rivers and
Harbors, constituted by Special Orders, No. 24, Headquarters, Corps
of Engineers, series of 1902, for consideration and recommendation.
By command of Brigadier-General Gillespie:
A. MACKENZIE,

Colonel, Corps of Engineers.

[Second indorsement.]

BOARD OF ENGINEERS FOR RIVERS AND HARBORS,
Washington, D. C., August 19, 1903.

Respectfully returned to the Chief of Engineers, United States Army.
The Board of Engineers for Rivers and Harbors has considered the
within report of the district officer on a preliminary examination of
"Ohio River, channels at or near Elizabethtown," Ill., and other data
available.

The Board agrees with the district officer in the opinion that the
closing of the channel on the Kentucky side of Hurricane Island and
the opening up of a channel on the Illinois side are not desirable in the
interests of the general navigation of the Ohio River, and that the
present and prospective commerce of Elizabethtown is not sufficient to
justify the great expense of the works that would be required to effect
these changes or even the less expensive works required to provide a
special channel of approach to this town.
For the Board:

CHAS. J. ALLEN,
Lieut. Col., Corps of Engineers,
Senior Member of Board.

D D 6.

PRELIMINARY EXAMINATION OF MOUND CITY HARBOR, OHIO RIVER,
ILLINOIS.

[Printed in House Doc. 171, Fifty-eighth Congress, second session.]

SIR: I have the honor to submit herewith, for transmission to Con-
gress, report of October 27, 1903, by Col. G. J. Lydecker, Corps of
Engineers, on preliminary examination authorized by the river and
harbor act approved June 13, 1902, of-

Harbor at Mound City, on the Illinois side of the Ohio River, with a view to ascer-
taining whether or not work at that point is necessary in the interest of navigation
for the preservation and improvement of said harbor.

This report has been referred for consideration by the Board of
Engineers for Rivers and Harbors, as provided in sections 3 and 14
of said act, and attention is respectfully invited to the Board's report
of December 2, 1903, in second indorsement thereon.