Commerce comprehends navigation, and to free navigation from
unreasonable obstructions by compelling the removal of bridges
which are such obstructions is a legitimate exercise by Congress of
its power to regulate commerce.
Congress when enacting that navigation be freed from
unreasonable obstructions arising from bridges which are of
insufficient height or width of span or are otherwise defective,
may, without violating the constitutional prohibition against
delegation of legislative or judicial power, impose upon an
executive officer the duty of ascertaining what particular cases
come within the prescribed rule.
Page 204 U. S. 365
Requiring alteration to secure navigation against unreasonable
obstruction is not taking private property for public use within
the meaning of the Constitution; the cost of such alterations are
incidental to the exercise of an undoubted function of the United
States, exerting through Congress its power to regulate commerce
between the state.
Although a bridge erected over a navigable water of the United
States under the authority of a state charter may have been lawful
when erected and not an obstruction to commerce as then carried on,
the owner erected it with knowledge of the paramount authority of
Congress over navigation and subject to the power of Congress to
exercise it authority to protect navigation by forbidding
maintenance when it became an obstruction thereto.
The silence or inaction of Congress when individuals, acting
under state authority, place unreasonable obstruction in waterways
of the United States does not cast upon the government any
obligation not to exercise its constitutional power to regulate
commerce without compensating such parties.
The provision in § 18 of the River and Harbor Act of 1899,
30 Stat. 1121, 1153, providing for the removal or alteration of
bridges which are unreasonable obstruction to navigation after the
Secretary of War has, pursuant to the procedure prescribed in the
act, ascertained that they are such obstructions, are not
unconstitutional either as a delegation of legislative or judicial
power to an executive officer or as taking of property for public
use without compensation.
143 F. 377 affirmed.
This is a proceeding in the nature of a criminal information in
the District Court of the United States for the Western District of
Pennsylvania against the Union Bridge Company, a corporation of
Pennsylvania owning and controlling a bridge across the Allegheny
River near where it joins the Monongahela River to form the Ohio
River -- the Allegheny River being a navigable waterway of the
United States, having its source in New York and being navigable in
both New York and Pennsylvania.
Stating the matter generally, the Secretary of War found the
bridge to be an unreasonable obstruction to the free navigation of
the Allegheny River, and required the Bridge Company to make
certain changes or alterations in order that navigation be rendered
reasonably free, easy, and unobstructed. These alterations, it was
charged, the company willfully failed
Page 204 U. S. 366
and refused to make. Hence the present information against it.
There was a verdict of guilty, followed by a motion in arrest of
judgment, which motion being overruled, the company was sentenced
to pay a fine of $5,000. To review that order this writ of error is
prosecuted.
The information was based on § 18 of the River and Harbor
Act of March 3, 1899, which provides:
"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 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 made, the Secretary of
War shall forthwith 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 hereinbefore required, from the Secretary of War, and
within the time prescribed by him, willfully fail 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,
Page 204 U. S. 367
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."
30 Stat. 1121, 1153, c. 425.
Legislation similar in its general character can be found in
river and harbor acts passed at previous sessions of Congress. Act
of 1884, 23 Stat. 133, 148, c. 229; Act of April 11, 1888, 25 Stat.
400, 424, 425, c. 860, §§ 9, 10, and Act of September 19,
1890, 26 Stat. 426, 453, c. 907, §§ 4, 5. Finally, we
have the Act of March 23, 1906, 34 Stat. 84, c. 1130, §§
4, 5, which covers the same ground as the act of 1899 under which
the present information was filed.
It appears that the Bridge Company was incorporated by an act of
the Pennsylvania Legislature approved March 13, 1873, with
authority to construct a bridge over the Allegheny River in the
City of Allegheny. That act contains this proviso:
"That the erection of said bridge shall not obstruct the
navigation of said river so as to endanger the passage of rafts,
steamboats, or other watercrafts, and the piers shall not be so
placed as to interfere with towboats proceeding out with their tows
made up, and shall be constructed in such manner as to meet the
requisitions of the law in regard to the obstructions of
navigation."
The bridge was constructed in 1874 and 1875, and has been in use
since 1875.
In 1902, a petition was sent to the Secretary of War by persons,
corporations, and companies in and about Pittsburgh, which
contained, among other things, these statements:
"There can be no doubt whatever that this bridge is an
unreasonable obstruction to the free navigation of the Ohio,
Monongahela, and Allegheny Rivers on account of insufficient
Page 204 U. S. 368
height and the filling in of the river or rivers over which it
passes in order to provide approaches for it. We respectfully
request that you will investigate this matter, having full
confidence that, after making such investigation, you will find it
to be your duty to take action against its owners, the Union Bridge
Company, under the provisions of Section 18 of the River and Harbor
Act, approved March 3, A.D. 1899. . . . It was built of such a low
height above the water as to cause the almost complete obstruction
of all the packet and towboat trade passing from the Allegheny
River into the Ohio and Monongahela Rivers, and from these rivers
into the Allegheny. In building it, the width of the river was very
materially narrowed, as already stated, by the fills made for the
approaches. The river commerce of Pittsburgh, as you are aware, is
of very great magnitude and importance, and is rapidly increasing
in volume. For the last calendar year it amounted to 10,916,489
tons, being about equal to that of the harbor of New York. The
extension of the manufacturing industries of Pittsburgh up the
Allegheny River is making it of much greater importance than
heretofore that the navigation to and from that river should not be
obstructed. The present time is peculiarly appropriate for action
by you. The Union Bridge is an old, wooden structure, and will soon
need -- in fact, it already needs -- extensive repairs to make it
safe for public use. Therefore, as the bridge in question deprives
the community of a reasonable use of the Allegheny River in
connection with the river business of this great harbor, we appeal
to you to exercise the powers committed to you to abate, or to at
least mitigate, this great public nuisance as you shall find
yourself justified by the law and the facts of the case."
The matter was referred by the Secretary of War to the proper
officers of the Engineer Corps of the Army for examination and
report. Such examination was had upon notice to the Bridge Company,
and, under date of December 8, 1902, Capt. Sibert, captain of
engineers, who conducted the examination, reported and recommended
to the Chief of Engineers
Page 204 U. S. 369
that the company be given notice to make certain alterations in
its bridge.
On December 16, 1902, the Chief of Engineers transmitted that
report to the Secretary of War, saying:
"As required by the law and the instructions of the War
Department, a public hearing has been held, after due
advertisement, and all interested parties have been afforded an
opportunity to present their views. Attention is respectfully
invited to the accompanying report on the subject, dated the 8th
instant, by Captain Sibert, and to its accompanying papers. In this
report, Captain Sibert fully discusses all phases of the question
and shows that, without reference to the use of the Allegheny River
for through navigation, the bridge in question is an unreasonable
obstruction, and practically a bar to the use of that portion of
Pittsburgh Harbor situated on the river. He states that none of the
boats engaged in interstate commerce from Pittsburgh, south and
west, can reach at low water a single manufacturing plant or wharf
in the cities of Pittsburgh and Allegheny on the Allegheny River.
He submits a photograph to show that the portion of Pittsburgh
Harbor in the Monongahela River is crowded with shipping, while
that portion in the Allegheny has none, all due to the existence of
the Union Bridge. It is also shown by the evidence that the lower
portion of the Allegheny River would be of great importance as a
harbor of refuge when ice is running out of the Monongahela River
if it were not obstructed by the Union Bridge. He reaches the
conclusion, based on the facts developed at the hearing, that, in
order to give the shipping at Pittsburgh increased harbor room and
to enable it to connect with wharves and manufacturing plants in
that part of the harbor located on the Allegheny River, the Union
Bridge should be so raised as to provide a channel-span with a
clear height of 70 feet, the same as exists under the bridge known
as the 'Point Bridge' on the Monongahela River, and the same that
will exist under the Wabash Railroad bridge just being built,
immediately above the Point Bridge. It appears that this
Page 204 U. S. 370
bridge was built in 1873-1874 by the Union Bridge Company,
incorporated under authority of an act of the Pennsylvania
legislature of March 13, 1873, and that it has been the subject of
complaint on the part of the navigation interests practically ever
since its completion. Numerous investigations have been made by
different engineer officers, who have held public hearings on the
subject and who have concurred in expressing the opinion that the
bridge was an unreasonable obstruction to navigation, and that it
should be raised so as to give a headroom equal at least to that of
the aforesaid Point Bridge at the mouth of the Monongahela River.
The Union Bridge is situated at the mouth of the Allegheny River,
and there seems to be no room for doubt that the alteration of the
bridge is essential to the reasonable use for navigation and
commercial purposes of that portion of the river forming a part of
Pittsburgh Harbor. Captain Sibert recommends that the bridge in
question be so altered as to give two navigable spans extending
riverwards from the left abutment, of not less than 394 feet clear
width each; the second span from the Pittsburgh shore to give a
clear headroom over the Davis Island pool of not less than 70 feet,
and the first span from the same shore to give a headroom of not
less than 70 feet at the pier and 62 feet at the abutment; also
that the piers of the altered structure shall have no riprapping or
other pier protection above an elevation of 10 feet below the
surface of Davis Island pool, and that all parts of the old
structure not comprised in the new construction, and in conformity
with the above requirements, shall be wholly removed. The period of
eighteen months is considered by him ample time within which to
make these alterations. I concur in his views and recommend that
notice be served on the Bridge Company, requiring the alterations
to be made and completed as specified by him."
Under date of twentieth of January, 1903, Mr. Root, then
Secretary of War, issued a formal notice to the Bridge Company,
stating that he had good reason to believe that its bridge was an
unreasonable obstruction to free navigation. The
Page 204 U. S. 371
notice informed the company of the alterations of its bridge
recommended by the Chief of Engineers as necessary, and
concluded:
"And whereas, eighteen months from the date of service of this
notice is a reasonable time in which to alter the said bridge as
described above, now therefore, in obedience to, and by virtue of,
section eighteen of an act of the Congress of the United States
entitled 'An Act Making Appropriations for the Construction,
Repair, and Preservation of Certain Public Works on Rivers and
Harbors, and for Other Purposes,' approved March 3, 1899, I, Elihu
Root, Secretary of War, do hereby notify the said Union Bridge
Company to alter the said bridge as described above, and prescribe
that said alterations shall be made and completed on or before the
expiration of eighteen months from the date of service hereof."
At the request of the Bridge Company, the time fixed by
Secretary Root for altering, changing, and elevating the bridge was
extended by his successor, Secretary Taft, to December 1, 1904. By
order of the latter officer, the time was extended to January 1,
1905.
Subsequently, a rehearing was asked for by the Bridge Company,
but the rehearing was refused, and Secretary Taft made the
following order:
"The Union Bridge is an unreasonable obstruction to commerce of
the Allegheny River. If the bridge were not there, the winter
refuge which the stretch of the Allegheny River up to the next
bridge would offer for the fleet of boats which usually are moored
in the Monongahela would be a very great advantage for navigation
and commerce on the Ohio River and its tributaries. The two rivers,
the Allegheny and the Monongahela, because they rise in different
sections of the country, have their ice breaks at different times
in the early spring. The mouth of the one offers very desirable
refuge to the vessels that are exposed to danger from the breaking
up of ice in the headwaters of the other. The Union Bridge, at the
mouth of the Allegheny, was erected at a time when the Secretary of
War was not given specific control over navigable streams, and was
not authorized
Page 204 U. S. 372
to inhibit the construction of bridges which were likely to
obstruct navigation; but it appears that an army engineer, Colonel
Merrill, in charge of the district, publicly announced that this
bridge was an obstruction to navigation when it was erected. It was
erected, therefore, in the face of the information given by the
best authority that could be consulted in that matter in the
government. These are the facts that I find independently of any
previous adjudication, but added to this is the finding of my
predecessor, Mr. Root, to exactly the same effect, upon which he
based an order that the bridge, as an obstruction to navigation, be
abated. This matter is now before me on a petition for rehearing of
Mr. Root's order. As an original question, I should have ruled as
Mr. Root ruled, and
a fortiori because the orders of this
Department are not to be lightly set aside, and are to be treated
as a decree in equity would be, and be set aside only upon a
showing of a palpable error or mistake. The petition for rehearing
is denied, and the order suspending the operation of Mr. Root's
order is now revoked. The order will be put in full force and
executed by the proper officers, and the Union Bridge will be
notified accordingly."
In the opinion of the district court, delivered on a motion in
arrest of judgment, it was said:
"The obstruction here involved consists of a bridge over the
Allegheny River just above its junction with the Monongahela at
Pittsburgh. The Allegheny River rises in Pennsylvania, flows north
into New York State, and thence back into Pennsylvania. The latter
state, by Act of March 21, 1798, enacted the Allegheny, from the
New York state line to its mouth, a navigable stream, and the State
of New York, by Act of March 31, 1807, did likewise in its counties
of Genesee and Allegheny. The Allegheny is the principal branch of
the Ohio, its volume being six times greater than that of the
Monongahela. It is included in the general plan for the improvement
by the national government of local interstate waterways and the
harbor of Pittsburgh. The government has built, or has now in
process of construction,
Page 204 U. S. 373
a system of locks and dams on the Allegheny which will
slackwater the stream for twenty-seven miles from its mouth. The
Davis Island dam, situate five miles below Pittsburgh on the Ohio
River, raises the water in the Allegheny and Monongahela at their
junction six feet above their normal depths, and backs its water to
the first dams of the Allegheny and Monongahela slackwater systems,
respectively. These waters form the harbor of Pittsburgh, the
importance of which harbor will be appreciated from the fact that
the tonnage in water transportation passing from it the past year
exceeded that of the Suez Canal for the same period. From its size,
interstate relation, and its being a part of this really great
harbor, it will be seen that the Allegheny answers the requirement
of a navigable stream,
The Montello, 11 Wall. 411,
and is also one over which the national government has assumed
jurisdiction. The Union Bridge is a pier-supported wooden
structure; it crosses from Pittsburgh to Allegheny City, and is the
first bridge on the Allegheny. "
Page 204 U. S. 377
MR. JUSTICE HARLAN delivered the opinion of the Court.
The first principal question raised by the defendant is whether
the 18th section of the River and Harbor Act of March 3, 1899, is
in violation of the Constitution of the United States as delegating
legislative and judicial powers
Page 204 U. S. 378
to the head of an executive department of the government. This
question, the government contends, has been determined in its favor
by the principles heretofore announced by this Court, and need not
be discussed as if now presented for the first time. In its
judicial as well as legal aspects, the question is of such
importance as to justify a full reference to prior decisions.
The earliest case is that of
The Aurora
v. United States, 7 Cranch 382, which involved the
question whether Congress could make the revival of a law (which
had ceased to be in force) depend upon the existence of certain
facts, to be ascertained by the President and set forth in a
proclamation by him. The Court said:
"We can see no sufficient reason why the legislature should not
exercise its discretion in reviving the Act of March 1, 1809,
either expressly or conditionally, as their judgment should direct.
The 19th section of that act, declaring that it should continue in
force to a certain time, and no longer, could not restrict their
power of extending its operation without limitation upon the
occurrence of any subsequent combination of events."
Referring to this language, we said in the subsequent case of
Field v. Clark, 143 U. S. 649,
143 U. S.
683:
"This certainly is a decision that it was competent for Congress
to make the revival of an act depend upon the proclamation of the
President, showing the ascertainment by him of the fact that the
edicts of certain nations had been so revoked or modified that they
did not violate the neutral commerce of the United States. The same
principle would apply in the case of the suspension of an act upon
a contingency to be ascertained by the President and made known by
his proclamation."
In
Wayman v.
Southard, 10 Wheat. 1,
23 U. S. 43,
23 U. S. 45-46,
Chief Justice Marshall, delivering the unanimous judgment of the
Court, said that, although Congress could not delegate to the
courts or to any other tribunals powers strictly and exclusively
legislative, and although the line had not been exactly drawn that
separates the important subjects which must be entirely
Page 204 U. S. 379
regulated by the legislature itself from those of less
interest
"in which a general provision may be made, and powers given to
those who are to act under such general provisions to fill up the
details,"
yet "Congress may certainly delegate to others powers which the
legislature may rightly exercise itself," and "the maker of the law
may commit something to the discretion of the other
departments."
In
Field v. Clark, just cited,
143 U.
S. 649,
143 U. S. 680,
143 U. S. 683,
143 U. S.
691-692, the question arose as to the constitutionality
of that section of the McKinley Tariff Act of 1890 which provided
for the imposition, in a named contingency (to be determined by the
President and manifested by his proclamation), of duties upon
sugar, molasses, and other specified articles which the act had
placed in the free list. By that section it was declared that,
"with a view to secure reciprocal trade with countries producing
the following articles and for this purpose, on and after the first
day of January, eighteen hundred and ninety-two, whenever, and so
often as the President shall be satisfied that the government of
any country producing and exporting sugars, molasses, coffee, tea,
and hides, raw and uncured, or any of such articles, imposes duties
or other exactions upon the agricultural or other products of the
United States which, in view of the free introduction of such
sugar, molasses, coffee, tea, and hides into the United States, he
may deem to be reciprocally unequal and unreasonable, he shall have
the power, and it shall be his duty, to suspend, by proclamation to
that effect the provisions of this act relating to the free
introduction of such sugar, molasses, coffee, tea, and hides, the
production of such country for such time as he shall deem just, and
in such case and during such suspension, duties shall be levied,
collected, and paid upon sugar, molasses, coffee, tea, and hides,
the product of or exported from such designated country, as
follows, namely . . ."
Here follows in the act provisions indicating the particular
duties to be collected after the President's proclamation upon
sugars, molasses, coffee, tea, hides, etc. It was contended in the
Field case that the
Page 204 U. S. 380
above section, so far as it authorized the President to suspend
by proclamation the provisions of the act relating to the free
introduction of sugar, molasses, coffee, etc., was unconstitutional
as delegating to him both legislative and treatymaking powers. In
its consideration of this question, the Court, after referring to
the case of
The Aurora, above cited, examined the numerous
precedents in legislation showing to what extent the suspension of
certain provisions and the going into operation of other provisions
of an act of Congress had been made to depend entirely upon the
finding or ascertainment by the President of certain facts, to be
made known by his Proclamation. The acts of Congress which
underwent examination by the Court are noted in the margin.
* The result of
that examination of legislative precedents was thus stated:
"The authority given to the President by the Act of June 4,
1794, to lay an embargo on all ships and vessels in the ports of
the United States, 'whenever, in his opinion, the public safety
shall so require,' and under regulations, to be continued or
revoked, 'whenever he shall think proper;' by the Act of February
9, 1799, to remit and discontinue, for the time being, the
restraints and prohibitions which Congress had prescribed with
respect to commercial intercourse with the French Republic, 'if he
shall deem it expedient and consistent with the interest of the
United States,' and 'to revoke such order whenever, in his opinion,
the interest of the United States shall require;' by the Act of
December 19, 1806, to suspend for a named time the operation of the
nonimportation act of the same year, 'if, in his judgment, the
public interest should require it;' by the Act of May 1, 1810, to
revive a former act as to Great Britain or France if either country
had not by a
Page 204 U. S. 381
named day so revoked or modified its edicts as not 'to violate
the neutral commerce of the United States;' by the Acts of March 3,
1815, and May 31, 1830, to declare the repeal, as to any foreign
nation, of the several acts imposing duties on the tonnage of ships
and vessels, and on goods, wares, and merchandise imported into the
United States, when he should be 'satisfied' that the
discriminating duties of such foreign nations, 'so far as they
operate to the disadvantage of the United States,' had been
abolished; by the Act of March 6, 1866, to declare the provisions
of the act forbidding the importation into this country of neat
cattle and the hides of neat cattle, to be inoperative, 'whenever,
in his judgment,' their importation 'may be made without danger of
the introduction of spread of contagious or infectious disease
among the cattle of the United States' -- must be regarded as
unwarranted by the Constitution if the contention of the appellants
in respect to the third section of the Act of October 1, 1890, be
sustained."
Touching the general question, the Court said:
"That Congress cannot delegate legislative power to the
President is a principle universally recognized as vital to the
integrity and maintenance of the system of government ordained by
the Constitution. The Act of October 1, 1890, in the particular
under consideration, is not inconsistent with that principle. It
does not in any real sense invest the President with the power of
legislation. For the purpose of securing reciprocal trade with
countries producing and exporting sugar, molasses, coffee, tea, and
hides, Congress itself determined that the provisions of the Act of
October 1, 1890, permitting the free introduction of such articles,
should be suspended as to any country producing and exporting them
that imposed exactions and duties on the agricultural and other
products of the United States, which the President deemed -- that
is, which he found to be -- reciprocally unequal and unreasonable.
Congress itself prescribed, in advance, the duties to be levied,
collected, and paid, on sugar, molasses, coffee, tea, or hides,
produced by or exported from such designated country while the
suspension
Page 204 U. S. 382
lasted. Nothing involving the expediency or the just operation
of such legislation was left to the determination of the President.
The words 'he may deem' in the third section, of course, implied
that the President would examine the commercial regulations of
other countries producing and exporting sugar, molasses, coffee,
tea, and hides, and form a judgment as to whether they were
reciprocally equal and reasonable, or the contrary, in their effect
upon American products. But when he ascertained the fact that
duties and exactions, reciprocally unequal and unreasonable, were
imposed upon the agricultural or other products of the United
States by a country producing and exporting sugar, molasses,
coffee, tea, or hides, it became his duty to issue a proclamation
declaring the suspension, as to that country, which Congress had
determined should occur. He had no discretion in the premises
except in respect to the duration of the suspension so ordered. But
that related only to the enforcement of the policy established by
Congress. As the suspension was absolutely required when the
President ascertained the existence of a particular fact, it cannot
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 lawmaking department to ascertain and
declare the event upon which its expressed will was to take effect.
It was a part of the law itself as it left the hands of Congress
that the provisions, full and complete in themselves, permitting
the free introduction of sugars, molasses, coffee, tea, and hides,
from particular countries should be suspended in a given
contingency, and that, in case of such suspensions, certain duties
should be imposed."
Again:
"'The true distinction,' as Judge Ranney, speaking for the
Supreme Court of Ohio, has well said,"
"is between the delegation of power to make the law,
Page 204 U. S. 383
which necessarily involves a discretion as to what it shall be,
and conferring authority or discretion as to its execution, to be
exercised under and in pursuance of the law. The first cannot be
done; to the latter, no valid objection can be made."
"
Cincinnati, Wilmington &c. Railroad v.
Commissioners, 1 Ohio St. 88. In
Moers v. Reading, 21
Pa. 188, 202, the language of the court was:"
"Half the statutes on our books are in the alternative,
depending on the discretion of some person or persons to whom is
confided the duty of determining whether the proper occasion exists
for executing them. But it cannot be said that the exercise of such
discretion is the making of the law."
"So, in
Locke's Appeal, 72 Pa. 491, 498:"
"To assert that a law is less than a law because it is made to
depend on a future event or act is to rob the legislature of the
power to act wisely for the public welfare whenever a law is passed
relating to a state of affairs not yet developed, or to things
future and impossible to fully know."
"The proper distinction, the Court said, was this:"
"The legislature cannot delegate its power to make a law; but it
can make a law to delegate a power to determine some fact or state
of things upon which the law makes, or intends to make, its own
action depend. To deny this would be to stop the wheels of
government. There are many things upon which wise and useful
legislation must depend which cannot be known to the lawmaking
power, and must therefore be a subject of inquiry and determination
outside of the halls of legislation."
"What has been said is equally applicable to the objection that
the third section of the act invests the President with
treatymaking power. The Court is of the opinion that the third
section of the Act of October 1, 1890, is not liable to the
objection that it transfers legislative and treatymaking power to
the President."
The latest case bearing on the general question is
Buttfield
v. Stranahan, 192 U. S. 470,
192 U. S. 496.
That case involved the constitutionality of the act of Congress of
March 2, 1897, 29 Stat. 604, c. 358, relating to the "importation
of impure and unwholesome tea." The act provided for the
appointment by
Page 204 U. S. 384
the Secretary of the Treasury of a board of seven tea experts
who should prepare and submit to him standard samples of that
article. One section of the act provided:
"That the Secretary of the Treasury, upon the recommendation of
the said board, shall fix and establish uniform standards of
purity, quality, and fitness for consumption of all kinds of teas
imported into the United States, and shall procure and deposit in
the custom houses of the ports of New York, Chicago, San Francisco,
and such other ports as he may determine, duplicate samples of such
standards; that said Secretary shall procure a sufficient number of
other duplicate samples of such standards to supply the importers
and dealers in tea at all ports desiring the same at cost. All
teas, or merchandise described as tea, of inferior purity, quality,
and fitness for consumption to such standards shall be deemed
within the prohibition of the first section hereof."
In that case, it was contended that the act was unconstitutional
as making the right to import tea depend upon the arbitrary action
of the Secretary of the Treasury and a board appointed by him, as
excluding from import wholesome, genuine and unadulterated tea, and
as discriminating unequally in the admission of the different kinds
of teas for import, as well as in the right to sell and purchase
that article. The act conferred, it was objected, upon the
Secretary and the board the uncontrolled power of fixing standards
of purity, quality, and fitness for consumption, and thus to
prescribe arbitrarily what teas may be imported and dealt in. The
question of constitutional law so raised was thus disposed of by
the Court:
"The claim that the statute commits to the arbitrary discretion
of the Secretary of the Treasury the determination of what teas may
be imported, and therefore in effect vests that official with
legislative power, is without merit. We are of opinion that the
statute, when properly construed, as said by the circuit court of
appeals, but express the purpose to exclude the lowest grades of
tea, whether demonstrably of inferior purity or unfit for
consumption or presumably so because of their inferior quality.
Page 204 U. S. 385
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. The
case is within the principle of
Field v. Clark,
143 U. S.
649, where it was decided that the third section of the
Tariff Act of October 1, 1890, was not repugnant to the
Constitution as conferring legislative and treatymaking power on
the President because it authorized him to suspend the provisions
of the act relating to the free introduction of sugar, molasses,
coffee, tea, and hides. 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. To deny the power of Congress to delegate such
a duty would in effect amount but to declaring that the plenary
power vested in Congress to regulate foreign commerce could not be
efficaciously exerted."
It would seem too clear to admit of serious doubt that the
statute under which the Secretary of War proceeded is in entire
harmony with the principles announced in former cases. In no
substantial, just sense does it confer upon that officer, as the
head of an executive department, powers strictly legislative or
judicial in their nature, or which must be exclusively exercised by
Congress or by the courts. It has long been the policy of the
government to remove such unreasonable obstructions to the free
navigation of the waterways of the United States as were caused by
bridges maintained over them. That such an object was of common
interest and within the competency of Congress, under its power to
regulate commerce, everyone must admit, for commerce comprehends
navigation, and therefore to free navigation from unreasonable
obstructions is a legitimate exertion of that power.
Gibbons v.
Odgen, 9 Wheat. 1,
22 U. S. 189-190.
As appropriate to the object
Page 204 U. S. 386
to be accomplished, as a means to an end within the power of the
national government, Congress, in execution of a declared policy,
committed to the Secretary of War the duty of ascertaining all the
facts essential in any inquiry whether particular bridges, over the
waterways of the United States, were unreasonable obstructions to
free navigation. Beyond question, if it had so elected, Congress,
in some effective mode and without previous investigation through
executive officers, could have determined for itself, primarily,
the fact whether the bridge here in question was an unreasonable
obstruction to navigation, and, if it was found to be of that
character could, by direct legislation, have required the defendant
to make such alterations of its bridge as were requisite for the
protection of navigation and commerce over the waterway in
question. But investigations by Congress as to each particular
bridge alleged to constitute an unreasonable obstruction to free
navigation, and direct legislation covering each case, separately,
would be impracticable, in view of the vast and varied interests
which require national legislation from time to time. By the
statute in question, Congress declared in effect that navigation
should be freed from unreasonable obstructions arising from bridges
of insufficient height, width of span, or other defects. It
stopped, however, with this declaration of a general rule, and
imposed upon the Secretary of War the duty of ascertaining what
particular cases came within the rule prescribed by Congress, as
well as the duty of enforcing the rule in such cases. In performing
that duty, the Secretary of War will only execute the clearly
expressed will of Congress, and will not in any true sense exert
legislative or judicial power. He could not be said to exercise
strictly legislative or judicial power any more, for instance, than
it could be said that executive officers exercise such power when,
upon investigation, they ascertain whether a particular applicant
for a pension belongs to a class of persons who, under the general
rules prescribed by Congress, are entitled to pensions. If the
principle for which the defendant
Page 204 U. S. 387
contends received our approval, the conclusion could not be
avoided that executive officers, in all the departments, in
carrying out the will of Congress as expressed in statutes enacted
by it, have, from the foundation of the national government,
exercised and are now exercising powers as to mere details that are
strictly legislative or judicial in their nature. This will be
apparent upon an examination of the various statutes that confer
authority upon executive departments in respect of the enforcement
of the laws of the United States. Indeed, it is not too much to say
that a denial to Congress of the right, under the Constitution, to
delegate the power to determine some fact or the State of things
upon which the enforcement of its enactment depends would be "to
stop the wheels of government" and bring about confusion, if not
paralysis, in the conduct of the public business.
To this may be added the consideration that Congress, by the act
of 1899, did not invest the Secretary of War with any power in
these matters that could reasonably be characterized as arbitrary.
He cannot act in reference to any bridge alleged to be an
unreasonable obstruction to free navigation without first giving
the parties an opportunity to be heard. He cannot require any
bridge of that character to be altered, even for the purpose of
rendering navigation through or under it reasonably free, easy, and
unobstructed, without giving previous notice to the persons or
corporations owning or controlling the bridge, specifying the
changes recommended by the Chief of Engineers, and allowing a
reasonable time in which to make them. If, at the end of such time,
the required alterations have not been made, then the Secretary is
required to bring the matter to the attention of the United States
district attorney in order that criminal proceedings may be
instituted to enforce the act of Congress. In the present case, all
the provisions of the statute were complied with. The parties
concerned were duly notified and were fully heard. Nor is there any
reason to say that the Secretary of War was not entirely justified,
if not compelled, by the evidence, in finding
Page 204 U. S. 388
that the bridge in question was an unreasonable obstruction to
commerce and navigation as now conducted.
We are of opinion that the act in question is not
unconstitutional as conferring upon the Secretary of War powers of
such nature that they could not be delegated to him by
Congress.
The next principal contention of the Bridge Company is that the
act of 1899 is unconstitutional in that it makes no provision, and
the United States has not offered, to compensate if for the sum
that will necessarily be expended in order to make the alterations
or changes required by the order of the Secretary of War. In other
words, the defendant insists that what the United States requires
to be done in respect of defendant's bridge a taking of private
property for public use, which the government is forbidden by the
Constitution to do without making just compensation to, or without
making provision to justly compensate, the owner. Stating the
question in another way, the contention is, in effect, that even if
the United States did not expressly assent to the construction of
this bridge as it is, and even if the bridge has become an
unreasonable obstruction to the free navigation of the waterway in
question, the exertion of the power of the United States to
regulate commerce among the states is subject to fundamental
condition that it cannot require the defendant, whose bridge was
lawfully constructed, to make any alterations, however necessary to
secure free navigation without paying or securing to it
compensation for the reasonable cost of such alterations.
The propositions are combated by the government, which contends
that the alterations or changes required to secure navigation
against an unreasonable obstruction is not a taking of private
property for public use within the meaning of the Constitution, and
that the cost of such alterations or changes is to be deemed
incidental only to the exercise of an undoubted function of the
United States, when exerting, through Congress, its power to
regulate commerce among the states,
Page 204 U. S. 389
and therefore navigation upon the waterways on and over which
such commerce is conducted.
It would seem clear that this issue has likewise been determined
by the principles announced in the previous cases of this Court.
Let us see whether such be the fact.
A leading case upon this subject is
Gibson v. United
States, 166 U. S. 269,
166 U. S. 271,
et seq. Congress, by the River and Harbor Acts of 1884 and
1886, 23 Stat. 133, 147, c. 229, authorized and directed the
improvement of the Ohio River, and made appropriations to effect
that object. Under the authority of the Secretary of War, and the
Engineer Corps of the Army, a dike was constructed in that river
for the purpose of concentrating the water flow in the main channel
of the river, near Neville island. The dike began at a certain
point on the island. Its construction substantially destroyed the
landing on and in front of a farm owned by Mrs. Gibson on that
island, preventing during most of the year free egress and ingress
from and to such farm to the main or navigable channel of the
river. At the time of the construction of the dike, that farm was
in high state of cultivation, well improved, with a dwelling house,
barn, and outbuildings. It had a frontage of a thousand feet on the
main navigable channel, and the owner had a landing there which was
used in the shipping of products from and supplies to her farm, and
was the only one from which such products and supplies could be
shipped. Before the construction of the dike the farm, by reason of
the use to which it was put, was worth $600 per acre. The
obstruction caused by the dike reduced its value to $150 or $200
per acre, resulting in damages to the owner in excess of $3,000.
Suit was brought against the United States in the Court of Claims
to recover such damages. That court found, as a conclusion of law,
that the owner was not entitled to recover.
THE CHIEF JUSTICE of this Court, delivering its unanimous
judgment, said:
"All navigable waters are under the control
Page 204 U. S. 390
of the United States for the purpose of regulating and improving
navigation, and although the title to the shore and submerged soil
is in the various states and individual owners under them, it is
always subject to the servitude in respect of navigation created in
favor of the federal government by the Constitution.
South
Carolina v. Georgia, 93 U. S. 4;
Shively v.
Bowlby, 152 U. S. 1;
Eldridge v.
Trezevant, 160 U. S. 452."
After referring to several adjudged cases, the Court
proceeded:
"The Fifth Amendment to the Constitution of the United States
provides that private property shall not 'be taken for public use
without just compensation.' Here, however, the damage of which Mrs.
Gibson complained was not the result of the taking of any part of
her property, whether upland or submerged, or a direct invasion
thereof, but the incidental consequence of the lawful and proper
exercise of a governmental power. The applicable principle is
expounded in
Transportation Co. v. Chicago, 99 U. S.
635. In that case, plaintiff, being an owner of land
situated at the intersection of La Salle Street in Chicago with the
Chicago river, upon which it had valuable dock and warehouse
accommodations, with a numerous line of steamers accustomed to land
at that dock, was interrupted in his use thereof by the building of
a tunnel under the Chicago River by authority of the state
legislature, in accomplishing which work it was necessary to tear
up La Salle street, which precluded plaintiff from access to his
property for a considerable time; also to build a coffer dam in the
Chicago River, which excluded his vessels from access to his docks,
and such an injury was held to be
damnum absque injuria.
The Court said, again speaking through Mr. Justice Strong:"
"But acts done in the proper exercise of governmental powers,
and not directly encroaching upon private property, though their
consequences may impair its use, are universally held not to be a
taking within the meaning of the constitutional provision. They do
not entitle the owner of such property to compensation from the
state or its agents, or give him any
Page 204 U. S. 391
right of action. This is supported by an immense weight of
authority."
". . . Moreover, riparian ownership is subject to the obligation
to suffer the consequences of the improvement of navigation in the
exercise of the dominant right of the government in that regard.
The legislative authority for these works consisted simply in an
appropriation for their construction, but this was an assertion of
a right belonging to the government, to which riparian property was
subject, and not of a right to appropriate private property, not
burdened with such servitude, to public purposes. In short, the
damage resulting from the prosecution of this improvement of a
navigable highway for the public good was not the result of a
taking of appellant's property, and was merely incidental to the
exercise of a servitude to which her property had always been
subject."
The
Gibson case was referred to with approval in
Scranton v. Wheeler, 179 U. S. 141,
179 U. S. 153,
179 U. S. 162.
The latter case involved the question whether the owner of land on
the St. Mary's River, in Michigan, was entitled, under the
Constitution of the United States, to be compensated for the injury
or damage done him, as a riparian owner, by certain work done in
that river under the authority of the United States. The
controlling question was whether the prohibition in the
Constitution of the United States of the taking of private property
for public use without just compensation has any application to the
case of an owner of land bordering on a public navigable river
whose access from his land to navigability is permanently lost by
reason of the construction of a pier resting on submerged lands in
front of his upland, and which pier was erected by the United
States for the purpose only of improving the navigation of such
river. After observing that, when that which is done amounts,
within the meaning of the Constitution, to a taking of private
property for public use, and that Congress may not, in the exercise
of its power to regulate commerce, override the provision for just
compensation when private property is so taken, the court
entered
Page 204 U. S. 392
upon a review of some of the adjudged cases. Among other things,
it said:
"All the cases concur in holding that the power of Congress to
regulate commerce, and therefore navigation, is paramount, and is
unrestricted except by the limitations upon its authority by the
Constitution. Of course, every part of the Constitution is as
binding upon Congress as upon the people. The guaranties prescribed
by it for the security of private property must be respected by
all. But whether navigation upon waters over which Congress may
exert its authority requires improvement at all, or improvement in
a particular way, are matters wholly within its discretion, and the
judiciary is without power to control or defeat the will of
Congress, so long as that branch of the government does not
transcend the limits established by the supreme law of the land. Is
the broad power with which Congress is invested burdened with the
condition that a riparian owner whose land borders upon a navigable
water of the United States shall be compensated for his right of
access to navigability whenever such right ceases to be of value
solely in consequence of the improvement of navigation by means of
piers resting upon submerged lands away from the shore line? We
think not."
"The primary use," the Court said,
"of the waters and the lands under them is for purposes of
navigation, and the erection of piers in them to improve navigation
for the public is entirely consistent with such use, and infringes
no right of the riparian owner. Whatever the nature of the interest
of a riparian owner in the submerged lands in front of his upland
bordering on a public navigable water, his title is not as full and
complete as his title to fast land which has no direct connection
with the navigation of such water. It is a qualified title, a bare
technical title, not at his absolute disposal, as is his upland,
but to be held at all times subordinate to such use of the
submerged lands and of the waters flowing over them as may be
consistent with or demanded by the public right of navigation. In
Lorman v. Benson, 8 Mich. 18, 22, the Supreme Court of
Michigan, speaking
Page 204 U. S. 393
by Justice Campbell, declared the right of navigation to be one
to which all others were subservient. . . . But the contention is
that compensation must be made for the loss of the plaintiff's
access from his upland to navigability incidentally resulting from
the occupancy of the submerged lands, even if the construction and
maintenance of a pier resting upon them be necessary or valuable in
the proper improvement of navigation. We cannot assent to this
view. If the riparian owner cannot enjoy access to navigability
because of the improvement of navigation by the construction away
from the shore line of works in a public navigable river or water,
and if such right of access ceases alone for that reason to be of
value, there is not, within the meaning of the Constitution, a
taking of private property for public use, but only a consequential
injury to a right which must be enjoyed, as was said in
Yates v.
Milwaukee, 10 Wall. 497,
77 U. S.
504-505, 'in due subjection to the rights of the public'
-- an injury resulting incidentally from the exercise of a
governmental power for the benefit of the general public, and from
which no duty arises to make or secure compensation to the riparian
owner. The riparian owner acquired the right of access to
navigability subject to the contingency that such right might
become valueless in consequence of the erection under competent
authority of structures on the submerged lands in front of his
property for the purpose of improving navigation. When erecting the
pier in question, the government had no object in view except, in
the interest of the public, to improve navigation. It was not
designed arbitrarily or capriciously to destroy rights belonging to
any riparian owner. What was done was manifestly necessary to meet
the demands of international and interstate commerce."
The Court further said:
"In our opinion, it was not intended that the paramount
authority of Congress to improve the navigation of the public
navigable waters of the United States should be crippled by
compelling the government to make compensation for the injury to a
riparian owner's right of access to navigability that might
incidentally result from
Page 204 U. S. 394
an improvement ordered by Congress. The subject with which
Congress dealt was navigation. That which was sought to be
accomplished was simply to improve navigation on the waters in
question so as to meet the wants of the vast commerce passing and
to pass over them. Consequently, the agents designated to perform
the work ordered or authorized by Congress had the right to proceed
in all proper ways without taking into account the injury that
might possibly or indirectly result from such work to the right of
access by riparian owners to navigability. . . . We are of opinion
that the court below correctly held that the plaintiff had no such
right of property in the submerged lands on which the pier in
question rests as entitles him, under the Constitution, to be
compensated for any loss of access from his upland to navigability
resulting from the erection and maintenance of such pier by the
United States in order to improve, and which manifestly did
improve, the navigation of a public navigable water."
In
New Orleans Gas Light Co. v. Drainage Commission,
197 U. S. 453,
197 U. S.
461-462, it appeared that, under contract with the City
of New Orleans and at its own expense, the gaslight company had
lawfully laid its pipes at certain places in the public ways and
streets of that city. Subsequently, the drainage commission of New
Orleans adopted a plan for the drainage of the city which made it
necessary to change the location in some places of the mains and
pipes theretofore laid by the gaslight company. That company
contended that to require such changes was a taking of its property
for public use, for which it was entitled, under the Constitution,
to compensation. That view was rejected by this Court. We said:
"The gas company did not acquire any specific location in the
streets; it was content with the general right to use them, and
when it located its pipes it was at the risk that they might be at
some future time, disturbed, when the state might require, for a
necessary public use, that changes in location be made. . . . The
need of occupation of the
Page 204 U. S. 395
soil beneath the streets in cities is constantly increasing, for
the supply of water and light and the construction of systems of
sewerage and drainage, and every reason of public policy requires
that grants of rights in such subsurface shall be held subject to
such reasonable regulation as the public health and safety may
require. There is nothing in the grant to the gas company, even if
it could legally be done, undertaking to limit the right of the
state to establish a system of drainage in the streets. We think
whatever right the gas company acquired was subject, insofar as the
location of its pipes was concerned, to such future regulations as
might be required in the interest of the public health and welfare.
These views are amply sustained by the authorities.
National
Water Works Co. v. Kansas City, 28 F. 921, in which the
opinion was delivered by MR. JUSTICE BREWER, then circuit judge;
Columbus Gaslight & Coke Co. v. Columbus, 50 Ohio St.
65;
Jamaica Pond Aqueduct Co. v. Brookline, 121 Mass. 5;
In re Deering, 93 N.Y. 361;
Chicago, Burlington
&c. R. Co. v. Chicago, 166 U. S. 226,
166 U. S.
254. In the latter case, it was held that uncompensated
obedience to a regulation enacted for the public safety under the
police power of the state was not taking property without due
compensation. In our view, that is all there is to this case. The
gas company, by its grant from the city, acquired no exclusive
right to the location of its pipes in the streets, as chosen by it,
under a general grant of authority to use the streets. The city
made no contract that the gas company should not be disturbed in
the location chosen. In the exercise of the police power of the
state for a purpose highly necessary in the promotion of the public
health, it has become necessary to change the location of the pipes
of the gas company so as to accommodate them to the new public
work. In complying with this requirement at its own expense, none
of the property of the gas company has been taken, and the injury
sustained is
damnum absque injuria."
In
C., B. & Q. R. Co. v. Illinois, 200 U.
S. 561,
Page 204 U. S. 396
200 U. S. 582,
200 U. S.
593-595, the above cases were cited with approval and
the principles announced in them were applied against a railway
company owning a bridge that had been lawfully constructed by it
over a nonnavigable creek running through certain swamp or slough
lands which the drainage commissioners were required by statute to
drain in order to make them tillable and fit for cultivation. The
commissioners, in executing the work of draining, found it
necessary that the creek over which the railway bridge was
constructed should be deepened and enlarged, and a greater opening
made under the bridge for the passage of the increased amount of
water caused by the deepening and enlarging of the bed of the
creek. The railway company was required, at its own cost, to
construct such a bridge over the creek as would meet the
necessities of the situation as it was or would be under the
drainage plan of the commissioners. The company refused to obey the
order. The contention of the railway company was that, as the
bridge was lawfully constructed under its general corporate powers,
and as the depth and width of the channel under it was sufficient
at the time, to carry off the water of the creek as it then and
subsequently flowed, the foundation of the bridge could not be
removed and its use of the bridge disturbed unless compensation be
first made or secured to the company in such amount as would be
sufficient to meet the expense of removing the timbers and stones
from the creek and of constructing a new bridge of such length and
with such opening under it as the plan of the commissioners would
make necessary. The company insisted that to require it to meet
these expenses out of its own funds would be, within the meaning of
the Constitution, a taking of its property for public use without
compensation, and therefore without due process of law. The Court,
after a review of authorities, said:
"The constitutional requirement of due process of law, which
embraces compensation for private property taken for public use,
applies in every case of the exertion of governmental power. If, in
the execution of any power, no matter what it is, the
government,
Page 204 U. S. 397
federal or state, finds it necessary to take private property
for public use, it must obey the constitutional injunction to make
or secure just compensation to the owner.
Cherokee Nation v.
Southern Kansas Railway, 135 U. S. 641,
135 U. S.
659;
Sweet v. Rechel, 159 U. S.
380,
159 U. S. 399,
159 U. S.
402;
Monongahela Nav. Co. v. United States,
148 U. S.
312,
148 U. S. 336;
United
States v. Lynah, 188 U. S. 445. If the means
employed have no real substantial relation to public objects which
government may legally accomplish -- if they are arbitrary and
unreasonable beyond the necessities of the case -- the judiciary
will disregard mere forms, and interfere for the protection of
rights injuriously affected by such illegal action. The authority
of the courts to interfere in such cases is beyond all doubt.
Minnesota v. Barber, 136 U. S. 313,
136 U. S.
320. Upon the general subject there is no real conflict
among the adjudged cases. Whatever conflict there is arises upon
the question whether there has been or will be, in the particular
case, within the true meaning of the Constitution, a 'taking' of
private property for public use. If the injury complained of is
only incidental to the legitimate exercise of governmental powers
for the public good, then there is no
taking of property
for the public use, and a right to compensation, on account of such
injury, does not attach under the Constitution. Such is the present
case."
The opinion concluded:
"Without further discussion we hold it to be the duty of the
railway company at its own expense, to remove from the creek the
present bridge, culvert, timbers, and stones placed there by it,
and also (unless it abandons or surrenders its right to cross the
creek at or in the vicinity of the present crossing) to erect at
its own expense, and maintain, a new bridge for crossing that will
conform to the regulations established by the drainage
commissioners, under the authority of the state, and such a
requirement, if enforced, will not amount to a taking of private
property for public use within the meaning of the Constitution, nor
to a denial of the equal protection of the laws."
The latest adjudication by this Court was in
West
Chicago
Page 204 U. S. 398
Street Railroad v. Chicago, 201 U.
S. 506,
201 U. S. 524.
In that case, the principal question related to the duty of a
street railroad company, which had lawfully constructed a tunnel
under the Chicago River, to obey an ordinance of the city,
requiring the company, at its own cost and expense, to lower its
tunnel so as to provide for a certain depth under it which had been
ascertained by competent federal and local authority to be
necessary for the increased demands of navigation. This Court held,
upon the adjudged cases, that the rights of the company, as the
owner of the fee of the land on either side of the river or in its
bed, were subject to the paramount right of navigation over the
waters of the river. It said:
"If, then, the right of the railroad company to have and
maintain a tunnel under the Chicago River is subject to the
paramount public right of navigation; if its right to maintain a
tunnel in the river is a qualified one, because subject to the
specific condition in the act of 1874 that no tunnel should
interrupt navigation; if the present tunnel is an obstruction to
navigation, as upon this record we must take it to be, and if the
city, as representing the state and public, may rightfully insist
that such obstruction shall not longer remain in the way of free
navigation -- it necessarily follows that the railway company is
under a duty to comply with the demand made upon it to remove at
its own expense, the obstruction which itself has created and
maintains. If the obstruction cannot be removed except by lowering
the tunnel to the required depth and (if a tunnel is to be
maintained) providing one that will not interrupt navigation, then
the cost attendant upon such work must be met by the company. The
city asks nothing more than that the railroad company shall do what
is necessary to free navigation from an obstruction for which it is
responsible, and (if it intends not to abandon its right to
maintain a tunnel at or near Van Buren street) that it shall itself
provide a new tunnel with the necessary depth of water above
it."
Again:
"In the case before us, the public demands nothing to be done by
the railroad company except to remove the obstruction which it
itself placed and
Page 204 U. S. 399
maintains in the river under the condition that navigation
should not at any time be thereby interrupted. The removal of such
obstruction is all that is needed to protect navigation. So that
whatever cost attends the removal of the obstruction must be borne
by the railroad company. The condition under which the company
placed its tunnel in the river being met by the company, the public
has no further demands upon it. This cannot be deemed a taking of
private property for public use, or a denial of the equal
protection of laws within the meaning of the Constitution, but is
only the result of the lawful exercise of a governmental power for
the common good. This appears from the authorities cited in
Chicago, Burlington & Quincy R. Co. v. Drainage
Commissioners, supra, just decided. The state court has well
said that to maintain the navigable character of the stream in a
lawful way is not, within the meaning of the law, the taking of
private property or any property right of the owner of the soil
under the river, such ownership being subject to the right of free
and unobstructed navigation.
People v. West Chicago Street R.
Co., 203 Ill. 551, 557. What the city asks, and all that it
asks, is that the railroad company be required, in the exercise of
its rights and in the use of its property, to respect the public
needs as declared by competent authority, upon reasonable grounds,
to exist. This is not an arbitrary or unreasonable demand. It does
not in any legal sense take or appropriate the company's property
for the public benefit, but only insists that the company shall not
use its property so as to interrupt navigation."
Do the principles announced in the above cases require us to
hold in the present case that the making of the alterations of its
bridge specified in the order of the Secretary of War will be a
taking of the property of the Bridge Company for public use? We
think not. Unless there be a taking, within the meaning of the
Constitution, no obligation arises upon the United States to make
compensation for the cost to be incurred in making such
alterations. The damage that will accrue to the Bridge Company as
the result of compliance
Page 204 U. S. 400
with the Secretary's order must in such case be deemed
incidental to the exercise by the government of its power to
regulate commerce among the states, which includes, as we have
seen, the power to secure free navigation upon the waterways of the
United States against unreasonable obstructions. There are no
circumstances connected with the original construction of the
bridge, or with its maintenance since, which so tie the hands of
the government that it cannot exert its full power to protect the
freedom of navigation against obstructions. Although the bridge,
when erected under the authority of a Pennsylvania charter, may
have been a lawful structure, and although it may not have been an
unreasonable obstruction to commerce and navigation as then carried
on, it must be taken, under the cases cited, and upon principle,
not only that the company, when exerting the power conferred upon
it by the state, did so with knowledge of the paramount authority
of Congress to regulate commerce among the states, but that it
erected the bridge subject to the possibility that Congress might
at some future time, when the public interest demanded, exert its
power by appropriate legislation to protect navigation against
unreasonable obstructions. Even if the bridge, in its original
form, was an unreasonable obstruction to navigation, the mere
failure of the United States at the time to intervene by its
officers or by legislation and prevent its erection could not
create an obligation on the part of the government to make
compensation to the company if at a subsequent time, and for public
reasons, Congress should forbid the maintenance of bridges that had
become unreasonable obstructions to navigation. It is for Congress
to determine when it will exert its power to regulate interstate
commerce. Its mere silence or inaction when individuals or
corporations, under the authority of a state, place unreasonable
obstructions in the waterways of the United States cannot have the
effect to cast upon the government an obligation not to exert its
constitutional power to regulate interstate commerce except subject
to the condition that compensation be
Page 204 U. S. 401
made or secured to the individuals or corporation who may be
incidentally affected by the exercise of such power. The principle
for which the Bridge Company contends would seriously impair the
exercise of the beneficent power of the government to secure the
free and unobstructed navigation of the waterways of the United
States. We cannot give our assent to that principle. In conformity
with the adjudged cases, and in order that the constitutional power
of Congress may have full operation, we must adjudge that Congress
has power to protect navigation on all waterways of the United
States against unreasonable obstructions, even those created under
the sanction of a state, and that an order to so alter a bridge
over a waterway of the United States that it will cease to be an
unreasonable obstruction to navigation will not amount to a taking
of private property for public use for which compensation need be
made.
Independent of the grounds upon which we thus place our
decision, it is appropriate to observe that the conclusion reached
finds support in the charter of the Bridge Company and in the law
of Pennsylvania, as declared by its highest court. The charter of
the company, as we have seen, expressly warned the company that its
bridge must not obstruct navigation -- that is, in legal effect,
navigation as it then was or might be at any subsequent time. In
Dugan v. Bridge Company, 27 Pa. 303, 309, 311, we have the
case of a bridge company on which was conferred the franchise to
erect and maintain a toll bridge across Monongahela River, coupled,
however, with the condition that such bridge should not be erected
"in such manner as to injure, stop, or interrupt the navigation of
such river by boats, rafts, or other vessels." The Supreme Court of
Pennsylvania interpreted these words as meaning that "the bridge
was to be so built as not to injure, stop, or interrupt the
navigation, either then or now, whether, in its infancy or full
growth." The same general question arose in
C., B. & Q.
Railway Co. v. Drainage Commissioners, above cited. This Court
held that the adjudged cases
"negative the
Page 204 U. S. 402
suggestion of the railway company that the adequacy of its
bridge and the opening under it for passing the water of the creek
at the time the bridge was constructed determine its obligations to
the public at all subsequent periods. In
Cooke v. Boston &
Lowell R. Corp., 133 Mass. 185, 188, it appeared that a
railroad company had statutory authority to cross a certain highway
with its road. The statute provided that if the railroad crossed
any highway, it should be so constructed as not to impede or
obstruct the safe and convenient use of the highway. And one of the
contentions of the company was that the statute limited its duty
and obligation to provide for the wants of travelers at the time it
exercised the privilege granted to it. The court said:"
"The legislature intended to provide against any obstruction of
the safe and convenient use of the highway for all time, and if, by
the increase of population in the neighborhood, or by an increasing
use of the highway, the crossing, which at the outset, was
adequate, is no longer so, it is the duty of the railroad
corporation to make such alteration as will meet the present needs
of the public who have occasion to use the highway."
"In
Lake Erie & Western R. Co. v. Cluggish, 143
Ind. 347, the court said (quoting from
Lake Erie & Western
R. Co. v. Smith, 61 F. 885):"
"The duty of a railroad to restore a stream or highway way which
is crossed by the line of its road is a continuing duty, and if, by
the increase of population or other causes, the crossing becomes
inadequate to meet the new and altered conditions of the country,
it is the duty of the railroad to make such alterations as will
meet the present needs of the public."
"So, in
Indiana ex Rel. Muncie v. Lake Erie & Western R.
Co., 83 F. 284, 287, which was the case of an overhead
crossing lawfully constructed on one of the streets of a city, the
court said:"
"If, by the growth of population or otherwise, the crossing has
become inadequate to meet the present needs of the public, it is
the duty of the railroad company to remedy the defect by restoring
the crossing so that it will not unnecessarily impair the
usefulness of the highway. "
Page 204 U. S. 403
Some stress was laid in argument upon the fact that compliance
with the order of the Secretary of War will compel the Bridge
Company to make a very large expenditure in money. But that
consideration cannot affect the decision of the questions of
constitutional law involved. It is one to be addressed to the
legislative branch of the government. It is for Congress to
determine whether, under the circumstances of a particular case,
justice requires that compensation be made to a person or
corporation incidentally suffering from the exercise by the
national government of its constitutional powers.
These are all the matters which require notice at our hands;
and, perceiving no error of law on the record, the judgment must
be
Affirmed.
It is so ordered.
MR. JUSTICE Brewer and MR. JUSTICE Peckham dissent.
MR. JUSTICE Moody did not participate in the consideration or
decision of the case.
* Act of June 13, 1798, c. 53, 1 Stat. 565, 566; of February 9,
1799, c. 2, 1 Stat. 613; of April 18, 1806, c. 29, 2 Stat. 379; of
December 19, 1806, c. 1, 2 Stat. 411; of March 3, 1815, c. 77, 3
Stat. 224; of March 3, 1817, c. 39, 3 Stat. 361; of January 7,
1824, c. 4, 4 Stat. 3; of May 24, 1828, c. 111, 4 Stat. 308; of Act
of May 31, 1830, c. 219, 4 Stat. 425; of August 5, 1854, c. 269, 10
Stat. 587; 11 Stat. 790; of March 6, 1866, c. 12, 14 Stat. 3, 26
Stat. 616, c. 1244; of Act June 26, 1884, c. 121, 23 Stat. 57.
