1911 U.S. LEXIS 1727
U.S.
1911
Mr. Justice Harlan

delivered the opinion of the court.

This is a criminal Information against the Hannibal Bridge Company, the Wabash Railroad Company, and the Missouri Pacific Railway Company, under the eighteenth section of the River and Harbor Appropriation Act of Congress of March 3, 1899, c. 425, 30 Stat. 1121.

That section is as follows: "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 to so 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 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 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.”

.. Proceeding under the above statute, certain vessel owners, masters, pilots and others interested in the navigation of the Mississippi River, represented to the Secre tary of War, by petition, that the bridge over that river at Hannibal, Missouri, had become and was an unreasonable obstruction to free navigation by reason of the location of the then existing draw-openings, the entire absence of guard-fences or sheer-booms, and the presence of artificial deposits of stone about-the piers of the bridge, which they believed had increased the current through the draw-openings to a dangerous extent. The Secretary was asked by the petitioners to exercise the powers granted to him by the above act, and after due hearing of all interested persons or corporations, require such alterations to be made in and about the bridge as would render navigation through it reasonably free, easy and unobstructed.

The matter was referred by the War Department to an officer of the Engineer Corps of the Army, for report. That officer, after examination, reported that from personal observation and experience, especially during the great flood of June, 1903, he was satisfied that the bridge was an unreasonable obstruction to navigation, by reason of the wrong location of the draw-spans, the absence of guard-fences or sheer-booms, and the deposit of rip-rap in considerable quantities about' the piers and abutments. The report recommended certain changes-in order that navigation through the bridge -might be reasonably safe, easy and unobstructed. In these recommendations the Chief of Engineers concurred. “The. character of this bridge as an unreasonable obstruction to navigation is,” the report stated, “so generally understood,'and has been so well established by former hearings, that further hearings would appear to be superfluous; but, as the alteration of the structure so as to make it reasonably safe for navigation will be expensive, and on that account will probably be antagonized by its owners, I. believe it would be best to hold another hearing, at which all parties in interest may be heard; the said new hearing to take place as soon as practicable.” .

Subsequently, under date of March 10, 1906, there was 'issued by the War Department an official, communication to the Bridge Company, as follows: “Take notice that, Whereas, The' Secretary of War has good reason to believe that the drawbridge, commonly known as the Wabash Railway Bridge, owned or.operated by the Hannibal Bridge Company (and by the Wabash Railroad Com-pan jO, inter alia, across the Mississippi River at Hannibal, Missouri, is an unreasonable obstruction to the free navigation of the said Mississippi River (which is one of the navigable waterways of the United States) on account of unsuitable location of the draw-spans and protection crib, the lack of suitable guard-fences or sheer-booms, and the presence of obstructing rip-rap around the piers, there being difficulty in passing the draw-openings or draw-spans of such bridge by rafts, steamboat or other water craft; and whereas, the following alterations, which have been recommended by the Chief of Engineers, are required to render navigation through it reasonably free, easy, and unobstructed, to wit: (Here follows specifications of proposed alterations) . . ■. And whereas, to March 15, 1907, is a reasonable time in which to alter the said bridge as described above. Now, therefore, in obedience to, and by virtue 4)f, section eighteen of an act of 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 (30 Stat., c. 425, 1153), the Secretary of War hereby notifies the said Hannibal Bridge. Company to alter the said bridge as described above, and prescribes that said alterations shall be made and completed on or before March 15, 1907.”

Similar notices were given to the Wabash Railroad.Company and the Missouri Pacific Railroad Company, respectively, each notice being signed by “Robert Shaw Oliver, Asst. Secretary of War/’

Such a hearing as that notice required was had at Rock Island, Illinois, before an Engineer officer designated by the War Department, the parties interested having been previously notified of the time, place and object of the hearing. It appears also that notice of the hearing was given through newspapers, published at St. Paul, St. Louis and Hannibal. Among those present at the hearing were numerous river men, masters and pilots. The Bridge Company was also present by counsel and participated in the investigation. After the hearing was concluded the Engineer officer who presided made a report to the Chief of Engineers, in which he said: ‘ ‘ The law and the orders of the, Department have been fully complied with; every opportunity has been given the representatives of this bridge to present their full views; the bridge to-day is an illegal structure; it is an unreasonable obstruction to the present navigation of the Mississippi River; there is great difficulty in passing its draw openings at high stages; the continuance of existing conditions is liable at any moment to lead to an appalling disaster and great loss of life; previous recommendations as to alterations necessary in this bridge to render navigation through it reasonably free, easy and unobstructed are concurred in.”'

He further said that "the bridge is an unreasonable obstruction, and that there is difficulty in passing its draw, seems overwhelmingly shown by the statements and affidavits of those competent to give opinions on such a subject. The river pilots are almost unanimous in théir views regarding this bridge.” ■

■ It should be here stated that, so far as the record shows, no objection was made by the Bridge Company as to thé manner in winch the hearing was conducted.

Subsequently, under date of. March 10, 1906, in an official notice to the Bridge Company, signed by "Robert Shaw Oliver, Asst. Secretary of War,” the Secretary of War (Mr. Taft) expressed his approval of the recominenda tions of the Chief of Engineers, and directed the Bridge Company, on or before March 15, 1907, to make the alterations suggested by that officer. Later on, the Bridge Company requested a hearing'before the Secretary of War himself. The Secretary assented to another hearing being had, but said that it must be held before the Judge Advocate General of the Army. After seasonable notice to the parties interested in the navigation of the river, the latter officer heard the case anew and reported to the Secretary of War that the case was covered by the act of March 3, 1899, c. 425, 30 Stat. 1121, and that the action .¿heretofore taken by the War Department should be adhered to. The Secretary of War formally approved the report of the" Judge Advocate General, and directed the Chief of Engineers to “act accordingly.”

The Bridge Company failed or' refused to make the. required alterations of the bridge. Then • followed the Information in question, the Wabash Railroad Company and the Missouri Pacific. Railway Company being made co-defendants with the Bridge Company on the ground that they owned or ^controlled the bridge.

There werg^two counts in the Information: the first /? 7 count, charging the defendants-with having willfully failed and refused to make the above alterations in the bridge, within the time prescribed by the Secretary of War, and to comply with the order of that officer; the second count charging the willful failure and refusal of the defendants to make such alterations within one month after the time allowed by the Department.

A demurrer to the Information was overruled, and plea of not guilty entered. The jury found the Bridge Company and the Wabash Railroad Company each; guilty, but by direction of the court it returned a verdict of not guilty as to the Missouri Pacific Railway Company. Judgment was rendered in favor of the United States against the Bridge Company for $2,500 on each count of the Infor mation. A like judgment was rendered against the Wabash Railroad Company.

The assignments of error are very numerous. But we feel constrained to say that no one of them causes a serious doubt as to the correctness of the judgment sought to be reviewed. This court has heretofore held, upon full consideration, that Congress had full authority, under the Constitution, to enact § 18 of the act of March 3, 1899, c. 425, 30 Stat. 1153, and that the delegation to the Secretary of War of the authority specified in that section was not a departure from the established constitutional rule that forbids the delegation of strictly legislative or judicial powers to an executive officer of the Government. All that the act did was to impose upon the Secretary the duty of attending to such details as were necessary in order to carry out the- declared policy of the Government as to the free and unobstructed navigation of those waters of the.United States over which Congress in virtue of its power to regulate commerce had paramount control. It is also firmly settled that such alterations of bridges over the navigable waters of the United States as the Chief of Engineers recommended, and as the Secretary of War required to be made after notice and hearing the parties interested, was not a-taking of the property of the owners of such bridges within the meaning of the Constitution. Union Bridge Company v. United States, 204 U. S. 364; Monongahela Bridge Co. v. United States, 216 U. S. 177; Field v. Clark, 143 U. S. 649; Buttfield v. Stranahan, 192 U. S. 470.

What the Secretary did in relation to the bridge here in question seems to have been in substantial, if not in exact accordance with the statute. He was officially informed, through, the Engineer Corps, that the complaints that came to him from many sources as to the Hannibal bridge, were sufficient to ‘require such action on his. part as . the statute authorized. He ordered a hearing, first causing notice to be given to the parties interested of the time and place of the hearing. We cannot doubt from the record that the hearing was adequate and was fairly conducted. The result of the hearing was a recommendation, concurred in, by the Chief of Engineers, that certain alterations of the bridge were demanded by the public interests., There was a second hearing, with a like result. Then the Secretary acted and directed the making of such alterations in the bridge as had been found to be necessary. Of the character and extent of those alterations the Bridge Company was notified by an official communication from the War Department. It is true that that communication was, signed by the Assistant Secretary, of War, and not by the Secretary himself. And that fact is relied upon to invalidate the entire proceeding. There is no merit in this obj ection. The communication signed by the Assistant Secretary shows, upon its face, that it was from the War Department and from the Secretary of War, and that the Secretary, without abrogating his authority under thei statute, only used the hand of the Assistant Secretary in order to give the owners of the bridge notice of what was required of them under the statute. It is physically impossible for the head of an executive department to sign, himself, every official communication that emanates from his Department.

Equally without merit is the objection that the nature and character of the required alterations were not sufficiently indicated. This is a mistake. The communication from the War Department was full and adequate. The owners of the bridge could have, had no reasonable doubt as to what was expected and required of them.

The defendants also insist that their bridge was. constructed under the authority of a special act of Congress of July 25, 1866 (14 Stat. 244, c. 246), and that its maintenance, as constructed, is not affected by a subsequent general appropriation act, like the one of which the above § 18 forms a part. This view cannpt.be sustained.' i The- act of July 25,1866, 14 Stat. 244, c. 246, expressly reserves the right to alter or amend it so as to prevent or remove all material obstructions to the navigation of said river by the construction of bridges. In the Union Bridge Case, above cited, it appeared that the bridge was required by the Secretary of War to.be altered, at the expense of the owners. The point was made that the bridge having been originally erected under the authority of the State of Pennsylvania and without objection from the General Government, the power of the Secretary and of Congress did not go so far as the Government claimed. But this court said, 204 U. S., p. 400: "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 obstructións. 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 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 béneficíent power of the Government to secure the free and unobstructed navigation of the waterways of the United States.”

We have said enough to dispose of every essential question made in the case or which requires notice.^

Judgment affirmed..