45 F. 178 | S.D. Iowa | 1891
In the act of congress of August 11, 1888, (25 St. at Large, p. 424,) it is provided:
“Sec. 9. That whenever the secretary of war shall have good reason to believe that any railroad or other bridge now constructed, or which may be hereafter constructed, over any of the navigable water-ways of the United States is an obstruction to the free navigation of such waters by reason of insufficient height, width of span, or otherwise, or where there is difficulty in passing the draw-opening or the raft-span of such bridge by rafts, steamboats, or other water-craft, it shall be the duty of said secretary to give notice to the persons ór corporations owning or controlling said bridge to so alter the same as to render navigation through or under it fr.ee, easy, and unobstructed; and in giving such notice he shall prescribe in each case reasona*179 ble time in which such alteration is to bo made. * * * See. JO. That the owner or manager or managers of any railroad or other bridge obstructing the free navigation of any navigable water-way of the United States, who shall willfully fail or refuse to remove the samo, or to cause the necessary alterations to be mad'e in the same, so as to render navigation through or under it free, easy, and unobstructed to rafts, steam-boats, or other water-craft, after receiving notice to that effect from the secretary of war, and within the time prescribed by him, shall be subject to a fine, as penalty therefor, of five hundred dollars per month for the time he or they are in default.”
In the petition filed in this cause it is alleged that the defendant corporation is the owner of a railroad and wagon bridge across the Mississippi river at Keokuk, Iowa. That on or about the 31st day of December, 1888, the secretary of war, then having good reason to believe that said bridge was an obstruction to the freo navigation of the river by reason of its location, which at stages of water permitting navigation over the Des Moines rapids rendered the passage of boats, rafts, etc., through its west draw rest pier difficult, gave due and legal notice to the said defendant to so alter said bridge as to render navigation through or under it free and unobstructed; said notice, so given defendant, being in the following form:
“War Department.
“Washington City, December 19, 1888.
“To the Keokuk & Hamilton Bridge Company: Take notice that, whereas, the secretary of war lias good reason to believe that the bridge across the Mississippi river at Keokuk is an obstruction to the free navigation of the said Mississippi river (which is one of the navigable waters of the UnitedoStates) by reason of its location, which at stages of water permitting navigation over the Des Moines Ilapids renders the passage of boats, rafts, etc., through its west draw rest pier difficult; and, whereas, to the 31st day of March, 1889, is a reasonable time in which to so alter the said bridge as to render navigation through or under it free, easy, and unobstructed: Kow, therefore, in obedience to and by virtue of the ninth and tenth sections of an act of the congress of the United States entitled ‘An act making appropriation for the construction, repair, and preservation of certain public works on rivers and harbors, and for other purposes,’ which took effect August 11, 1888, I, Win. O. Endieott, secretary of war, do hereby notify the said Keokuk & Hamilton Bridge Company to so alter the said bridge as to render navigation through or under it free, easy, and unobstructed, and prescribe that such alteration shall be made and completed on or before the 31st day of March, 1889.
“ Wm. C. Endicott, Secretary of War. ”
—That the defendant failed and refused to cause the necessary alterations in said bridge to be made, so as to render navigation under it free and unobstructed for rafts, steam-boats, and other water-craft, which failure had continued for two months after the date fixed in the notice for the completion of said alteration, and in consequence thereof the defendant had become indebted in a penalty of $500 for each of said months, judgment being prayed in the sum of §1,000.
To this petition a demurrer is interposed on several grounds, the first being that the sections of the act of congress above cited are unconstitutional and void for the reason that, the powers attempted to be thereby delegated to the secretary of war are exclusively lodged by the constitu
On part of defendant it is admitted that congress possesses this controlling authority, and could exercise it over the bridge owned by defendant; but it is contended that congress alone can exercise the power, and must do so as a legislative body, and that it cannot delegate this power to any other body or agency. The argument is that the bridge in question was originally built under the authority conferred by the act of congress of July 25, 1866, and that as built it conformed to the requirements then prescribed by congress, and was therefore a legal structure; that admitting that for any cause since arising the bridge may' now be a greater obstruction to navigation than it formerly was, still it is for congress to determine whether the obstruction caused by it is sufficiently great as to require a change in the bridge, and, if so, to determine the nature and extent of such change. If it be true that the bridge in question when erected met all the requirements of the act of congress under the authority of which it was built, so that it was then a legal structure, it is difficult to evade the conclusion that it would require an act of congress fo so change its stains as to render the bridge company liable to punishment for maintaining it as it was originally constructed. Railroad and wagon bridges across the rivers of the country are agencies for the carrying on the public travel and commerce, the same as are navigable rivers; and it is therefore held that there must be in all cases a reasonable compromise between the two modes of travel, and that each may be required to submit to some obstruction and inconveniences, or, in an extreme case, when the interests of the public demand it, the one mode of commercial intercourse maybe authorized, to the exclusion of the other. Transportation Co. v. City of Chicago, 107 U. S. 678, 2 Sup. Ct. Rep. 185; Gilman v. Philadelphia, 3 Wall. 713; Miller v. Mayor, etc., 109 U. S. 385, 3 Sup. Ct. Rep. 228. If, therefore, in a given case, congress authorizes the construction of a railway bridge across a navigable river, and prescribes the location and mode of its construction, and the bridge is built in conformity therewith, it is certainly then a legal structure, and the obstruction caused by it to the navigation of the river must be deemed to be a burden lawfully imposed upon the free navigation of the river, of which no one can legally complain. If upon the completion of the bridge it becomes apparent that the same, owing to its location or mode of construction, or through some change in the channel of the river, is in reality an unreasonable obstruction to the navigation of the river, congress can require it to be remodeled, or to be entirely removed, if that be the only remedy. Until congress, however, requires it to be remodeled or removed, it certainly cannot be claimed that the bridge com
The bridge-owner cannot be made liable to a fine or for damages simply because the bridge may be in fact an obstruction to the navigation of the river, but only in case the obstruction is illegal; and that cannot be predicated of a bridge built under the authority of, and in accordance with the requirements of, an act of congress. Therefore, in the present case, if it be true that the bridge owned by the defendant company was built under the provisions of the act of congress of July 25, 1866, and when completed met the requirements of that act, so that it was then a legal structure, and it has not since been changed or become out of repair, but still continues to fulfill the requirements of the act under which it was constructed, then it must be shown, in order to subject the defendant company to liability for the maintenance of the bridge, that congress has in some proper mode required a change or alteration to be made therein, and that the company has failed or refused to comply with such requirement, and has thus rendered itself liable for the maintenance of what congress lias thus declared would become an illegal structure, unless changed or remodeled in accordance with the requirements prescribed by congress.
On behalf of the United States it is claimed that congress has in a lawful manner declared that the bridge in question must be changed in certain particulars, through the action taken by the secretary of war, acting under the authority of section 9 of the act of August 11, 1.888, and thus the question is presented, whether congress can delegate to the secretary of war, or any other body or person, the power to determine whether a bridge lawfully constructed is so much of an obstruction to navigation that the public interests require it to be remodeled or wholly removed. It cannot now be questioned that congress can confer upon the secretary of war, or other agency, the duty of ascertaining whether a given structure conforms in fact to the requirements of the act of congress authorizing its erection, and to prescribe any changes that may be needed to conform it thereto; or congress may authorize the erection of
The next ground of demurrer is that, granting in a given case that the secretary of war might lawfully pqssess and exercise the power to require the owners of a bridge over a navigable river to change or alter the construction thereof, as provided for in section 9 of the act under consideration, nevertheless, to put the owner of the bridge in default, the notice given under the statute must point out or define in some mode what changes or alterations are required to be made. In considering this question regard must be had to the character of the statute sought to be enforced. The section of the act which is the basis of this proceeding is penal in its nature, and the action is to recover a penalty for an alleged violation of its provisions. It is a fundamental rule in regard to such statutes that to be enforceable they must be free from ambiguity and uncertainty; or, in other words, before the citizen can be punished for a failure to obey the statute, it must be made clear what he is required to do or to abstain from doing. If this was not the rule, then statutes could be so drawn as to prove traps, not only to the unwary, but even to those who might desire to obey the law, but had been innocently misled by the uncertainties caused by the ambiguous language of the statute. Now a statute may require obedience to some proper order to be made by a named person, body, or other authority, but in that case the order to which obedience is required must be sufficiently clear and certain to notify the person to whom it is addressed of what he is to do or not to do. In the present case, assuming that the secretary of war had the power to decide that the bridge owned by the defendant company was an obstruction to navigation, and must be altered or remodeled, was it enough for him to simply decide that it was an obstruction, and then to notify the defendant that the bridge must be remodeled without pointing out in what the obstruction to the navigation consisted, or what change or alteration was required to be made? It would seem that in some fair way the bridge company should be notified of what was required of it before it could be adjudged to be in default, and be subjected to a fine; or, in other words, the secretary should declare in what particular the bridge should be rebuilt, remodeled, or changed, so that the owner thereof could reasonably-know what w'as expected of him. It certainly could not be permitted to the secretary, without any hearing afforded to the company, to declare that the bridge was an obstruction, and then to notify the company that the bridge must be altered
“I, Win. O. Endicott, secretary of war, do hereby notify the said Keokuk & Hamilton Bridge Company to so alter the said bridge as to render navigation through or under it free, easy, and unobstructed, and prescribe that said alteration shall be made and completed on or before the ¿1st day of March, 1889.”
This notice requires the bridge company to so alter the bridge as to render navigation under it free, easy, and unobstructed. Literally construed, this would practically require the bridge to be wholly removed, for uo bridge having a draw to be passed can exist without placing some ■obstruction in the way of the free navigation of the stream over which it rests. From such a notice, liow is it possible for the bridge company to ascertain what is required of it, except that it must leave the navigation of the river “tree, easy, and unobstructed,” which is impossible, so long as the structure remains resting on piers built in the liver, with a draw for the passage of steam-boats and other like craft through it. If it is said that such a notice must be construed to mean that the obstruction caused by the bridge must be reasonable, and that it must bo altered so as to be only a reasonable obstruction, the dilliculty still remains that no guide or direction is given to the company for determining how much of an obstruction would ho deemed reasonable. The notice does not require that the bridge shall he such a height, or of a given span between the piers, or that the draw shall be placed at a given point, oral a given angle to the current, nor is it declared that the bridge is an obstruction because of insufficient height, width of span, or otherwise, and heneo the company is left wholly in the dark as to what is really required of it. Whose judgment is to determine whether the bridge is in fact an unreasonable obstruction ? If, under this notice, the company had expended thousands of dollars in remodeling the bridge, and it had then been sued because the navigation of the river was not free, easy, and unobstructed on account of the bridge, what criterion could he appealed to for determining whether the company had mot or failed to meet the requirements of the notice served upon it? If the notice itself had pointed
But it,may be said that the difficulty sought to be remedied is sufficiently pointed out in the first clause of the notice which is as follows:
“Whereas, the secretary of war has good reason to believe that the bridge across the Mississippi river at Keokuk is an obstruction to the free navigation of the said Mississippi river, * * * by reason of- its location, which at stages of water permitting navigation over the Des Moines rapids renders the passage of boats, rafts, etc., through its west draw rest pier difficult.”
■ This recital shows that in the judgment of the secretary of war the .location of the bridge is an improper one; and, granting this to be the difficulty sought to be remedied, it still remains true that the notice does not •point out any remedy to be applied, except in the removal of the bridge from its present location, which, in effect, means taking it down in whole or in part, and possibly rebuilding it in some other location. If this be the real meaning of the notice, and such was the intent of the secretary of war, then we are again met with the question whether congress can confer upon any other body or person the power to determine whether the public interests demand .that a bridge, located and built by express authority of congress, shall be removed or rebuilt at some other location. The situation is simply this: ' The bridge was built under an act of congress which determined its location. When built at the place it now occupies, it was a legal structure, and the navigation of the river was lawfully subjected to the burden thus imposed thereon, and the company could rely upon the act of congress authorizing its erection as a defense against any suit or proceeding against the company based upon the erection or maintenance of the bridge up to the date of the order issued by the secretary of war. If the act of congress is not now a defense and protection to the company, it is because the order of the secretary has in effect declared the bridge to be an illegal obstruction, and this power cannot in such case be conferred upon the secretary of war. Therefore, if the notice served upon the defendant company be construed to mean that the location of the bridge must be changed, such order would be nugatory for the reason stated; and if it be construed to mean that the company must so alter it as to leave the navigation of the river free and unobstructed, then the notice is so indefinite and uncertain that it cannot be held to impose any duty or obligation upon the bridge company.
It is argued on behalf of the "United States that parties undertaking to build bridges across navigable rivers do so at their peril, and, if a given bridge is in fact an obstruction to free navigation, the secretary of war may be authorized to cause its removal, or require it to be so changed as not to prove an obstruction to navigation. As to all bridges not built under proper state or federal authority this may be true. It may be ad-
It is, however, assigned as a further ground of demurrer that the act of 1890 in fact repeals that of 1888, and that consequently this proceeding must fall with the repeal of the act upon which it is based. There would be force in the point thus made were it not for the provision of section 13 of the Revised Statutes of the United States, which enacts that the repeal of a statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred, unless the repealing act shall so provide.
Upon the latter ground, the demurrer is overruled, but, upon the other grounds discussed in the opinion, it is sustained.