50 F. 406 | S.D. Ohio | 1892
The defendants are prosecuted under an information founded upon the fourth and fifth sections of the river and harbor act, approved September 19, 1890. The charges are, in short, that on the 16th of October, 1891, the defendants were the county commissioners of Muskingum county, Ohio, and as such empowered by the law of Ohio to construct, alter, and keep in repair all necessary bridges over streams and public canals on all state and county roads, and then and there had control of the bridge across the Muskingum river between Tay-lorville and Duncan’s Falls; and the secretary of war of the United States having good reason to believe that said bridge was an unreasonable obstruction to the navigation of said river, a navigable stream over which the United States has jurisdiction, gave written notice to the defendants on the 19th of December, 1890, that said bridge was considered an obstruction to navigation by reason of the fact that it had no draw for the passage of boats by way of the new lock just above the south end of the new bridge at Taylorsville, Ohio, and, in order to afford defendants a reasonable opportunity to be heard and give evidence in regard to said complaint, the 6th of January, 1891, was named arid aplace fixed for T.hat purpose; that the time was extended to the 3d of February, 1891, and that on the 25th of February, 1891, the secretary gave written notice to the defendants that said bridge was an unreasonable obstruction to
“See. 4. That section nine of the river and harbor act of August eleventh, eighteen hundred and eightv-eight, be amended and re-enacted so as to read as follows: 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 water ways 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 difficult}' in passing the draw opening or the draw span of such bridge by rafts, steamboats, or other water craft, it shall bo 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 lie shall specify the changes 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 mentioned in the succeeding section may be taken.
“Sec. 5. That section ten of the river and harbor act of August eleventh, eighteen hundred and eighty-eight, be amended and re-enacted so as to read as follows: That if the persons, corporations, or associations 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 he deemed a new offense, and subject the persons, corporation, or association so offending to the penalties above prescribed. ”
Upon the trial, the evidence being in, a pro forma verdict of guilty was taken by consent, with the understanding that the questions of law involved should be presented and considered on motion for newolriai. They are as follows:
1. Was the notice to the defendants reasonable? The charges of the information in regard to the notice were established by the evidence, and are not disputed. It has been held that where the facts a,re clear, what is reasonable notice or reasonable time is always a question exclusively for the court. Toland v. Sprague, 12 Pet. 336; Wiggins v. Burkham, 10 Wall. 132. It appears from the evidence that, at the time of the
2. The main question, and that which goes to the root of the matter, is whether congress has the power to confer upon the secretary of war the authority attempted to be conferred by the act. In accordance with its terms, whenever he has good reason to believe that a bridge is an unreasonable .obstruction to navigation, he is to give notice to the parties owning or controlling the same — after first giving them reasonable opportunity to be heard — to make such alterations as he may specify, and, upon their failure or refusal to make the same within a reasonable time, they are to be deemed guilty of a misdemeanor, and the secretary may direct the institution of criminal proceedings. The power of the secretary depends upon his having adjudged that the bridge is an obstruction, and his adjudication is made final and conclusive. This is a judicial power. The question is one of fact, or a mixed question of law and fact, and it cannot be determined,by a court without a jury unless the defendant consent. It was held in Grant v. Raymond, 6 Pet. 242, Chief Justice Marshall announcing the decision, that the secretary of state of the United States is not an officer in whom, under the constitution, judicial power can be vested. In that case the secretary had gone through with the form of reissuing a patent for an invention. It is true that there was not then any statute authorizing a reissue. The original patent had been granted by the president, signed by him, and counter
In this case the bridge was built about 1874 by the board of commissioners of Muskingum county by virtue of a grant from the state of Ohio under the act of the legislature! of March 25, 1870. The Mus-kingum river is entirely within the state of Ohio. Since 1888, and until the date hereinafter mentioned, it has been under the control of the state, through its board of public works, which maintained a system of slack-water navigation until the cession of the river and its improvements by the state of Ohio to the federal government, March 21, 1887. Since that time the general government lias caused to be constructed in a dam at the head of rapids above said bridge, on its west side and unde)- the bridge, an artificial channel. It has also raised the locks and dam on the river below, thus raising the level of the water above, some four feet. These improvements and changes furnished the occasion alleged for requiring the proposed changes in the bridge. The right of the state of Ohio to erect or authorize bridges over the river which should not interfere with its navigation is conceded, and that such bridges were lawful structures. But it is urged for the government that they were built subject to the power of congress at any time to act upon the subject of the navigation of the river, and to define what structures should be regarded as interfering with that navigation; citing Gilman v.
The verdict against the defendants will be set aside, and the judgment of the court will be that sections 4 and 5 of the river and harbor act of September 19, 1890, upon which the information is based, are unconstitutional, and that the defendants go hence without day.