*1 Bridge 470. Co. v. United'States. (cid:127)

other an intérest It is lite. no acquiring pendente party defence to has that the creditor become a debt bankrupt; if an notice, after suit assignee, permits pending proceed in the name of the he is for its bound bankrupt recovery, by any judg- ment that This is a be rendered. sufficient -protection for n thedebtor. denied, motion dismiss is affirm that to

Granted. Bridge Company v. United States. over the the exercise of its 1. waters of the United n from the commerce Constitution, derived clause of the gave, which by p. 473), bridge that a {infra, its assent resolution across the Ohio at Cin- might be constructed in accordance cinnati terms of a charter con- laws,' navigation by rivqr but in case the free -ferred State should at by obstructed time the contemplated assent, to withdraw such to direct mod- alterations, was reserved. While erecting, ifiC|ations law, Congress, provisions compliance with the p. statute {infra, 473), proceed therewith, tha't it should unlawful declared unless certain changes specified company be made. The them, should made and com- Held, bridge according-to plan. pleted the altered 1. That'in view of Congress thg paramount resolution legislation of is the law determined, are to be rights company, by involved accept- became'subject to all ing provisions, limitations reservations-of impose. fit to 2. deemed .That the withdrawal case, is, purposes equivalent of this its assent pos- ato notwithstanding legislation, that, State itive further main- enactment plan prescribed bridge according first tenance of unlawful. changes Congress, by requiring and modifications to 3."That which the ' conformed, liability no to the latter. incurred whenever it determined’that regard withdraw its assent

2. could ' requirements, bridge other than originally th'e construction .those protection dué prescribed were essential to secure river. Appeal from the United Circuit Court States for the of Ohio. District Southern (cid:127) General the 6th On February, Assembly an act to incorporate Newport Cin- Kentucky passed Bridge Co. v. Oct. 1881.] to build a across

cinnati Company; between and Cincinnati. This River char- the Ohio Newport shall that the said be constructed so as ter provided Ohio River further than obstruct *2 of the United authorize.” laws States the in the same- of the the 3d General As April, year, On a statute of enacted creation Ohio authorizing sembly to .build across the corporations bridges and organization act, in that the order river. This built bridges same that. not obstruct should navigation;- provided they might accordance with an provisions “in act be erected 1862, 14, entitled ‘An Act July Congress approved act or of any establish certain post-roads,’ may ' Its eleventh section the same is' hereafter on subject.” pass — . : follows “ such fix 11. That or any company may change span Sect. which it erect and construct may altitude of across any bridge Provided, that the Ohio River: such span any bridge'be in the clear channel, three hundred feet over the main than less hundred and than two feet in twenty not-less the clear in one spans, height next adjoining bridge the main channel shall not be span centre less than (cid:127) feet above surface of the -water at low water, hundred one elevation to the for such bottom chord measuring above extreme high-water mark as may height pro- in -force, act now or any which may hereafter vided this section shall not apply any bridge built with be passed; n with accordance an draw, in* provision ‘ 1862; 14,. An entitled Act to certain July post- establish approved act that hereafter roads,’ Congress may or pass upon subject.'” this act' same day passed, Newport

On Cin- under it in Company organized Ohio cinnati Cincinnati and between Afterwards, bridge Newport. build.a 1868, the 16th of Ohio Kentucky April, companies, charters, in their were respective provisions .con- pursuant ' solidated, one with became corporation, general powers companies divisional originally possessed. Bridge Co. v. United States. 14, 1862, the act of The material c. provisions July ” “ to establish certain' entitled An Act post-roads (12 Stat. —- as follows": are 569), enacted, he it shall S. And be lawful Sect. further or other railroad whose companies line or company lines n be built to the of road now or shall hereafter Ohio River River, in above mouth of the accordance Sandy Big with the of such or terms of the charter or charters company companies, to for the more build a across said river perfect connection of roads, thereof, and for the any such trains passage under the limitations and hereafter provided. conditions enacted, 4. And he it that any erected Sect. farther may, of this act privileges option same, be built either aas companies building drawbridge, draw, or other form with unbroken ¡úvot or continu- ous Provided, if the shall be spans: made unbroken and continuous shall not be of less spans, elevation *3 than above mark low-water over the ninety feet channel of the said river, in casé less than feet any forty nor above extreme high water, location, at of as understood the for such point measuring the to the bottom chord of Nor shall bridge. elevation the of sj>an of such the main channel the river be covering bridge less than feet in with also one of the three hundred next length, adjoining than two hundi'ed and in of not less feet twenty spans length, and the said shall be current parallel of the of piers bridge the also, And river near as provided as practicable: under be constructed as a built this act shall bridge drawbridge, be with a the the same shall constructed span main chan- river, nel at the time of the understood erectión of the of less than hundred feet in length, not and bridge, three .said above shall not be less feet span seventy than mark, lbw-water. and to the bottom of one of chord measuring bridge, next shall than huudred not be two adjoining spans less twenty and feet in and also that be a draw there shall length; pivot constructed in at an and every accessible point, spans of not than one hundred each side less feet in of length also, first provided central or the draw: And pier that said- draw shall always opened upon reasonable promptly, signal, for not, of boats whose construction at the time, passage admit of their under the passing permanent spans said bridge, except that said shall not be draw when opened required, engines Bridge Co. v. United -States. Oct. 1881.] are or when trains over said passenger are bridge, trains passing occur in the in shall unnecessary delay no case due; openr’--' but of said or trains.” after the engines said draw passage March, a resolution the 3d passed On the assent of the United States resolution entitled A giving Cincinnati bridge.” construction Newport — follows: Stat. 347. Resolved Senate and House Representatives of of. assembled, America consent United States of Gont/ress aof be, and the same is to the erection hereby, given Ohio, Cincinnati, Ohio over the River from the city and Cincinnati Newport of Newport, Kentucky, city chartered corporation organized Company, Provided,‘that Kentucky each of the States of Ohio:

laws of with an span said is built unbroken or continuous clear, over the four hundred feet pier pier, less than- -river, built in respects main channel of and is other an act entitled conditions limitations of accordance with ‘ fourteenth, póst-roads,’ July Act to establish certain approved An That said when com- sixty-two: hundred eighteen resolution, manner in this shall be deemed in the specified pleted structure, and shall be a to be legal post-road and taken States; the mails of the United but re- transmission to withdraw the -assent hereby case the given serves time be of said river shall free obstructed erected under the any bridge au-. resolution, or to direct modifications this thority and alterations of bridge.” resolution, After consolidated passage erection, draw, of a drawbridge pivot

began .with .a amount large money expended undertaking, *4 3, it the of March completed, passed before' 121, fifth section which id. c. the is follows: (16 572) 5. be unlawful the and That shall for Cin- Newport Sect. other to company person, Company, pro- cinnati Bridge. constructed over the the being ceed erection now bridge River, Cincinnati, Ohio, to of New- city the the city from Ohio thereto, and the unless the said Kentucky, approaches bridge port, feet, hundred channel four span so constructed be shall at span headway have under said clear low located, shall as now Bridge United Co. Cfc. water, one hundred feet below any point of said channel span, and in case no draw shall be such in required said bridge; all the other said which cover bridge, spans Ohio River to low- mark, have a clear water headway shall not less than seventy mark; above and the low-water other spans feet said bridge, shore, to each be made of less elevation extending than seventy mark, to feet above low-water accommodate a regular grade said And when the approaches bridge. foregoing requirements shall complied by have been and Newport Cincinnati said. the location of said bridge, structures and Company, be deemed shall approaches, thereupon and legalized, declared structures, and shall to be lawful be and known recognized .as plans changes made bridge post-route. necessary this act shall be submitted said to the Secretary War for his And in the event of the approval. bridge company act, for in this be making changes provided shall lawful for after shall made said have company, they changes said thereto, and as herein approaches provided, to file their bill in the United States in the against Circuit equity, Court of the Ohio, United States the Southern District and full jurisdiction is said court First, conferred to determine: hereby whether on which it has bridge, according -plans at progressed, act, of this has been constructed so as passage thereto; and, with the of law comply provisions relating second, be, States, of the United liability ány there said com- if reason of the required made, pany, changes by and .act the said court shall determine that the United States is liable, .if that said was so then built, the said being court shall further ascertain determine amount actual and cost expenditures reasonably required to incurred said and its changes in making approaches, authorized or hereby excess cost required, said building to the approaches .according plan proposed before the this act to be made. And the changes required by said- court further hereby authorized and required proceed therein to final- decree, inas other cases in "And it shall equity. be lawful for either to the said suit to party the final appeal decree of said".Circuit Court Court of’the Supreme .as in Court', cases, other the Supreme shall thereupon proceed to case, hear determine and make filial decree therein; thereupon, such decree shall be in favor of said.company, of-the Secretary shall, United State's Treasury out of any *5 ' Bridge 475 v. United . States. .Co. Oct. 1881.] the to said pay not otherwise treasury appropriated, moneys Court the Supreme as shall said such sum of money company Provided, neverthe- company: said paid so decreed to the Secretary Treasury the less, shall be that money paid no States, of the United until Supreme-Court company said decree aforesaid, render final shall taken as upon appeal in favor of company.” case . new

The to these requirements',- promptly company yielded its and, on the altered plan, brought haying completed the. this suit in the United States court below against equity the court dis-. increased cost.' After recover the hearing, was taken. bill, and from that decree this appeal missed M. Mr. William Ramsey appellant. - Solicitor and the The General Attorney-General States. case, Waite, deliv- Justice after stating Mr. Chief' of the court. ered the opinion whether, is, on itself

The .first question presents rests on several acts of the face liability the cost United States pay company the.- It cannot directed in bridge. that was change plan built according for the act 1871 bridge be denied that structure would have been lawful plan original' until withdrew could have maintained the company assent, be made. alterations to paramount required The that affect bridges regulating is States It comes waters the United- Congress. nations commerce foreign from the power regulate Co., v. Black Bird Creek Marsh Willson among Co., ; v. Wheeling, 2 245 State Pennsylvania Pet. &c: ; 421; Wall. 713 Clin How. Gilman v. 18 Philadelphia, 8 Puller, 454; v. 17 id. id. Railroad ton 10 Bridge, Company 459; Duluth, Turck, v. 560; S. U. Wisconsin Pound of. rivers is one of id. That Ohio .navigable 379. of six be conceded. It forms a must United States boundary its waters the commerce large. very upon have -in this case what States No can arise question done, Ohio Kentucky for -both required n Bridge Co. v.

476- United States. with the comply regulations Neither ai’e -Congress. we called to determine what would have been rights-of-the *6 license -no company original- future control (cid:127) had been reserved. The resolution by on which relies contains this distinct But company provision: reserves the (cid:127)Corigfess withdraw the assent right hereby in "case'the free given -said river at navigation .shall time any and obstructed to be by any bridge erected under the of this resolution, or to direct modifications and alterations of An bridge.” of’ legislation in reference Copgress examination n bridging of streams shows this to have been at’ that time a new It had before, but once provision. appeared then in the T9, 1869, of Feb. c. 37 act Stat. (15 at the same 272), passed session Congress,. across the authorizing a Con- bridge Middletown; necticut at first enactment The on this by Congress is genéral subject 6 found sects. and 7 of the 31, 1852, act of Ill, c. Aug. mak for the. Post-Office ing appropriations Stat. Department (10 which declared .-the across the 112), Ohio at bridge Wheeling to be then a lawful structure. existing This act simply gave leave to bridge maintain a bridge built, already reserved no future control. followed, Next ten after, 14, 1862, act e. July 167 years id. (12 569), which, then in the legalized course of bridge construction Steubenville, Ohio at .across and contained the general pro as to visions Ohio above bridging mouth Big to in the referred resolution 3, Sandy, March Í86&. In act, also, there was no reservation of power by Congress. next, FebvT7, was the 1865, c. 38 id. (13i 481), 14, 1862, which the'act of by July was amended so. as to authorize erection of a across the bridge Ohio Louisville. too, this, there no In was reservation of power, specific were directions given, num the'height draws, and location of and ber length was spans, all sKoúld be so provided constructed as not expressly, that’ The same another act -interrupt navigation. day passed, c.'39 across the Ohio (id. 431). between Cincinnati then built in Covington, being accordancevwith Oct. 477 Co. v. United 1881.] of, the laws Ohio and declared Kentucky, lawful ‘structure, and no reserved. There was nó further legis 25, of this character until the act of 1866,.c. lation July which authorized Stat. 244), across the (14 eight bridges Louis, at and above St. one across the Mis Mississippi that, souri. This act in case of provided aris any litigation obstruction from- obstruction to the alleged free ing river, of said the cause be tried before the Dis trict United States of State which Court any por-, ” touches; tion of said obstruction or sect. 18 was “ That the to alter or act, follows: amend this so as to pre vent or material obstructions remove said river construction bridges, hereby expressly 27, 1867, reserved.” The act of id. Feb. c.. (14 412), Clinton across legalized Mississippi, 21, 1868, *7 act c. id. the act of Feb. 10 37), July (15 1866, was extended so as to over'the Missis include a bridge 6, 1868, at La Crosse. the act c. 134 By (id. sippi July a across Black in was 82), bridge River Ohio authorized. Afterwards, 1868, 2Q, the c. 179 by two July (id. 121), were authorized across the bridges other Missouri. In all these the of alteration and acts amendment power was reserved the in exact in the act of 1866. language employed

This the brings history congressional the legislation the waters of subject the bridging United public States down the session of to when the resolution in favor of the and Cincinnati when, Newport Bridge Company passed, seen, has been the already peculiar-form reservation which in that resolution was the appears first time introduced. — session, Two licenses were at that granted one the act of by 19, 1869,-c. .Feb. 37 to cross (id. 272), Connecticut, the other the resolution now in by and both con- question, tained reservation. On the same the resolution day was. 3, the act of adopted 1869, March Congress passed' c. 139 (id. to 336), across the legalize River, East bridge between New York, and in alter, at Brooklyn, to “power time any amend, or repeal”-was terms and without express any reserved. limitation ' seems, From this to us clear that the peculiar ianguage Ct, Co. v. United States. [Sup.. the reservation now in was intended to have a question special It had been considered signification.' before to enough provide that, to or remove all material prevent to obstructions navi-' amend,” to alter or gation,”the “right expressed usual form,' be reserved. But when to build given belirw such as had before Big Sandy bridge been built only above, it was deemed commerce, interest expedient, (cid:127) to be more specific, to by reserving withdraw assent of ,the to what be an might prove obstruc tion to at least navigation, a reservation of imply make which, that' unlawful continued, while the assent would be lawful. That this is what was intended by language used be inferred from may earlier fairly on' the same legislation Thus, as general subject. 2,1805, act of March early by c. 30 Stat. 330), (2 leave authorizing grant to.a to build bridge across company bridge mill-pond marsh,in the Y., at navy-yard N. “that Brooklyn, provided, if at future time it shall to the President of appear States that the United-States is .the property injured he revoke the bridge, him permission granted by Afterwards, same.” 3,1855, the act of March erecting c. id. was au .680), Secretary (10 Navy thorized another connect its bridge permit Me., at and to have a Kittery, navy-yard right W.ay through yard provided it.was be discontinued time. might right way if, not be could under- Secretary. surely claimed cases, revoked, reserved in these' President had the power at the given respect permission Brooklyn *8 or the had discontinued that at the' Secretary Kittery, yard, bound States would be either to make United morally legally them, sustained or either of the loss on companies, good is, the réason in which' that account. And language reserved that all the expressed clearly implied was. risks, and discontinuance of revocation were to be assumed here, tbe thus limited those to whom were made.- So grants to an' which in experiment, might untried assenting one im detrimental an prove stream,. reserve the thought proper-to right.to portant Congress Co. United Oct. 1881.] — — if what assent, its revoke permission, might its

withdraw should, fact, in come as the consequence happen possibly ” assent To withdraw 'was new granted. im and what would be to revoke the same permission,” is be, like will circum form of' from one expression plied in true, the case of the It is stances, the other. navy-yards, from excluded and the were States absolute had jurisdiction, Congress in legislation But the power respect altogether. inter-state is as free commerce just for the preservation other within subject sphere interference as any State supreme, action authority.. legislative therefore, When, do. all Con overrides may. States river declares across a a bridge gress proper way structure, to be an no the United States unlawful legislation can of a make it lawful. who State Those State author assume all the alone risks of ity necessarily legitimate congres ' case, sional In the interference. both the Ohio present were, divisional companies Kentucky by express provisions n their charters, respective subjected controll paramount was, therefore, The consolidated ing power. prohib ited from more than the laws obstructing authorized, States to build its required n accordance act of provisions or any other law that thereafter on 'the Congress might pass subject. became, Hence resolution tbe of both operation enactments; and State the law on which the congressional rights It was the license for the company depend. paramount erection and maintenance bridge; company, by became accepting provisions, subject limitations and reservations of fit saw to impose.

From this conclude that withdrawal we. by Congress its assent to the maintenance of the when properly made, for all the is, case, of this to a purposes equivalent posi- enactment tive from the time of such withdrawal further unlawful, maintenance of the shall be notwith- legislation several standing subject. States directed, If modifications are is, effect, assent with- legal drawn, unless are required made. changes contended, however,

It is that under terms the reser- *9 v. Co. United States. the assent of vation could not be withdrawn until it had been in some ascertained way judicially bridge, authorized, fact, either did in built, would if substan obstruct free Such, tially materially think, we navigation. is not the fair meaning In language State employed. Bridge Co. v. The Pennsylvania How. Wheeling, (13 518), &c. was settled in this court judicially that a as constructed did interfere with illegally navigation; but when afterwards in the exercise of its constitutional authority regu commerce, structure, late legalized enact legislative ment, the court held How. (18 that this act of 421) legislative removed the objection the further power continuance because, in the opinion legislative department the obstruction which had been government, erected wms.no more than those interested in should submit navigation to for It is to observed be that the general good. question now is not consideration whether the has bridge company failed to resolution, requirements but comply with are all that the due whether.those requirements protection first is free demands. The undoubtedly proper last, think, we subject judicial inquiry, belongs alone exercises the legislature. Congress, legis lative is the constitutional government, protector Its inter-state commerce. of this foreign supervision - nature, is and all in its subject continuing grants special a branch of so privileges, affecting important governmental construed. power, will might certainly strictly Nothing to have been surrendered unless it was presumed manifestly doubt should be resolved in favor of the Every intended. As can exercise government.' legislative only, all its reservations of connected that are power, grants' made, must in their character. In necessarily legislative case the is present reservation rvithdraw the assent and to direct the Which modifica given, . tions and This was to alterations be done in case the free of the river should at time be obstructed under the which ivas granted. whether originally proper subject legislative inquiry the resolution made sufficient for provision protection Bridge Co. v. Oct. 1881.] to indicate that

commerce. There different nothing was to be instituted determine whether the assent inquiry *10 withdrawn, should be and as the with- had been given character, an in its drawal involved legislative that, on which it was to be predicated presumption inquiry would' be also. No is made for provision legislative instituting to have the determined question judicially, proceedings even if did the courts should determine sub- bridge obstruct could stantially navigation, Congress not be its to withdraw assent to the further continue compelled This is anee structure. evident from the Wheeling Case, where, seen, as has been Bridge assent'to congressional a substantial was obstruction sufficient recognized prevent of a decree of this execution court the abatement requiring been, what, this,assent, but for would have in the judgment court, a assent, nuisance. The withdrawal of public therefore, has been left to on the depend judgment Congress in the exercise of its discretion. For this legislative purpose must make its own Congress inquiries, determine itself whether the obstruction that has been authorized is so material and so substantial as to under all the circumstances of justify, case, an exercise of the which was reserved as condition of the made. . original grant

It is next insisted that if in the judgment-of Congress removed, to be public good required bridge alterations structure, to be made its must be made just compensation for the loss incurred what was company directed. It is true that one cannot be of his without due deprived property law, and that process cannot be private taken for property use-without In the public just case compensation. present asked bridge company erect permission In to this bridge. was response request permission but given, on condition that it revoked time if only might' found detrimental This was con- navigation. dition was an essential' element of and the .the grant, conferred assumed accepting privileges grant risks of loss exercise of the arising Con- saw fit to reserve. What gress from Con- company got franchise, was the of gress made defeasible at grant expressly VOL. XV. ’ Co! United States.

will, to maintain a across one of the great highways commerce. This franchise was a but from species property, the moment of its continued origin existence dependent on the will of and this declared in terms express .was of„ on face which it was created. In the use grant by thus franchise it was granted, company might, would, thus expected acquire property. acquired property could itself withdrawal of its appropriate not. built, assent to the maintenance of the that was to be franchise, but the when- revocable by express agreement, ever it could be used without judgment not. substantial and material detriment to the interest of navigation. withdrawal of franchise A render might acquired property it,, it, faith and to be used in connection with of. less valuable; that was a risk which the company voluntarily *11 when it assumed limited license expended money which alone to It was Congress willing give. optional with the to not what was but or hav- company accept granted, it must submit'to the control which accepted, ing Congress, reserved, exercise of the that was legitimate power it to deem the common insist good upon. f<?r abused, are We aware that this-is be may. it is fit to but one saw reserve. For Congress protection or unwise within limits of unjust legislation, against recog- nized must power, people legislative look.to polls not to the courts. would an abuse judicial the courts to to interfere with constitutional attempt dis- cretion of the legislature. has done to

What been seems have been with due to regard all concerned. The Constitution it made rights to all commerce which extends be- duty Congress protect lines State obstruction or-under against yond authority Two States had been for leave to. States. to applied an leave, national river. but important gave They it to the made constitutional control of subject Congress. to, wanted, when assented to what was applied terms' reserved itself the revoke what express done, made, been or had alterations to in case ex- require n the structure which was to be perience proved put up. v. United Co. 483- Oct. 188Í.] interfered Un- navigation. The next was at once this Work- begun. der year, 240, 1870, e. sect- 5 Stat. the act (16 227), July for the rivers improvement appropriations making large detail of War was three harbors, required the'Secretary or in the erected process to examine bridges engineers Ohio, next of erection across report them,- whether, their bridges, opinion, constructed, did to be or would inter- constructed proposed safe and if did or would so fere with navigation; free they interfere, extent of and elevation' above space report what obstruction, and an 'esti- would be water required prevent built, and in the the cost Of pf changing bridges pro- mate recommended., so as to to what. was cess building, conform the act was the next passed required At .the session tp alter and Cincinnati Newport Company suit allowed this purpose brought determining had been whether incurred liability damages pecuniary States to the for what was United done. In obligation way recognized fully resting a, when to make guilty wrong, government, rep- every does from suit aration. Exemption necessarily imply Here the courts liability.' Congress gave exemption done, determine' whether a had been wrong jurisdiction and, so, to award compensation money by payment had been of what In our the cost improperly required. opin- do, did no more than was authorized to ion oñ the States to there is no answer in liability resting *12 damages. insisted that the terms of' the

It is next statute authoriz the is established,' the suit United States ing liability as it shall be determined had bridge, far pro if.it sp constructed with substantially gressed, comply thereto.” We do not law so under relating provisions ' as follows: The Full language.is jurisdic statute. stand said o tion is conferred cour* determine: first, hereby which it has plans'on whether the according pro act, has this been at the so as constructed gressed, passage-of ‘ of law provisions to comply relating substantially Co. v. United States. [Sup.' thereto; and, second, the of the United liability States, be, there to the said reason company, by changes by to made, this act be and if the said court required shall deter mine is liable, United States and 'that said bridge built, was so then tire court shall further ascertain being determine the amount of actual and cost and &c. expenditures,” rule has been fixed the statute. damages As to

that the court has no discretion beyond excess ascertaining cost, before But can it damages must given, appear was, 'both law, liable, States arid that had been constructed in accordance the require- law, ments of the down to the time the change plan directed. That of the United States was not liability made to on the fact that the law in depend entirely respect-to the form the structure been with is had complied apparent, because if such had been the intention of Congress would been have to submit second entirely unnecessary question for determination. second is as But 'the clearly submitted as first. are not if either is found in Damages given ' favor of the United States. No matter whether- the United law, not, was, States if the had liable or not been with, law, so as constructed there comply If, could be no declared. That how- recovery. expressly ever, built, had been determination of the properly that, became in our question legal important, liability on opinion, depended entirely

Constitution and laws the United .of require without change making just compensation money.

Decree affirmed. case, this sit in nor Mr. take Justice did Matthews it. any part deciding , Field, Miller,

Mr. Justice Mr. Justice and Mr. Jus- Bradley tice dissented.- I dissent decree

Mr. the- Justice Miller. case, court in as I cannot to all the agree grounds dissents, which- brother Field I will state my, very briefly *13 (cid:127)Bridge Co. v. United Oct: 1881.]' which have

reasons seemed *fcome to the reversal of the. require of the decree Circuit Court. form, assent in the most solemn

Congress, gave 1869, resolution the erection of a over the Ohio the character of which River appellant company, in the It reserved described resolution. tbe to withdraw right thus, assent free of the given case river navigation’ .the should at time obstructed substantially materially to be erected of this resolu by any tion, to direct modifications and or alterations of said necessary finds that The- Circuit Court the third up bridge. day March, 1871, had erection proceeded’ bridge company ‘;in of their same so bridge, constructing respects law substantially comply provisions relating thereto.”

On the.act under this suit is day Congress passed and it is the construction act brought; connec- that;the tion with the resolution of 1869 decision of this case must turn.

It will observed that the resolution reserved to Con- interfere and assert its in case the gress power only should at time appellant substantially obstruct river; and, free event, the reservation was that withdraw Congress might the assent so to the erection or given direct the bridge, modifications and of said necessary It-is bridge. alterations' whether could do both necessary inquire these not, not, for it did as I things understand language 8, 1871, the act of' March C. withdraw or intend to .with- draw its assent previously given. did It exercise the alternative reso- given -joint

lution, and direct the modifications and alterations bridge.” which this is done is the fifth and legislation by last of an section for the- service making appropriations Post-Office .Department. observe it contains no important declaration

that the as tiren constructed or in of construction, process would either obstruct the partially Co. States.- River, its decree on the nor this court base does Ohio. *14 of that Nor do counsel before argument

existence fact. was a this was or that con- insist that it us proved, which assumed in to the exercise Congress dition power in construction of the the statute requiring alterations passing $200,000.- bridge, costing declare as a reason for the did not exercise Congress

Why that as authorized it this bridge originally and obstruction-to did it was would be an navigation? or why that declaration and content itself withdraw- making assent, would then have do ? as it to ing to this most reasonable one best answer question, the one most with the evidence to consistent be majde, exist, did not récord, is that either in this the fact wao to found action not so willing any. apparent, it. 6n

, of that with this'view entertain- But question, Congress, view of its obligations also a powers regards just ing determined to exercise such and the bridge, appellant the structure from a had, draw- changing the-purpose above the water that no draw to a high bridge btidge, was. necessary. this; the same but in section did prescribed

. It forbade the other.mode proceed change construction, relief for the- provided equitable injury inflicted on somewhat which this arbitrary Company. Bridge declared

,',I that it was have competent repeat construction, had it' that the as was in proved process to the free substantial and material obstruction to be a naviga- assent of river, for that reason the tion of that it would be. an ob- erection was withdrawn. Or made, were struction unless -modifications of plan certain- them to be made. could prescribe, require which Congress ' no action on the it did It based assumption But neither. was or would an obstruction to navigation; from a low with a to' it determiffed change draw, a draw. The difference in without =high bridge is well one who these two known travelled over has every Oct. Co. United 1881.] rivers,

our Western and I am with no less familiar than myself across the undér ten built acts of drawbridges Mississippi are not substantial or material obstructions Congress, of that river. the navigation great therefore-, never intended to act on the reservation

Congress, No contained in the resolution. reference is made to that this total resolution in the act requiring change plan. reasonable, therefore, than,, more

Nothing to its a structure which resorting high prerogative requiring 'material, not- substantial obstruction to would no only' — — .understood, words but one well which would navigation, it, nor interfere in no impose delay passing slightest manner see that should possible navigation, equity *15 for-the inflicted justice loss this required compensation by . change. this,

It did see situation. the provided Until structure was no one tell the cost of the completed, could tribunal, When the safest required. completed, as changes to determine this court. Congress was a thought, And that court not restricted rules might a court rigid of. law, it matter to. referred the a court of with instruc- equity, tions to as in other cases in It proceed equity. required to court determine the actual and costs and expen- ditures reasonably required making incurred ordered,” and it changes instructed the of the Treas- Secretary to the amount so found. ury pay - It ascertain, the court to “first, .required whether the bridge, to on has according plans progressed pas- act, of this has sage been constructed so to as of law comply provisions thereto.” The court relating found was in law, to .that conformity including, course, the resolution joint assent of giving Congress. “Second, the be, if there of the United liability, any States to of the reason this act company by changes by required.” The whole argument court is opinion founded - this, there And potentiality be.” the whole resolution, scheme its assent purpose joint withdrawal, failure power qualified Congress Co. United States. the existence of the declare condition on this right bcj exercised, was to the fact that the law required withdrawal the court to had find-whether appellant proceeded accord- law, and the court found it had so ing proceeded; loss which the bear, great appellant compelled the reference of the whole tb a court are all equity, .matter that we throw ourselves back on the ignored, general waters, absolute defeat losses, claim for out of the exercise eminently just growing It is for me to believe power. impossible went all this tedious to have court through, legal machinery decide exercise without respon- (cid:127) is habit of that not the to refer sibility. body intentionally courts, of its constitutional question country. ” Nor such construction of the words.“if there be nec- were two There in which essary. contingencies have, acted, did, without ob- might incurring any just to make One these was that compensation. ligation have been built to the terms bridge might conformity resolution, and in event the «-was joint ijhat no condition-to of the action of re- complain The act this fact to' be ascer- change. required' quiring,' court, and it tained meant that no evidently damages unless it be awarded found-that should law was com- with. plied also, while ascertain

Congress might, declining .to itself authorized, was whether a sub- the-bridge, *16 likely prove and n material obstruction to stantial have ’made ^navigation, ordered to .compensation change they depend upon fact, of that and left it existence non-existence to the court determine. to court, to into This refuses this latter and -inquire question, fact, which the court re- notwithstanding expressly was. find, to is found in.favor-of the on. appellant, proceeds quired statute, what I think is a fallacious view of the namely, the court intended tb refer to of its con- Congress question stitutional to character and it power change of that thus decides.in favor whole power, disregarding v. Co. Oct. 1881.]' States.- acts on two structure of thé to compensation based. intended to waive that I think and in Congress .question, fair and to favor of losses incurred dealing pay justice act which if it under the compensation, very gave as far as had found was in con- that the bridge, progresséd, would not be a- law, and substantial to" material formity on that obstruction to navigation completed plan. I am not able to the ma- Field.

Mr. Justice agree case, their in this court nor in judgment jority for it. Their reasons opinion proceeds upon assigned theory over bridges waters crossing navigable power Congress assent. Its to which I cannot authorize construc- power tion of conferred such terms bridges being express by Constitution, must, exist, if it be deduced from the power nations commerce the'sev- among regulate foreign and. authorizes eral States. This latter prescribe in its various rules which commerce conducted forms may countries, and those of other between our and between people States; of different and'also measures to adopt people facilitate increase it. When Constitution was adopted, commerce -with nations even between the foreign several was carried means States of vessels. Its principally reg- therefore, ulation, such harbors, control over our required bays, streams them or connecting different navigable free from keep might unnecessary obstructions; extend might' legitimately making vessels, would facilitate passage improvements render sé safe, their of their anchorage expedite car- discharge of their and the' crews. To landing passengers goes waters over under the extent com- navigable goes, Unless, clause; therefore, further. mercial ho free navi- waters is impeded what a State gation public with its cannot interfere do or action. And permit, I their free shall hereafter ex- what is meant by of a doctrine plain. paramount to authorize streams —-either their crossing bridges. is, them, control them when con- construction, or regulate *17 Co. v. States. — from, structed derives ,no free support protect .the of such If a built example, ..streams. State, under the law of a should cross a stream, at so navigable and in such a as in high no point, obstruct manner way, its free could not interfere with navigation, Congress the struc- ture. Its would not authorize the permission building, nor removal, command authorize the while bridge. And declare that' n Congress' may bridges particular height shall not be an obstruction dimensions to the free navi- deemed streams, of. the it cannot interfere with gation of a bridges different character, size unless to be an they prove impedi- to such ment navigation. should

Of undertake the construction of course, Congress- service, road for the or other national purposes, postal might authorize the erection of a over streams, connect the road on sides. But it is not of opposite works, them, that' we are' bridges connecting of. speaking; but of State-, built under the law a and' of bridges the power has to interfere.with and control .which-Congress them. This view of the limits of the will be if we it in more connection with clearly apparent, consider docks, wharves, and construction of Some of our piers. bays - miles width. Such is the' and harbors are size of the bays and of San Franciscoand some of the New streams York built, are and wharves like the piers Mississippi ,afe mile in width. Hudson, The several States .a within their the soils under tide-waters limits. own Speaking to lands under the reference tide-waters of subject on.-this “- Francisco, this court San admission Upon bay said: with,the into the Union California upon equal footing origi in, States, and dominion and nal' absolute property sovereignty over, under the her limits tide-watérs within passed soils State, with the the:title to consequent right dispose soils, of said she deem such manner '.any.part might proper, to 'the over the -paramount subject only waters,, as such so-far navigation-might required by nations sev commerce' foreign among necessities which was vested eral the' regulation-of general ssioners,18 v. Harbor Commi Wall. 57. government.’’ Weber .Bridge Oct. 1881.] Co. United asserted in Pollard's Lessee doctrine was *18 same previously The Waddell, 367; 212; v. 16 in in Martin Pet. 3 How. Hagan, v. 436; 423, and in Wardwell, Wall. v. 6 subsequently Mumford California, of S. 391. The State U. Virginia, v. McGready soils, in 1851 of of such her granted disposition right exercising tract of land covered Francisco a of large San city ; has and since then the tract been of the tide-waters bay wharves, streets, and blocks buildings and filled piers, up, character have been constructed most costly permanent width, miles its free navigation The being it. bay blocks and streets, the new of buildings in no impeded by way were once floated discharged. vessels cargoes where is as over Now, control of Congress bay complete streams of the State. as over the unrestricted navigable that, is, in its its commercial power, it in the exercise Could wharves, of the direct the destruction' control navigation, streets, where, been built in- have the buildings, I doubt whether flowed? 1850, tide-waters of the bay would, his who hazard reputation could be found jurist be- not? answer. And Simply an affirmative why giving of com- for free purposes until navigation bay cause no interfere with the has merce is Congress power impeded, wharves constructed. buildings* constructed, under au- are wharves and

There piers State Hudson New York where the waters of the City, thority, our There are wharves and once flowed. bays piers which are built in their But as struc- harbors waters. these do river in tures not interfere with the free navigation case, cases, nor of the other the one and harbors in bays has in Con- no ever ventured to assert a judge jurist to order their be- removal at its pleasure; simply gress until on its does arise cause interference part what free is obstructed. On waters pos- then, sible can order the removal bridges ground, States, streams, built over navigable do not interfere free the' when with the they the most I can streams? With careful give consideration I am it clear unable find me seems subject .any.,: To- that no such exists. arbitrary power ' ' v. United Co. States.. of the State over internal commerce must also While' the considered subject. Consti treating commerce,

tution vests regulate the several with each leaves the regulation among “ its internal Mr. Comprehensive,” commerce. Chief Jus says ‘ Marshall, is, .as word among tice may very properly to that restricted commerce which concerns moré States than .one,” and the State, then, internal commerce of a completely be considered as reserved the-State itself.” may Gibbons 9 Wheat. 195. The Ogden, State over' jurisdiction limits, within far as waters be neces - commerce, internal of its is as regulation sary complete as the over them for the regulation jurisdiction said, inter-state or commerce.' On this we foreign subject .in *19 Mobilev. “The Kimball: States have as full control County of their internal commerce as has ..over over com purely Congress ; merce the sevdral States nations among foreign commerce, of that internal and insure promote growth pemove have an its undoubted obstructions safety; they rivers, channels, their from their and im deepen harbors not them do their free prove generally, they impair naviga States, the laws of the United or tion, as"permitted ftheir for the o improvement defeat system any. - of' government. Legislation general provided by mentioned, within limits does States, for purposes commercial power Congress.” mot upon infringe 691, 699. U. S. think, said, follows, has been that what I posi- '.. court, thé as paramount do of the'majority

tion streams, is not ten- crossing over- navigable bridges Congress State, of a nor can a cannot invade rights able. Congress exercise of Federal just powers impede State is, con- .1 draw that The conclusion government. State, does not if.it interfere the. authority structed by structure, stream, is a lawful the' free navigation .with or nor taken destroyed by' can neither .and thus taken, that other State, may as property private except just, compensation. is, making purposes public in be borne mind regulate also It must V. >RIDGE Co. Oct. 1881.] UNITED STATES. States,

commerce with nations and the several among foreign extends commerce land as that on to.such well naviga- State, waters'. There are on land in ón ble highways every commerce, which a inter-state and is. far-greater both foreign, conducted, than that is borne upon navigable waters.' can commerce shall be free from require that.this obstruction as that on waters Unnecessary navigable connecting two is more States the sea» There leading nothing the Constitution distinguishes regula- .which respect tion it exercise in either case. hr all its Its ex- power, limitations, tent and with all is the same both. The fact roads, waters are natural rail- highways, construction,'does are artificial .of ways,, affect and'.canals is, That one of of inter-state and power. regulation foreign ' commerce whatever channels conducted. If cross- bridges natural cannot be constructed without ing con- highways sent because it is vested with the regulate commerce with nations and .like. foreign among reason be constructed without such bridges cannot consent over artificial on land. The highways argument neces- of the consent in the one case sity other, good equally is unsound in In both. equally nearly every county State, every have been constructed bridges under State author- — thé ity railways, of commerce great in modern highways —times, and it has never .been consent suggested to their construction was at all necessary. doNor I find in the- decisions of previous this court any *20 of a in recognition power authorize Congress the construc of tion over bridges streams navigable within or bordering . States, the in the sense that permission will their justify construction, and that without it such construction would be — unlawful, course, of excepting, Which are of bridges parts —(cid:127) works undertaken for- national or of purposes, a power them, is, that them,- regulate, control after are con they . structed There are in the expressions of the opinions judges in Case, in Wheeling Bridge Howard, 18th of that, under commerce, power tcCregulate declare Congress what shall and shall be deemed of law an judgment' not obstruction to navigation. But these in their expressions,' Co. tbe before the court. were not called for case

generality, for a determination of the whether called question That only court to be unlawful as an obstruc structure a adjudged by of the river could afterwards be legal navigation tion could be The court held that ized legalized, by Congress. to no more than it should which amounted declaring of be treated as with the thereafter interfering public river, so far as was under of that right' This is a from of Congress. thing different very protection structure, declare that a lawful when power asserting' erected, with the no way interfering structure, river, unlawful' without is an removable compensa admit to-the owner. I cannot there tion is-any under our I find no warrant government. power arbitrary Constitution; on the all the it in the contrary, guarantees instrument contains for the property security out of this its existence. Yet assertion a power negative structure, which without such sanction would be to legalizé the doc has an obstruction navigation, up deemed grown to authorize of an independent power trine over streams without per construction bridges States, and to control them when constructed. mission of with a illustration are furnished we striking In assumed expressions, loosely facility used, its existence. apparently recognizing or inadvertently ” word assent to the erection use From river, erected or the one declaring already a navigable structure, has been natural to the transition easy a lawful to author an affirmative assumption the action of construction ize, independently control them. From the authorities and to of such bridges, it is evident that reasons cited, Congress pos and the assigned, Case, Mr. In the Wheeling Bridge no such sesses power. said: delivered Nelson, who prevailing opinion Justice constructed an act been legis had The bridge ; and it was admitted that act of Virginia State lature of the erection, defendants conferred full regulation only subject McLean, Mr. Justice while dis- 480. How. commerce.” *21 Bridge Co. States. v. United Oct. 1881.] n a declare the asserted from power seating structure, had been adjudged by to be a lawful to; an obstruction naviga be a nuisance the court public author existence tion, any against emphasis spoke, course, and, of authorize to construct bridges, ity to have met views not construction, appear and his do their other, If,” he, “under judges. dissent with any make over navi bridges Congress may the commercial power, difficult find limitation of. waters, any it would gable railroads, canals might'on Turnpike-roads, such a power. if this be And a be built by Congress. principle same or interfered it be restricted cannot constitutional power, So extravagant absorbing State regulation. any ever, been claimed as this has rarely, Federal power would, State in a supersede govern one. It great degree, n it would tremendous patronage ments by Constitution, no be found in But if the power exercise. which it restricted. can be is practically perceived' by principle it not con us to conclusion This dilemma leads is stitutional #power.” also,

Such, has the uniform been doctrine Supreme several declared some States of whom Courts by judges, Thus, their were distinguished learning ability. justly Saratoga Co., Railroad People Rensselaer & York, Court New Chief Justice Supreme Savage,-in said: I think I opinion, delivering safely say erect exists somewhere to power bridges waters which are if the wants of them, navigable, society require provided such do injure bridges essentially navigation of the waters cross. Such did they power exist certainly in the State before the legislatures, .delegation power the Federal npt Federal Constitution. government pretended that such a has been delegated general govern ment, or is conveyed regulate comineree remains, then, in navigation; State legislatures, exist, it exists It does nowhere. because has not been sur rendered farther than surrender bemay qualifiedly, is, to erect implied; bridges over streams must considered so far surrendered as may be neces- Co. v. Uniteid *22 for a free those streams.” 15 sary Wend. navigation upon 113, 181. Y.) (N. authorities,

If is to be to these and to the weight given rest, on which the reasons must follow that they sovereignty waters, of the States over their navigable jurisdiction which were as absolute of the Constitution upon adoption roads, ; that are, as over their still'continue to except be they as the free so exercised not obstruct navigation —waters, far such be navigation may required of inter-state and commerce. And foreign prosecution by ” “ free is not meant a clear navigation of navigation entirely In sense in -obstructions. these terms are used by free, of a river is navigation when is European jurists, and not not embarrassed entirely interrupted, by oppressive duties exacted States. In riparian this the navi- country, free, of river deemed be it is when gation open kept of cleared such vessels obstructions would physical retard what is their beyond passage, required transit necessary stream, from-exactions and over'the other is exempt delays laws; than and health of enforcement quarantine such meet the occasional be of tolls as levied expenses may attendant The improving delays upon navigation. or enforcement of, property, transit persons in laws, the exaction of or exceptional and health quarantine to be inconsistent the free tolls, not deemed cases are sense of those terms. legal the river the. navigation width for the of sufficient Thus, passage draws bridges Rhine, like Europe, rivers vessels are allowed free. in this So, country, whose is declared character naviga- the free do not destroy bridges them, cause ferries, like tion, they may more than any though, v. Commissioners In Palmer more or less to vessels. delay the Circuit Court made Cuyahoga County, application Ohio, for pre- an States, injunction sitting Cuyahoga vent drawbridge construction River, obstruct 'the that it would on the ground the river its vicinity. plaintiff injure property ordinance article of the fourth was founded the. which declares Territory, the Northwestern respecting Oct. 1881.] Oo. United into St. Mississippi waters leading same, Lawrence, between shall be and the placés carrying free, as well to the inhabitants and forever common highways the citizens' of the United as to of said Territory, ' (cid:127) admitted other States into may those any tax, therefor.” without impost,' duty Confederacy, does court, provision injunction, refusing thé a State these navigableness impi-oving prevent obstructions, waters, dams and locks so removing of the water as to extend the line of nav- increasing depth ordinance construction does the Nor prohibit igation. river, consider on the State work may important be thrown intercourse. A dam over the to commercial *23 as to river, a' lock is sO constructed boats to permit provided with little or no and without A charge. delay, tempo- pass, lock, not be a could considered as delay, passing rary the ordinance.” And : an obstruction prohibited by again water is not an a obstruc- A across drawbridge with the not a work connected tion. this could be As naviga- river, toll, could be no it is tion supposed, charged , But would be boats. obstruction passage" only th^ draw; a and as such raise be work momentary, intercourse no a important general very community, of' the State to is entertained as make' the doubt bridge..” Case, was held to be

In an Wheeling Bridge bridge prevented unlawful because entirely obstruction passage court steam vessels ordeTed high chimneys; manner, be in a an it should elevated extent indi- that steamers; cated, or to afford free that passage some other should be adopted by day designated plan from obstruction. would relieve Upon navigation a.sug- to the be navigation that the obstruction avoided might gestión or in some other manner draw by making less than expensive convenient public by equally th.e referred an it, engineer; the matter wás elevating to make an allowed his attempt report the. another channel the obstruction improving obviate by ih the if.' a draw rjver constructing bridge .Some '' XV. VOL. Go. v. United States-. would draw, be caused and an

slight delay increased by dis- tance would have to be channel; run in the new passing the court did not consider these circumstances as constituting a material Lim., See also objectibn Const. plan. Cooley, 591-594, and authorities there cited. pp.

The considerations to which I have referred the authori- ties cited lead to a solution raised ready questions case at bar.

The construction aof over the River was au- Ohio bridge thorized The legislation Ohio. Kentucky legis- lation Kentucky, adopted provided bridge “ should be so constructed as not to obstruct the the Ohio-River further the laws of the United States .than Ohio, authorize.” The the same- legislation adopted year, authorized the construction of a either with a bridge single or draw",” with a as the span company (incorporated case, determine; but in either in order purpose) might bridge might river, obstruct the of said should built in accordance with the act of same .14,1862, or of act that thereafter Congress might pass July which, course, -meant on the before subject; to which the- erection built. only regulation States, was of .the was made such as had subject to the execu- been prescribed previously might prescribed the work. The was not surrendered to fur- tion of -The ther control disposition general government. laws of the two-States for the companies organized *24 authorized to consolidate them- construction of were bridge into one were consolidated under the selves They company. of the and name Cincinnati Company. Newport Bridge March,. 1869, a" resolution On 3d-of passed over erect a the' to bridge .consent giving this'company-to built from Ohio River Cincinnati to provided Newport, it.be than hun an four unbroken or continuous less span feet in the to the main channel dred clear pier pier, river, in in and all accordance other respects .with limitations of an act “An and. Act conditions .entitled to.estab 1862; lish and the reso certain post-roads,” approved July'14, lution declared that the when the manner bridge, completed Oct. v. United Co. 1881.] structure,” a and taken legal should be deemed specified, e mails of of the the transmission should a b post-road But Congress had clause: also this States.” the United case the assent hereby given, withdraw reserves time be shall at any substantially river navigation of.said free under the erected bridge obstructed and materially resolution, or to direct modifica said bridge.” tions alterations 14, 1862, erected The act of provided any-bridge July building it at company the option might, or same, as a pivot, either drawbridge constructed a. continuous or with other form of unbroken spans; draw* the elevation the' the width of the spans specified bridge. March, 1869,

In the construction commenced company met across the river which according plan, conditions of the States Con- imposed by legislation March, and the work was until when.it prosecuted gress, the actual cost then incurred about completed, being nearly cost, when $807,000. The at contract whole prices, completed $1,110,000. th'e been On would have about 3d March.of while was in 'the company prosecution year, be unlaw- work, an act that it would passed declaring other with the for the company proceed ful person alterations, without in- various making erection elevation, should be a wider and a which span “cluding higher to the for his War approval. submitted Secretary work, new suspended adopted company immediately .The War, his it submitted to the obtained ap-' Secretary plan, it. then with the proceeded completed proval, work, and the additional necessary changes already The done, caused an additional act of required $800,000. that, also of over provided expenditure be lawful should the event made changes, States, in bill in it to file a equity against Ohio, should Southern Circuit Court District determine, accord- whether the first, have jurisdiction had passage plans progressed ing act, had constructed so as been comply *25 Bridge [Sup. Ct. Co. United States. thereto; with the of law and, provisions second, relating of the if were, United liability there to the com- reason of the and if pany, by changes required; court should determine United States liable, "that were so and built, was so that then bridge court being should fur- ascertain and ther. determine the'' amount of the actual and cost and expenditures reasonably required incurred in thé making and changes its bridge ap- in excess of the cost of proaches, building to the approaches original plan. The court according was authorized therein required proceed .further final cases other equity. decree as in (cid:127) filed, bill was act the and it was present Under clearly that the act when was at the shown hearing passed been constructed all compliance had thereto; that relation far as of law in constructed provisions obstruct of the river, did not it been so had done completed not have would according held, below court and this court Yet sus- plan. original enormous that forced expenditures tains ruling, upon are in no States the United way responsible. the. effect,, that decides thus,’in This court streams is ; absolute crossing navigable structures all them at remove pleasure, it can without change the free of the streams, their effect upon regard to the owners. and without compensation the assent think that erection do not I to its character as at all essential lawful the bridge upon legislation That depended structure-. Kentucky of the Ohio, contingency interfer- the river. The free assent of Con- navigation-of ing stated, removed ground' only complaint already gress, with the as interfering public right structure naviga- under the protection Fed- so far as tion, could afterwards one No complain eral government. with, directions con- conformity specified, built nuisance, because the free interrupting navi- stituted public under the laws as-secured river gation its abatement. States obtain’ proceed ' v. Oo. *26 Oct.' 1881.] if constructed of with tbe assent it, Congress, build coupled work, in the whilst pro- the manner placed prescribed, of the reach legal of and when .cess erection beyond completed, not, It could or modification. abatement for its proceedings general be taken purposes by when public completed, in its form and struc- nor materially changed- government, erection, of compulsion ture in the whilst process itg owners. compensation of without legislation was com- declaration, made when nearly The legislative .it be unlawful without would its construction further pleted, -alterations, or which necessitated very costly a' change plan, a from owners of was abandonment of the taking an its absolute of their work as appropria- á effectually portion sense, a not, strict constitutional taking pri- tion. If uses, it was an enforced expenditure vate public property not materials required by of labor and company, by to its assent con- on which or the conditions work undertaken and materials labor had been and for such struction giyen; should, on justice, principle indemnify every government such an ex- decree A commanding legislative company. lettér, the constitu- if is within spirit, penditure one his inhibit which .depriving property tional provisions from, him without law, without due taking process is as the one inflicted wrong great way compensation. were to secure other. As the as in the provisions designed of bis their from the spoliation arbitrary property, individual evaded act could could special exact for readily purpose an of his or la- property expenditure protection money bor, neither exacted when acquired, was property the terms of its nor by acquisition. permitted was taken This view Court of Appeals Virginia, v. Slate Crenshaw River in 6thR and Company, reported There it was held that after a mill been estab .had olph. lished and a to a law erected dam according granting the use of the water for mill-owner grinding, subsequent burden him the of erect legislature, imposed his them in dam, locks ing r'pair, through keeping giving boats, them on' attendance as to admit passage failure, in a his vested to abate the dam as power, Co. v. nuisance, without full indemnification and equivalent thus done to vested

injury .his rights, Con- contrary State, stitution of void, as a taking private property for a use without public compensation.

There are other ways occu many taking than property which are pation within the appropriation, constitutional inhibition. If its use and beneficial are enjoyment prevented law, under the sanction of it is taken from him as effectually the title were though condemned. Such is the purport the decision in v. Green Pumpelly Bay Wall. (13 Company a decision which has much attracted attention 166), views of the redress afforded enlarged the constitutional *27 for to effected provision injuries under of property law, which and its permanently value. It materially impair there held that the of the water of a river in Wis backing consin dam law, authorized so as to overflow the land individual, an of thus him, its usefulness to was a destroying of the within the taking of the Constitution. property meaning Miller, Justice in court, Mr. the of the opinion delivering very “ it observed that would be a justly curious and unsatis very result, if in factory of construing constitutional provision law, understood to have been for always adopted protection and to the of the individual as the security rights against gov ernment, and which has received the commendation of jurists, statesmen, commentators, and as the of placing just principles the law on that subject the common beyond ordinary them, or to control shall be held that if change legislation from the absolute conversion of refrains real government it can its to the value public, uses destroy property- to an can inflict permanent irreparable injury entirely, — effect, extent, can, total destruction without in to subject because, sense narrowest making any compensation, word, it is not for the use. a construc taken Such public into restric tion provision would constitutional pervert citizen, as those stood tion upon rights rights law, of the it an au instead and make common government, invasion private pretext thority right had no in the warrant laws good, public practices our ancestors.”

Oct. Co. United 1881.] however, in order to necessary, govern charge ment with forced the expenditures upon company, rely Constitution, further than this pi’ovision show which should control the its government spirit general of individuals. There is a affecting property legislation laws, our and the laws of justice pervading principle general whoever free requires unlawfully .governments, an un another imposes upon necessity wrongfully or materials labor usual money pro expenditure shall of his fnake tection and preservation property, complete The principle expenditure.' applies fully indemnity ;(cid:127) to those acts of the individuals government suits, can be tribunals of the wherever brought country, can be enforced. Here waives government indemnity from suit which its character exemption sovereign gives, submits the of its of its tri question liability judgment bunals, thus a readiness the owners of admitting indemnify it has dealt disregarded pledge, unfairly with them premises.

The resolution its consent to the erection Congress giving form, character and the bridge specified or to withdraw the consent direct modifications and alterations- reserved exercised only the free of the river should at case time be sub- obstructed The reser- stantially bridge. is to be vation clause read as written thus: “But though *28 reserves to withdraw the assent right hereby direct the modifications and alterations given [or of said case the free of said river navigation shall at bridge] time be obstructed by any materially substantially to be- erected under the this bridge resolution.” of. The to withdraw the assent or to direct right alterations was thus made to the same depend upon and the res- contingency; to a amounts of the pledge government, olution neither should be unless the done contingency happened. said to the in substance thus: You constructing company are the States of empowered Ohio by Kentucky to build a River, dimensions,, over the Ohio of certain bridge height as not to obstruct constructed provided navigation .'be Bridge Co', v. United States. further of the than the of the river laws United States present authorize, in'accordance with the act 1862. July Now, is, we we consent the erection of the bridge, that, if constructed in the manner declare shall prescribed, not deemed an free obstruction to the navigation river; assent, but we reserve the to withdraw or to direct alterations to the if hereafter the free bridge, navigation should be river obstructed it.” by

The thus bound general government, through itself not to interfere with the construction of the nor With when on the completed, except contingency a material obstruction to the free proving river. Such had not occurred the act direct when contingency the alterations was it has never occurred. So the ing passed; show, in the case of this circum proofs independently stance, occurred, whether or not the had was not contingency a fact to be determined It was arbitrarily legislature. to be ascertained and after judicially upon proofs hearing like fact the establishment of disputed other parties, .doctrine, This as well as rights property depend; advanced in this is well illustrated other opinion, positions the case Commonwealth The New Proprietors of Bedford There the act Bridge, Gray (Mass.), chartering 339. authorized the stream building corporation draws, Massachusetts of a suitable two toll-bridge —wide, to be at feet one on were least the west side of thirty the river in channel and the on the east side other way, most suitable with such draws was there. A place built. act of the re A accordingly subsequent legislature maintain, to make lieu of one corporation quired draws, two of these a new draw of not less than feet in sixty —width, abutment of which-was eight westerly. feet further to the than the abutment eastward westerly draw. existing making proprietors, were indicted required, changes obstructing of the river under their act their justified bridge. They In their the court held incorporation. deciding. upon liability that the when original const incorporation, accepted, *29 5Q5 Oct. States* United Co. 1881.] State, the terms of and the ituted a contract between them by bound; were proprietors both the parties equally or not, without of the legislature, escape could consent the or assumed of the duties or evade obligations imposed any act; without under the nor could the them legislature, by impair or assent of the in affect orig proprietors, way or im charter new conditions inal terms by annexing duties in or inconsistent onerous their nature additional posing contract; construction of the a- reasonable by “ draws, were erect suitable terms the proprietors ” wide; be not than and were to less feet ques thirty .that is, suitable, that the draws- were tion whether made already not obstruct constructed or unreasonably unnecessarily river, a or question impede determined legislature absolutely by proprietors, “ between the Like all other matters when parties. disputed controversy public duty involving concerning private court, it is to settled in the adjudged rights,” where law tribunals- and fact are questions regular adjudi established cated on fixed and to the- principles, according best secure the forms and adminis usages adapted impartial The same doctrine is also well tration of illustrated justice.” Baltimore v. Connellsville the ease Pitts Mayor & Co., decided Court Circuit Railroad burg Mr. Justice Grier. charter the late Pitts States by Company, Bailroad corporation burg Connellsville viz.: If contained following provision, Pennsylvania, abuse time misuse or shall said company any- privi-' ' resume all' and herein granted, legislature singu leges to such hereby corporation.” lar granted rights privileges act, an clause the passed legislature revoking Under com-, privileges rights granted and resuming of a construction south as it authorized line so far pany, But the court held Connellsville. or eastwardly wardly was to be revoke exercised case that when only misuse abuse the fact should privileges, the corporation should be estab-' misuse, corporation, if denied an act proceedings; declaring lished competent of such fact was unconsti- establishment revocation without *30 Bridge v. Co. United C't. States. tutional. In its Mr. Justice giving opinion Grier said: “If in the act of incorporation retains legislature the absolute' and unconditional of revocation for or reason; no it if be so written bond, in the the. party On accepting franchise such conditions cannot if it be complain revoked; arbitrarily or if this contract be that the legislature the act may repeal whenever in its opinion has corporation misused or abused its then the contract privileges, constitutes the legislature arbiter and of the existence of that judge fact. But the case before us comes within another The contract category. does not an unconditional give to the legislature repudiate contract, its nor is the legislature constituted the tribunal of fact as to the adjudge question misuse or abuse.” 4 Am. Law n. s. Reg, 750.

A consciousness seems to have pervaded that it Congress its disregarding pledge when it company, directed the alterations proved before expensive, contin- mentioned had and that it happened; gency turn out might as would that not completed designed substantially obstruct the free river; materially navigation that, case, it would be justly chargeable com- mission an this For injury I company. reason, think we assume it intended that the court should award com- made, owners for the if, alterations pensation upon that, so far as the had been proof, appeared con- structed, when were they required, provisions law with; thereto had been complied and it relating substantially that, if should also appear completed originally designed, would,not have obstructed of the river.-'. did free Congress intend-that should.be its will expenditures imposed by heavy without the.same time were offering, they ille- exacted, to reimburse them. intended to gally conclusion, court, and I cannot resist the thai just, its decision, has defeated intentions. Bbadley. I dissent Mr. Justice from the 'of the judgment reasons;' case, will

court in state The central briefly my is, stood, reason when the nearly completed Co. v. 50T. Oct. 1881.] 1871, 121, e. it to or taken down of March directing áct structure, altered, lawful was a lawful passed, and, as their being appellants private property; possession such, could not I think constitutionally require demolition, reconstruction, without providing compensa- of its tion to the owners. virtue regulate By plenary States, as well as the’- several foreign commerce among the removal of all nations, require may undoubtedly rivers unlawful obstructions the navigable nuisances and to any’ persons the United without-giving compensation has' the bé also affected. who may incidentally rivers; au- of such making improve *31 of unlawful other than the removal thorizing improvements, obstructions, it cannot without take private comply- property clause of to the Constitu- with that the Fifth Amendment ing “ declares, be which taken Nor shall tion private property use without would This just compensation.” proposition public be where taken for- that consists of conceded property purpose lands, houses, or other structures on the buildings, standing river'; a true’ banks'of but I think that it is natural equally river, or are on the where a where erections made margin it, constructed in laws of is across accordance .bridge with the structures consent of Such the State Congress. are to the constitu- lawful and entitled private are property, nuisance, That which lawful not a is is tional protection. be as such without and cannot removed prostrated compen- sation. in if were should not have much

I it holding, difficulty. case, to the decision that such structures made necessary State, if with the not laws prohibited by in conformity navi- and not Congress, materially any interfering lawful, would be and entitled to protection equally gation, vast amount -of There of the Constitution. property ex-, wharves have in this The which been this sort country. mark, the flats covered shallow below low-water tended and tbe been bridges water which have many reclaimed^ streams, of this are nearly have been erected interfered with has been rarely class. materially Navigation interested works, the themselves in these States deeply being Co. United 'o. n it free from obstruction. preserving It would be strange could this destroy species' without property any whatever. compensation

But had not question the sanction of 'the only Ohio, States of which it was Kentucky intended to.connect, it but had also the sanction of an act of If Congress. the States sufficient to make rt a structure, lawful addition, made it so. I certainly cannot yield argument reservation in the resolution of 1869 made the the less lawful than would have if no such reservation liad been been made. After authorizing to be erected in the was, manner the resolution went on to that the said when say completed this resolution, manner shall be deemed and specified taken structure, and shall be a legal post-road trans- ” States; mission of then mails comes the to, as follows : reservation referred But reserves the the assent in case the withdraw free hereby given navi- at' of said river shall time be gation obstructed erected by any bridge under the resolution, or to direct the modifi- and alterations of cations bridge.'”- thus merely reserved declaratory it; had without have would there ds no reserving stipu- that it or condition exercised might lation without providing n *32 the for the compensation proprietors and inas- bridge; — structure, was, became a lawful much as the fact, — the declared resolution of expressly by cannot be that this reserved was-to be presumed exercised other than the constitutional mode. Hence, when the any down, the taken required constructed all, on a different if constructed we should plan, expect-what done,, we find was would be made in the provision same law for the to which the would ascertaining damages appellants alteration, the and for the thereof put by out of payment the United States. is true that the the treasury law the to which the matter tribunal was required referred to ascer- ” tain of" the be; there liability thus compensation qualifying provision by prelirni- Gapen. Ocfc.1881.] v. French n nary tbe This'inquiry liability. government's inquiry the -fact that to be made from directed doubts was probably some members of the minds of have existed in the referred did not reservation whether body legislative to make com- exonerate the United States obligation think, therefore, I In did not. opinion pensation. my favor, and in its was to a decree entitled appellant bill should be decree of Circuit Court dismissing reversed. Gapen.

French v.

Spears Gapen. touching legislation water-power of Indiana the State Wabash Canal, rights parties acquired certain Erie and the thereto under that Held, who, legislation, pursuant 1. considered.' That the contractor to his bid 510), 9,1842 p. performed work, [infra, the act of Jan. acquired, until (cid:127) therefor, property, right fully paid he should.be the rents of the water- available, power which-he rendered and the State became a trustee to collect [infra, p. pay 514) him. 2. That his contract them to the mill-owner .secured, rent, payment of without draw water to his mill from canal, long yielded surplus beyond required as the latter amount furnishing navigation and for the earlier leases. 3. That for. the title to the conveyed property, canal, the State board of trustees of the rights acquired where, 4. subject and secured. That to' a decree the, the board and the holder rendered in a suit whereto certificates of conveyance .provided for in the State to the par- stock trustees were ties, rights part attached of the canal to those sold and the fund, court, contractor_and into tile mill-owner can intervene brought respective rights, against either the fund pur- order tha't their chaser,’may ascertained determined. Appeals from the Circuit Court of the for; United States District of Indiana. he

The facts are stated in fully of the court. opinion The cases were Mr. argued John by’ Morris, Mr. Ralph Sill, and Mr. Samuel Shellaharger for the appellants, 'and Mr. Solomon 'Olaypool Mr. R. S. Taylor ap- pellees. /