Although the judgment of the state court rests partly on grounds
of local or general law, and although the opinion may not expressly
refer to the Constitution of the United States, if by its necessary
operation the judgment rejects a claim based on a constitutional
right specially set up in the answer, that the relief prayed
cannot, in any view of the case, be granted consistently with the
contract or due process clauses of the Constitution, this Court has
jurisdiction to review under § 709, Rev.Stat.
In a navigable stream, the public right is paramount, and the
owner of the soil under the bed can only use it so far as
consistent with the public right, and a municipality through which
a navigable stream flows cannot grant a right to obstruct the
navigation thereof, nor bind itself to permit the continuance of an
obstruction, and this rule is not affected
Page 201 U. S. 507
by the fact that the person claiming a right to continue such an
obstruction is the owner in fee of the bed of the stream.
A municipal ordinance giving permission to a street railroad
company to construct a tunnel under a navigable stream, the law of
the state providing that railways shall not be constructed so as to
interrupt the navigation of any water in the state, does not amount
to a contract under the contract clause of the Constitution so that
the city could not subsequently require the company to lower the
tunnel so as not to interfere with the increased demands of
navigation; nor, in the absence of any provision to that effect,
would it be construed as containing an implied covenant that the
municipality would bear the expense of such alterations required by
subsequent ordinances.
A municipality is under the duty of protecting the unobstructed
navigation of navigable rivers under its jurisdiction, and it
cannot be exempted therefrom by making agreements in regard
thereto.
Courts may look through and behind mere forms, and interfere,
whenever necessary, for the protection of private rights against an
illegal, arbitrary exercise of governmental power.
The right of a railroad company to maintain a tunnel under a
navigable river is subject to the paramount public right of
navigation, and where it has been constructed under municipal
ordinance and state law that it shall not interrupt navigation, the
duty of not obstructing the navigation is a continuing one, and, if
the increased demands of navigation at any time require a deeper
channel than when the tunnel was originally constructed, it is
within the power of the municipality to compel the railroad
company, at the latter's own expense, to either remove the tunnel
or lower it to conform with the necessities of commerce, and, as in
this case, to the rule established by act of Congress, and such
action of the municipality is not unconstitutional, and does not
amount either to taking the property for public use without
compensation or depriving the company of its property without due
process of law.
C., B. & Q. R. Co. v. Drainage
Commission, 200 U. S. 251,
followed.
The facts are stated in the opinion.
Page 201 U. S. 513
MR. JUSTICE HARLAN delivered the opinion of the Court.
This case presents some questions of jurisdiction and
constitutionality arising out of the relative rights and duties of
the City of Chicago and the West Chicago Street Railroad
Company
Page 201 U. S. 514
in respect of a tunnel maintained by that company under the
south branch of Chicago River at or near Van Buren Street, in that
city.
The judgment in the Circuit Court of Cook County, Illinois, was
in favor of the railroad company, but it was reversed in the
Appellate Court, First District, the former court being directed to
give to the city the relief asked. Upon appeal to the Supreme Court
of Illinois, a judgment was rendered in favor of the city.
The contention of the company is that the judgment under review
cannot be sustained consistently either with the contract clause of
the Constitution of the United States or with the due process of
law enjoined by the Fourteenth Amendment.
The case presented by the record is substantially as will be now
stated.
On or about April 2, 1888, the City Council of Chicago adopted
in due form the following ordinance:
"Whereas, the board of directors of the West Chicago Street
Railroad Company, on the second day of April, 1888, by and at the
request of the Mayor of the City of Chicago, adopted the following
resolution: Resolved, That the West Chicago Street Railroad
Company, in consideration of the passage and approval by the Mayor
of the three ordinances passed by the City Council of Chicago on
the thirtieth day of March, 1888 -- one granting to the West
Division Railway Company the right to change its motive power from
horse to cable or electric power, one granting to the Chicago
Passenger Railway Company the right to make the same change, and
one granting to the West Chicago Street Railroad Company the right
to construct its tracks on Jefferson Street, between Madison and
Washington Streets, and to use horse, cable, or electric power
thereon -- hereby agrees, by and with the City of Chicago at its
own expense to construct a tunnel under the Chicago River, and
acquire the necessary right of way therefor on a route to be
located by said company between Madison and Twelfth Streets, with
the east terminus at Fifth Avenue or west thereof, and
Page 201 U. S. 515
the western terminus at Halsted Street or east thereof;
provided, however, that this company shall have the right from said
city to construct said tunnel under any intervening street or
streets and said river within said limits, but such location and
construction shall be such as not to interfere with the capacity,
usefulness, or grade of said streets; said tunnel to be used by
this company for street railroad tracks, and the construction
thereof shall be commenced within three years, and be completed
within four years, after the said City Council shall grant
permission to said railroad company to make said improvements,
unless prevented by injunctions or strikes, and the time said
construction is so interfered with shall be added to said four
years, all work to be done in a manner satisfactory to the
commissioner of public works, and the tracks through the tunnel
shall be connected with the street railroad tracks controlled by
this company. Now, therefore, be it ordained by the City Council
that the agreement in said resolution contained be and the same is
hereby accepted by and on behalf of the City of Chicago as a
consideration from said company for the passage and approval by the
Mayor of the ordinances in said resolution specified, and authority
is hereby granted said company to make the improvements therein
mentioned."
When this ordinance was passed, there was in force what is known
as the Horse and Dummy Act, passed in 1874, which provided:
"That any company which has been or shall be incorporated under
the general laws of this state, for the purpose of constructing,
maintaining, or operating any horse or dummy railroad or tramway,
may enter upon and appropriate any property necessary for the
construction, maintenance, and operation of its road, and all
necessary siding, side tracks, and appurtenances, and may, subject
to the provisions contained in this act, locate and construct its
road upon or over any street, alley, road, or highway, or across or
over any waters in this state,
in such manner as not to
unnecessarily obstruct the public use of such street, alley, road,
or highway, or
interrupt the navigation of such waters.
"
Page 201 U. S. 516
In
West Chicago Street R. Co. v. People, 214 Ill. 9,
19, the Supreme Court of Illinois, referring to this act, said:
"This act was an addition to the charter of any company
organized under the general incorporation act, and its provisions
have existed under some form ever since, conferring powers upon
street railroad companies organized as the defendant is. It gave
the defendant the right to construct its railroad either over or
across the Chicago River, which included the tunnel,
subject to
the condition contained in it. Defendant could only hold real
estate for the transaction of its business of maintaining and
operating a street railroad, and the statute fixed the conditions
under which it might use its real estate for building the
tunnel."
The tunnel was completed by the railroad company in March, 1894,
and has ever since been used and is now being used as a passageway
under the river for its cars. When constructed (as well as at the
present time), the water in the south branch of the Chicago River
over the tunnel, near Van Buren Street, varied in depth from
seventeen to eighteen and three-tenths feet.
On the third day of March, 1899, Congress passed a river and
harbor act among the provisions of which was one directing the
Secretary of War to cause surveys to be made and the cost of
improving certain rivers and harbors to be estimated and reported
to Congress, as follows:
"Improving Chicago River in Illinois: survey and estimate of
cost for a channel twenty-one feet deep from its mouth to the
stockyards, on the south branch, and to Belmont Avenue, on the
north branch, so far as may be permitted by existing docks and
wharves, exclusive of cost of removing or constructing bridges or
piers or lowering tunnels, and the aforesaid depth of twenty-one
feet is hereby adopted as the project depth for the improvement in
lieu of that fixed by the Act of June third, eighteen hundred and
ninety-six;
Provided, That all the work of removing and
reconstructing bridges and piers and lowering tunnels necessary to
permit a practicable channel with said depth to
Page 201 U. S. 517
be obtained shall be done, or caused to be done, by the City of
Chicago without expense to the United States."
30 Stat. 1121, 1156.
After the passage of that act, steps were taken to dredge the
Chicago River so as to deepen its channel in accordance with the
provisions of the act of Congress, and, it is alleged, such
work
"has been proceeding under the authority and supervision of the
government of the United States for the purpose of providing a
sufficiently deep channel for the uses and purposes of commerce and
navigation as aforesaid."
For the purpose of obeying the act of Congress, and in order to
obtain a free and unobstructed navigation of the Chicago River for
the benefit of commerce, interstate and domestic, the City Council
of Chicago, on the nineteenth day of March, 1900, duly passed the
following ordinance:
"
Whereas, by act of Congress of March 3, 1899, it is
provided that in the survey and estimate of cost for a channel
twenty-one feet deep, in the improvement of the Chicago River from
its mouth to the stockyards on the south branch, and to Belmont
Avenue on the north branch, the aforesaid depth of twenty-one feet
is adopted as the project depth for such improvement;
whereas, it is in said act further provided that all the
work of removing and reconstructing bridges and piers and lowering
tunnels necessary to permit a practicable channel with said depth
to be obtained shall be done or caused to be done by the City of
Chicago without expense to the United States;
whereas, the
tunnel under the south branch of the Chicago River at Van Buren
Street was constructed by the West Chicago Street Railroad Company
under a certain ordinance of the City of Chicago, passed April 2,
1888;
whereas, a channel in the Chicago River of the depth
of at least twenty-one feet, is now made necessary by the
requirements of navigation and by the increase in the draft of
vessels engaged in the shipping trade of the Lakes;
whereas, the said tunnel is an obstruction to said
proposed improvement to the Chicago River and to the navigation
thereof, and, as such obstruction, must be lowered so that there
may be above it in
Page 201 U. S. 518
said river a depth of at least twenty-one feet of water, or be
removed altogether:
Now therefore be it ordained by the City
Council of the City of Chicago: That the West Chicago Street
Railroad Company be and it is hereby ordered and directed within
three months after the date of the passage of this ordinance, at
the sole cost and expense of said West Chicago Street Railroad
Company and without cost, damage, loss, or expense of any kind
whatsoever to the City of Chicago, to proceed to lower the tunnel
under the south branch of the Chicago River at or near Van Buren
Street, being the same tunnel heretofore constructed by the said
West Chicago Street Railroad Company under an agreement dated April
2, 1888, between the said West Chicago Street Railroad Company and
the City of Chicago, and an ordinance passed by the City Council of
the City of Chicago, April 2, 1888, authorizing the construction of
said tunnel in accordance with the provisions of said agreement, so
as to provide for a clear depth above said tunnel of at least
twenty-one feet of water at all times. Said work shall be performed
by the said West Chicago Street Railroad Company under the
supervision and direction, and subject to the approval, of the
Commissioner of Public Works of the City of Chicago, and shall be
completed on or before March 1, 1901."
In execution of the provisions of that ordinance, the city
caused notice to be given to the railroad company demanding
compliance with its provisions. The company did not heed that
notice.
The present action was thereupon instituted by the people of
Illinois, on the relation of the City of Chicago, against the
railroad company. The specific relief asked was the issuing of a
writ of mandamus directing the railroad company, without cost,
damage, loss, or expense of any kind whatsoever to the city, to
proceed to lower its tunnel under the south branch of the Chicago
River at or near Van Buren Street so as to provide for a clear
depth above it of at least twenty-one feet of water at all times,
for its entire width and length, or to wholly remove it
"so that the same shall cease to be an obstruction to the
free
Page 201 U. S. 519
navigation of said Chicago River or the south branch thereof,
and to perform said work under the supervision and direction of the
Commissioner of Public Works of the City of Chicago."
The circuit court found the issues for the defendant, and denied
the application for a mandamus. Upon error to the Appellate Court,
First District, the judgment of the circuit court was reversed and
the cause remanded with directions
"to issue a writ of mandamus commanding the railroad company to
remove its tunnel, said writ not to be executed until the
Washington Street and La Salle Street tunnels are both removed or
lowered to a sufficient depth to be no longer an obstruction to
navigation."
Upon appeal to the Supreme Court of Illinois, a final judgment
was there entered awarding a peremptory writ of mandamus as prayed
for in the petition. 214 Ill. 9.
As explanatory of the reference to the tunnels on Washington and
La Salle Streets, it may be here stated that those tunnels belonged
to the city, and were located between the tunnel at Van Buren
Street, owned by the railroad company, and the mouth of the river
at the lake. Of course, until the city's tunnels are lowered or
removed, the lowering or removal of the tunnel on Van Buren Street
would not be of material aid to navigation.
We come now to consider the questions arising on the record and
discussed at the bar.
1. The contention of the city that the writ of error should be
dismissed for want of jurisdiction in this Court cannot be
sustained. It is true that the judgment of the state court rests
partly upon grounds of local or general law. But, by its necessary
operation, although the opinion of the state court does not
expressly refer to the Constitution of the United States, the
judgment rejects the claim of the company, specially set up in its
answer, that the relief asked by the city cannot, in any view of
the case, be granted consistently either with the contract clause
of the Constitution or with the clause prohibiting
Page 201 U. S. 520
the state from depriving anyone of his property without due
process of law. If that position be well taken, then a judgment
based merely upon grounds of local or general law would be error,
for the federal questions raised cover the whole case, and are of
such a nature that the rights of the parties could not be finally
determined without deciding them. As the judgment, by its necessary
operation, denied the company's claims based on the Constitution of
the United States, this Court has jurisdiction to inquire whether
those claims are sustained by that instrument. Our views on this
question are fully stated in
Chicago, Burlington & Quincy
R. Co. v. Drainage Commissioners, 200 U.
S. 561.
2. Great stress is placed by the railroad company on the fact
that it is the owner in fee of the bed of the river at the point
where the tunnel was constructed. But that fact is not vital in the
present discussion, for it was adjudged by the state court, in
harmony with settled doctrines, as will presently appear, that "the
title to land under a navigable river is not the same as the title
to the shore land;" that
"in a navigable stream, the public right is paramount, and the
owner of the soil under the bed of such a stream can only use and
enjoy it insofar as is consistent with the public right, which must
be free and unobstructed;"
that
"the title to the upland is absolute and paramount, while the
title to the lands over which the navigable water flows is
subordinate to the public right of navigation;"
and that
"the city could not, if it would, grant the right to obstruct
the navigation of the river, or bind itself to permit anything
which has become an obstruction to be continued."
214 Ill. 9, 20-21.
3. We next consider the first of the strictly federal questions
raised by the company. Its contention is that the tunnel was
constructed under a valid contract with the city, evidenced by the
ordinance of 1888, and that the mere order to remove or lower the
tunnel impaired the obligation of that contract in violation of the
Constitution.
Upon a careful scrutiny of the ordinance of 1888, we find no
Page 201 U. S. 521
clause or provision which so restricted the power of the city
that it could not require the railroad company to lower or remove
the tunnel when the public interests, as involved in the
unobstructed navigation of Chicago River, demanded that to be done.
The railroad company, in consideration of certain rights and
privileges granted to it by the city, undertook to construct the
tunnel, and it is true that, when constructed, the tunnel did not
interfere with navigation; nor would it now obstruct navigation, if
only boats and vessels of the size and capacity in use when the
tunnel was constructed were engaged in commerce on the river. But
such boats and vessels are insufficient to meet the present needs
of commerce at Chicago. The business of that city has enormously
increased since the passage of the ordinance of 1888, and,
admittedly the tunnel is now an obstruction to free navigation on
the river by boats and vessels of large size. The railroad company
may have believed when the ordinance of 1888 was passed that the
tunnel would never interrupt or obstruct navigation. Nevertheless
the ordinance did not expressly or by necessary implication bind
the city to forbear the exercise of any power it had to deepen the
channel of the river and thereby improve navigation. As the city
could not legally adopt an ordinance inconsistent with a statute of
the state, we must read into the ordinance of 1888 that part of the
act of 1874 which, as construed by the Supreme Court of Illinois,
made it a condition of the right of a street railroad company to
cross its cars through a tunnel under Chicago River that its road
and tunnel should be so located and constructed as not
unnecessarily to interrupt navigation. Apart from any question as
to the power of the city to bargain away or surrender its authority
to improve navigation and protect it against obstruction, the
railroad company must be held to have accepted the ordinance and
constructed the tunnel subject to the requirement that navigation
should not be interrupted by it. As the present tunnel is an
obstruction to the use of the river by many boats and vessels
employed in commerce on the Lakes, and as, by the ordinance
Page 201 U. S. 522
in question, the city did not stipulate -- even if it could
lawfully have stipulated -- that it would not exert whatever powers
it had in order to protect the free navigation of Chicago River
whenever it became necessary or proper to do so, the result must be
that the execution of the order to lower or remove the tunnel would
not impair the obligation of any contract protected by the
Constitution of the United States. If, in the ordinance of 1888,
the city had stipulated that it would meet the expense of any
alteration of the tunnel made by its direction, a different
question would have been presented. But the ordinance cannot be
construed as containing such a stipulation, and, consistently with
the settled doctrines of this Court, no such stipulation can arise
from mere implication. There is in our judgment no ground whatever
for holding that the city, by the ordinance of 1888, came under the
obligation of a contract to meet the cost of any changes in the
tunnel that might be lawfully required in order that the river
could be safely navigated by large vessels.
4. This brings us to the principal question in the case:
whether, consistently with the Constitution of the United States,
the railroad company can be required to lower or remove the tunnel
in question and (if it continues to use a tunnel in crossing
Chicago River with its cars) to construct and maintain at its own
expense, such a tunnel as will conform to the provisions of the
ordinance of March 19, 1900.
It is indisputable on this record that the depth of water over
the present tunnel is not sufficient to accommodate many boats and
vessels now commonly employed in commerce between Chicago and other
cities and towns on the Lakes. It is to be taken also as
indisputable that, in order that such boats and vessels may
navigate the south branch of Chicago River with safety the depth of
water over the Van Buren Street tunnel must be at least as great as
that specified in the city ordinance of 1900. We assume also -- as
by the record we may properly do -- that the ordinance is a
reasonable, not an arbitrary, exertion of the power conferred on
the city "to construct and keep
Page 201 U. S. 523
in repair bridges, viaducts, and tunnels, and to regulate the
use thereof," and "to deepen, widen, dock, cover, wall, alter, and
change the channel of the water courses." We must, in addition,
upon this record, assume that the means adopted by the city have a
direct, real, and substantial connection with the public object
intended to be accomplished -- namely, to free the navigation of
the south branch of Chicago River from an obstruction which
prevents the use of that river by vessels of the size demanded by
the vast business transacted at Chicago.
As already observed, the contention of the company is, in
effect, that, even if the present tunnel be an obstruction to the
navigation of the river by large vessels, the lowering or removal
of the tunnel, against the company's will, would be a taking of
private property for public use without compensation, in violation
of the constitutional guaranty of due process of law.
This result, it is supposed by the railroad company, necessarily
follows from the fact that the present tunnel was constructed with
the assent of the city, and, when constructed, was sufficient for
purposes of navigation by vessels, of whatever size then engaged in
commerce on the Chicago River. But these facts are not all that
must be considered in this discussion. They cannot be considered
apart from other matters of a vital character -- namely, that the
city was under the duty of protecting the free navigation of the
river and its branches -- a duty from the discharge of which it
could not be exempted by any agreement it might make with the
railroad company; that the city granted the right to construct the
present tunnel under the river subject to the condition,
necessarily implied by the statute of 1874, in force when the
ordinance of 1888 was adopted, that the tunnel should not interrupt
navigation; that, if the assent of the company to such a condition
was important, it must be held to have given such assent by
accepting the ordinance of 1888, into which, as already indicated,
must be read the requirement in the statute of 1874 that navigation
should not be unnecessarily interrupted, and that the provision
in
Page 201 U. S. 524
that statute forbidding any interruption of the navigation of
the river had reference to the needs of navigation not only at the
time the tunnel was constructed, but its needs at any subsequent
period, as found and declared by the city, upon reasonable grounds,
which declaration would, of course, be subject to the condition,
vital in our system of government, that the courts may look through
and behind mere forms, and interfere whenever necessary for the
protection of private rights against an illegal, arbitrary exercise
of governmental power.
In addition to these considerations, we may suggest the
important one that the rights of the company, as the owner of the
fee of land on either side of the river or in its bed, were subject
to the paramount right of navigation over the waters of the river.
Weber v. Harbor
Commissioners, 18 Wall. 57,
85 U. S. 66;
Illinois Central R. Co. v. Illinois, 146 U.
S. 387,
146 U. S. 458;
Shively v. Bowlby, 152 U. S. 30;
Gibson v. United States, 166 U. S. 269,
166 U. S. 276;
Scranton v. Wheeler, 179 U. S. 163;
C., B. & Q. Ry. Co. v. People, 212 Ill. 103;
Braxon v. Bressler, 64 Ill. 488;
People v.
Vanderbilt, 28 N.Y. 396;
Sage v. New York, 154 N.Y.
61;
State v. Parrott, 71 N.C. 311;
State v.
Dibble, 49 N.C. 107;
Diedrich v. Northwestern &c. Ry.
Co., 42 Wis. 248;
Parmeter v. Gibbs, 10 Price 412;
Williams v. Wilcox, 8 Ad. & El. 314;
Colchester v.
Brooke, 7 Q.B. 339. The principle is thus declared by a
leading text writer:
"The privilege of navigation upon all waters which are capable
of such use in their natural condition, and are accessible without
trespassing upon private lands, is a common and paramount right. .
. . At common law, the right of navigating a public stream is
paramount to the right of passage across the stream by means of a
bridge."
Gould on Waters §§ 86, 88.
If, then, the right of the railroad company to have and maintain
a tunnel under the Chicago River is subject to the paramount public
right of navigation; if its right to maintain a tunnel in the river
is a qualified one, because subject to the specific condition in
the act of 1874 that no tunnel should interrupt navigation; if the
present tunnel is an obstruction to
Page 201 U. S. 525
navigation, as, upon this record, we must take it to be, and if
the city, as representing the state and public, may rightfully
insist that such obstruction shall not longer remain in the way of
free navigation -- it necessarily follows that the railway company
is under a duty to comply with the demand made upon it to remove at
its own expense the obstruction which itself has created and
maintained. If the obstruction cannot be removed except by lowering
the tunnel to the required depth and (if a tunnel is to be
maintained) providing one that will not interrupt navigation, then
the cost attendant upon such work must be met by the company. The
city asks nothing more than that the railroad company shall do what
is necessary to free navigation from an obstruction for which it is
responsible, and (if it intends not to abandon its right to
maintain a tunnel at or near Van Buren Street) that it shall itself
provide a new tunnel with the necessary depth of water above it.
The case differs somewhat from
Chicago, Burlington & Quincy
Ry. Co. v. Drainage Commissioners, 200 U.
S. 561. In that case, we held it to be the duty of the
railway company, at its own cost, to remove the bridge, culvert,
timbers, and stones which it placed in Rob Roy Creek, and which
prevented the execution of the plan devised by the drainage
commissioners. But the commissioners demanded that more be done,
for their plan contemplated that earth outside of the railroad
bridge and culvert be removed in order that the channel be
enlarged, widened, and deepened. But in that improvement the
railway company had no interest. It was not responsible for the
inadequacy of the original channel of Rob Roy Creek for the system
of drainage adopted by the commissioners. Its only duty, and the
only burden imposed upon it, was to remove at its own cost the
obstructions placed by it in the creek, and which stood in the way
of the proposed system of drainage. In the case before us, the
public demands nothing to be done by the railroad company except to
remove the obstruction which itself placed and maintains in the
river under the condition that navigation should not at any time be
thereby interrupted.
Page 201 U. S. 526
The removal of such obstruction is all that is needed to protect
navigation. So that whatever cost attends the removal of the
obstruction must be borne by the railroad company. The condition
under which the company placed its tunnel in the river being met by
the company, the public has no further demands upon it. This cannot
be deemed a taking of private property for public use or a denial
of the equal protection of laws within the meaning of the
Constitution, but is only the result of the lawful exercise of a
governmental power for the common good. This appears from the
authorities cited in
Chicago, Burlington & Quincy R. Co. v.
Drainage Commissioners, supra. *
The state court has well said that to maintain the navigable
character of the stream in a lawful way is not, within the meaning
of the law, the taking of private property or any property right of
the owner of the soil under the river, such ownership being subject
to the right of free and unobstructed navigation.
People v.
West Chicago Street R. Co., 203 Ill. 551, 557. What the city
asks, and all that it asks, is that the railroad company be
required, in the exercise of its rights and in the use of its
property, to respect the public needs as declared by competent
authority, upon reasonable grounds, to exist. This is not an
arbitrary or unreasonable demand. It does not in any legal sense
take or appropriate the company's property for the public benefit,
but only insists that the company shall not use its property so as
to interrupt navigation.
Further discussion of the general question will be found in
Page 201 U. S. 527
Chicago, Burlington & Quincy R. Co. v. Drainage
Commissioners, supra. We need not repeat all said in the
opinion in that case on this question.
Another matter requires notice. The railroad company contends
that the city had no power to require or authorize any changes in
the bed of the river without the approval of the Secretary of War.
River and Harbor Act of 1899, § 10, 30 Stat. 1151. The same act
contains directions for the improvement of Chicago River.
Construing all the provisions together, we think it clear that,
when Congress declared in the River and Harbor Act of 1899, under
the heading of "Improving Chicago River in Illinois" (p. 1156),
that "all the work of removing and reconstructing bridges and piers
and lowering tunnels necessary to permit a practicable channel"
with the prescribed "project" depth of twenty-one feet in Chicago
River should be done by the city, without expense to the United
States, it meant to give the assent of the United States to any
work done by the city towards accomplishing the end which the
government had in view. The state court properly said that
"the city has power, under its charter, to deepen the channel,
and as a preliminary to doing so, to require this tunnel to be
lowered or removed, and the act of Congress permits it to proceed,
so far as the lowering of the tunnel is concerned."
As showing that the action taken by the City of Chicago is in
accordance with the will of Congress, we may refer to the Act of
Congress of April 27, 1904, relating to certain tunnels under
Chicago River, including the particular tunnel here in question.
That act provides:
"That the tunnels under the Chicago River, in the State of
Illinois at La Salle street, Washington street, and near Van Buren
Street, in the City of Chicago, in said State of Illinois, are, and
each of them is, hereby declared to be, as now constructed, an
unreasonable obstruction to the free navigation of said Chicago
River, and each of said tunnels is hereby declared to be a public
nuisance. And it shall be the duty of the Secretary of War to give
notice to the persons or corporations owning or controlling said
tunnels, or any of them, so to
Page 201 U. S. 528
alter the same as to render navigation over said tunnels free,
easy, and unobstructed, and in giving such notice he shall specify
the changes recommended by the chief of engineers that are needed
to be made in order that said tunnels, or any of them, shall not
thereafter be an obstruction to navigation, and shall prescribe in
each case a reasonable time in which to make said changes. If at
the expiration of such time such changes have not been made, the
Secretary of War shall forthwith notify the United States District
Attorney for the Northern District of Illinois, in which said
tunnels are situated, to the end that the criminal proceedings
hereinafter prescribed may be taken. If the person or persons,
corporation or corporations owning or controlling any of the said
tunnels shall, after receiving notice to that effect, as
hereinbefore required, from the Secretary of War, and within the
time prescribed by him fail or refuse to remove the same or to make
the changes specified in the notice of the Secretary of War, such
person or persons, corporation or corporations shall be deemed
guilty of a misdemeanor, and on conviction thereof shall be
punished by a fine not exceeding ten thousand dollars, and each and
every month such person or persons, corporation or corporations
shall remain in default in respect to the removal or alteration of
such tunnel shall be deemed a new offense and subject the person or
persons, corporation or corporations so offending to the penalty
herein prescribed:
Provided, That in any case arising
under the provisions of this act an appeal or writ of error may be
taken from the district court or from the circuit court direct to
the Supreme Court either by the United States or by the
defendants."
33 Stat. 314. For some reason not explained in the record, no
allusion was made to this act in the opinion of the Supreme Court
of Illinois, nor is it alluded to in the briefs of counsel. That
act, it seems to the Court, emphasizes and strengthens the views
expressed in this opinion and tends to support the conclusions
reached.
MR. JUSTICE HOLMES concurs in the judgment, upon the authority
of
Chicago, Burlington & Quincy R. Co. v. Drainage
Commissioners.
For the reasons we have stated, and in conformity with the
principles announced in
Chicago, Burlington & Quincy
R.
Page 201 U. S. 529
Co. v. Drainage Commissioners, the judgment of the
Supreme Court must be affirmed.
It is so ordered.
THE CHIEF JUSTICE, MR. JUSTICE BREWER, MR. JUSTICE WHITE, and
MR. JUSTICE McKENNA dissent.
*
Transportation Co. v. Chicago, 99 U. S.
635,
99 U. S. 642;
Mugler v. Kansas, 123 U. S. 623,
123 U. S. 669;
New York & N.E. Railroad Co. v. Bristol, 151 U.
S. 556,
151 U. S. 561;
Chicago, Burlington & Quincy R. Co. v. Chicago,
166 U. S. 226,
166 U. S. 252;
Gibson v. United States, 166 U. S. 269,
166 U. S. 271,
166 U. S. 276;
Scranton v. Wheeler, 179 U. S. 141,
179 U. S. 164;
New Orleans Gas Light Co. v. Drainage Commission,
197 U. S. 453;
Mills v. United States, 46 F. 738;
United States v.
Lynah, 188 U. S. 445;
Bedford v. United States, 192 U.
S. 217;
Ohio & Miss. R. Co. v. McClelland,
25 Ill. 140, 144;
Kankakee & Seneca R. Co. v. Horan,
131 Ill. 288;
Carthage v. Frederick, 122 N.Y. 268;
Sedgwick's Const. & Stat. Law 313, 320.