Congress may, in order to enforce its enactments, clothe an
executive officer with power to ascertain whether certain specified
facts exist and thereupon to act in a prescribed manner, without
delegating, in a constitutional sense, legislative or judicial
power to such officer.
Under its paramount power to regulate commerce, Congress can
require navigable waters of the United States, although within a
state, to be freed from unreasonable obstructions, and it is not a
delegation of legislative or judicial power to charge the Secretary
of War with the duty of ascertaining, under a general rule
applicable to all navigable waters and upon notice to the parties
in interest, whether a particular bridge is an unreasonable
obstruction to navigation.
An act of Congress which invests the Secretary of War with power
to require the removal of obstructions to navigation after notice
to parties in interest and opportunity to be heard and reasonable
time to make alterations in the obstruction, as § 18 of the River
and Harbor Act of March 3, 1899, 30 Stat. 1151, does not invest the
Secretary with arbitrary power beyond constitutional
limitations.
To require, after notice and hearing, alterations to be made
within a reasonable time and in a bridge over such navigable waters
so as to prevent its being an obstruction to navigation is not a
taking of private property for public use which, under the
Constitution, must be preceded by compensation made or secured to
the owners of the bridge.
The erection of a bridge over such navigable waters within a
state by authority of the state is subject to the paramount
authority of Congress to regulate commerce among the states and its
right to remove unreasonable obstructions to navigation.
The mere silence of Congress and its failure to interfere to
prevent the construction under state authority of an obstruction to
navigation does not prevent it from subsequently requiring the
removal of the obstruction or impose upon the United States a
constitutional obligation to make compensation therefor.
Page 216 U. S. 178
It is for Congress, under the Constitution, to regulate the
right of navigation in navigable waters of the United States and to
declare what must be done to clear navigation from obstructions,
and where this has been done in the manner required by Congress, it
is not the province of the jury, on the trial of one refusing to
remove obstructions, to determine whether the removal was
necessary.
An act will not be declared unconstitutional merely because an
executive officer might, in another case, act arbitrarily or
recklessly under it. If such a case arises, the courts can protect
the rights of the government or persons which are based on
fundamental principles for the protection of rights of
property.
The facts are stated in the opinion.
Page 216 U. S. 185
MR. JUSTICE HARLAN delivered the opinion of the Court.
This is a criminal information by the United States under § 18
of the River and Harbor Act of March 3d 1899, against the
president, managers, and company of the Monongahela Bridge Company,
a Pennsylvania corporation.
That section is as follows:
"That whenever the Secretary of War shall have good reason to
believe that any railroad or
Page 216 U. S. 186
other bridge now constructed, or which may hereafter be
constructed, over any of the navigable water ways of the United
States is an unreasonable obstruction to the free navigation of
such waters on account of insufficient height, width of span, or
otherwise, or where there is difficulty in passing the draw opening
or the draw span of such bridge by rafts, steamboats, or other
water craft, it shall be the duty of the said Secretary, first
giving the parties reasonable opportunity to be heard, to give
notice to the persons or corporations owning or controlling such
bridge so to alter the same as to render navigation through or
under it reasonably free, easy, and unobstructed; and, in giving
such notice, he shall specify the changes recommended by the Chief
of Engineers, that are required to be made, and shall prescribe, in
each case, a reasonable time in which to make them. If at the end
of such time, the alteration has not been made, the Secretary of
War shall forthwith notify the United States district attorney for
the district in which such bridge is situated, to the end that the
criminal proceedings hereinafter mentioned may be taken. If the
persons, corporation, or association owning or controlling any
railroad or other bridge shall, after receiving notice to that
effect, as hereinbefore required, from the Secretary of War, and
within the time prescribed by him, willfully fail or refuse to
remove the same, or to comply with the lawful order of the
Secretary of War in the premises, such persons, corporation, or
association shall be deemed guilty of a misdemeanor, and, on
conviction thereof, shall be punished by a fine not exceeding five
thousand dollars, and every month such persons, corporation, or
association shall remain in default in respect to the removal or
alteration of such bridge shall be deemed a new offense, and
subject the persons, corporation, or association so offending to
the penalties above prescribed: Provided, That in any case arising
under the provisions of this section an appeal or writ of error may
be taken from the district courts or from the existing circuit
courts direct to the Supreme Court, either by the United States or
by the defendants."
30 Stat. 1121, 1153, c. 425.
Page 216 U. S. 187
The jury returned a verdict of guilty, and a motion in arrest of
judgment was made upon various grounds, the principal one being
that the section of the above Act of 1899 was unconstitutional,
null, and void. That motion was denied, and a motion for new trial
having been overruled, the defendant was adjudged to pay to the
United States a fine of $1,000 and the costs of prosecution. From
that judgment, the case comes directly to this Court under the
authority of the proviso in the above act. Section 18.
It is essential to a clear understanding of the questions raised
by the bridge company that we state certain facts disclosed by the
record.
The Bridge Company was incorporated under an act passed by the
General Assembly of Pennsylvania in 1830, and in 1833, by authority
of that commonwealth, it constructed the bridge in question over
the Monongahela River. The structure is known as the Brownsville
Bridge, between the towns of West Brownsville and Bridgeport. The
charter of the company provided, among other things, that "the
erection of said bridge shall not obstruct the navigation of said
river so as to endanger the passage of rafts, steamboats, or other
water craft." Penn.Laws, 1829-30, p. 105.
On the twenty-ninth of April, 1903, the Secretary of War, Mr.
Root, was petitioned by numerous companies and individuals to have
an investigation made of the bridge "as to its obstruction of
navigation," and if it was found to be an obstruction of that
character,
"to have the means provided to compel it to be raised or
equipped in such a way to relieve river people from the
obstruction, making the height necessary to allow free
navigation."
The petition proceeded:
"The coal in pools, one, two, three and four below Brownsville
has been practically exhausted, and the Pittsburgh district will at
no distant date, be forced to get its supply above Brownsville, in
the fifth pool. The petitioners recognize how impossible it will be
to build or improve lock No. 3 unless the elevation of the
Brownsville Bridge be made at once."
This petition was
Page 216 U. S. 188
referred by the Chief of Engineers to Major Sibert of the Corps
of Engineers, for investigation and report. The latter officer
reported, among other facts, that
". . . 4. The height of this bridge is such that the average of
the boats engaged in interstate commerce between the states
referred to above [Pennsylvania and West Virginia] are prevented
from passing under the bridge at a stage of water materially less
than that which floods the walls of the locks of the Monongahela
River. 5. A bridge that prevents the use of the locks owned by the
government of the United States until the same are placed out of
service by means of high water is, in the opinion of this office,
an unreasonable obstruction to navigation. . . . 7. This bridge is
an old, covered, wooden bridge, constructed some time between 1830
and 1840. 8. In the opinion of this office, this bridge is one that
certainly requires action under section 18, River and Harbor Act of
March 3, 1899. 9. It is therefore respectfully recommended that it
be proceeded against in the manner specified under the law referred
to above, both on account of insufficient height and length of
span, and that, in the notice for a hearing in the case of this
bridge, the changes proposed be such as to give a least clearance
52 feet under a channel span of 400 feet wide, the length of side
spans to be determined from the developments at the hearing. It is
considered that one and one-half years is a reasonable time in
which to make the necessary changes in this bridge."
The Chief of Engineers endorsed that report and recommended that
the papers be returned to Major Sibert, with instructions to hold a
public hearing, after due notice to interested parties, as required
by the law and the orders of the War Department.
Under date of May 23d 1904, Major Sibert made a report to the
Chief of Engineers, from which it appears that the parties
interested were given a hearing, all parties being present. That
report stated:
"3. These hearings, as this office understands it, were held for
the purpose of securing and forwarding such information as would
enable the Secretary of War to decide whether or not there is good
reason to believe that the
Page 216 U. S. 189
bridge in question is an unreasonable obstruction to navigation.
4. Stripped of all unnecessary verbiage, the question for
determination is: is there good reason to believe that a bridge
that prevents the better class of towboats actually navigating the
Monongahela River, the commerce of which stream is about 10,000,000
tons annually, from passing under it for 17.7 days per year, and
prevents the packets actually navigating said stream from passing
under it for 52.1 days per year, all as determined by the official
records kept by the United States, an unreasonable obstruction to
navigation? The above days are days that the boats in question
cannot pass under the bridge, but can pass through the locks that
the government of the United States has provided for their use.
Would a railroad company consider that there was good reason to
believe that its traffic was unreasonably obstructed by another
highway if its passenger and express business were absolutely
stopped for 52.1 days per year and its freight business so stopped
for 17.7 days per year, when the same could be overcome at a
reasonable cost to the obstructing highway, which latter highway
was the last built? . . . This office is of the opinion that the
following should constitute the grounds upon which a conclusion
should be reached as to whether or not any particular bridge
unreasonably obstructs navigation: 1st. Every bridge should be so
constructed as to permit the passage under it or through it, with
reasonable safety, of the average-sized boat actually navigating
the stream at all practical stages of water. 2d. Any bridge that
does not permit the passage of such boat at such stages of water
needlessly obstructs the use of the river highway, and exists under
conditions that are not reasonable, since it is impracticable to
raise or lower a stream, and it is always practicable to either
build a bridge high enough and of sufficient width of span to allow
the passage of such boats at such times as mentioned above, or to
place a draw in the bridge. 3d. Where the topographical conditions
are such that bridges can be made of such heights, without
prohibitive cost, as to permit at all navigable stages of
Page 216 U. S. 190
water, the passage of boats best suited to the river commerce,
it is for the best interest of both the land traffic and the river
traffic that bridges be so constructed. . . . Based upon the
foregoing, the essential features of which are the facts that
towboat navigation with the better class of boats actually in use
is prevented for 17.7 days of the year from passing under this
bridge when the same could pass through the locks Congress has
provided for such navigation, and that the packets actually
navigating this stream are prevented from passing under this bridge
at such time for 52.1 days in the year, and from the fact that
Congress has specified in the two acts passed in the present year
that a least clearance of 54 feet is needed for the navigation of
this pool, whereas the bridge in question has only 40.2 feet, this
office is of the opinion that there is good reason to believe that
the bridge owned by the Monongahela Bridge Company at Brownsville,
Pennsylvania, is an unreasonable obstruction to navigation, and
therefore respectfully recommends that the Monongahela Bridge
Company (George W. Lenhart, president, Brownsville, Pa.) be given
notice to make the following changes in its bridge crossing the
Monongahela River at Brownsville, Pennsylvania, on or before August
1, 1905, to-wit: that the bridge be so altered as to give a channel
span of not less than 390 feet in length between the face of the
right abutment, as now located, and the center of the pier, and
that the said channel span shall give a clearance height at the
left, or pier, end, of not less than 52 feet, and at the right, or
abutment, end of not less than 54 feet above the fourth pool of the
Monongahela River. This will permit of the construction of the
bridge in accordance with plan as shown in Sheet 3, Exhibit B,
submitted by the Bridge Company."
The Chief of Engineers concurred in the views expressed and
conclusions reached by Major Sibert, and recommended that notice be
served accordingly.
Subsequently, August 10th, 1904, the Secretary of War, Mr. Taft,
issued the following official notice, addressed to the Bridge
Company:
Page 216 U. S. 191
"Whereas the Secretary of War has good reason to believe that
the bridge of the Monongahela Bridge Company across the Monongahela
River at Bridge Street, in the Borough of Bridgeport, Pennsylvania,
and commonly known as the Brownsville Bridge, is an unreasonable
obstruction to the free navigation of the said Monongahela River
(which is one of the navigable water ways of the United States) on
account of insufficient height and length of span, and whereas, the
following alterations, which have been recommended by the Chief of
Engineers, are required to render navigation under it reasonably
free, easy, and unobstructed, to-wit: so alter said bridge as to
give a channel span of not less than 390 feet in length between the
face of the right abutment, as now located, and the center of the
pier, and that the said channel span shall give a clearance height
of not less than 52 feet above the fourth pool of the Monongahela
River, and whereas, to August 1, 1905, is a reasonable time in
which to alter the said bridge, as described above: now therefore
in obedience to, and by virtue of, section eighteen of an act of
Congress of the United States entitled, 'An Act Making
Appropriations for the Construction, Repair, and Preservation of
Certain Public Works on Rivers and Harbors, and for Other
Purposes,' approved March 3, 1899, I, William H. Taft, Secretary of
War, do hereby notify the said Monongahela Bridge Company to alter
the said bridge as described above, and prescribe that said
alterations shall be made and completed on or before August 1,
1905."
This notice was duly served August 15th, 1904, on the Bridge
Company, and the company failed to comply with the direction given
by the Secretary of War.
Thereupon the present information was filed, charging the Bridge
Company with having willfully failed, refused, and neglected to
comply with the above order of the Secretary of War.
In view of this statement, an extended examination of the
authorities would seem to be unnecessary, for substantially
Page 216 U. S. 192
all the material questions raised on this writ of error are, we
think, concluded by former decisions cited in the margin.
*
This Court has heretofore held, upon full consideration and
after an examination of the adjudged cases:
1. That the § 18 of the River and Harbor Act of March 3, 1899,
could not reasonably be taken as a delegation of legislative and
judicial power to an executive department of the government; that
the statute did not, in any real constitutional sense, delegate to
the Secretary of War any power that must, under our system of
government, be exclusively exercised either by the legislative or
judicial branch of the government; that, under its paramount power
to regulate commerce on and over the navigable waters of the United
States, Congress could require that such waters be freed from
unreasonable obstructions to navigation; that the statute in effect
prescribed the general rule, applicable to all navigable waters,
that free navigation should not be hampered by unreasonable
obstructions arising from bridges of insufficient height, width of
span, or other defects; that, instead of exerting its power by
direct legislation in each case of a bridge alleged to constitute
an unreasonable obstruction to navigation, Congress charged the
Secretary of War with the duty of ascertaining, in each case, upon
notice to the parties concerned, whether the particular
Page 216 U. S. 193
bridge came within the general rule prescribed; that any other
method was impracticable in view of the vast and varied interests
of the nation, requiring legislation from time to time; that the
Secretary of War, proceeding under the act of 1899, could not be
said to exercise strictly legislative or judicial power any more
than when, upon investigation, the head of a department ascertains,
under the direction of Congress, whether a particular applicant for
a pension belonged to a class of persons who, under a general rule
prescribed by Congress, were entitled to pensions, and that a
denial to Congress of authority, under the Constitution, to
delegate to an executive department or officer the power to
determine some fact or some state of things upon which the
enforcement of its enactment may depend, would often render it
impossible or impracticable to conduct the public business, and to
successfully carry on the operations of the government.
2. That the act of 1899 did not invest the Secretary of War with
arbitrary power in the premises, since, in reference to any bridge
alleged to constitute an unreasonable obstruction to navigation, he
was bound, before making any decision or taking final action, to
notify the parties interested of any proposed investigation by him,
give them an opportunity to be heard, and allow reasonable time to
make such alterations as he found to be necessary to free
navigation.
3. That to require alterations or changes in a particular bridge
within a specified time and after the parties have been heard was
not such a taking of private property for public use as must, under
the Constitution, be preceded by the making of or sufficiently
securing compensation to the owners of the bridge.
4. That, although the Brownsville Bridge was originally
constructed under the authority of the Commonwealth of
Pennsylvania, and may not, at the date of its erection, have been
an illegal structure or an unreasonable obstruction to navigation
in the condition at that time of commerce and navigation on the
Monongahela River, the bridge must be taken as having been
Page 216 U. S. 194
constructed with knowledge on the part of all of the paramount
power of Congress to regulate commerce among the states, and
subject to the condition or possibility that Congress might at some
time after its construction, and for the protection or benefit of
the public, exert its constitutional power to protect free
navigation as it then was against unreasonable obstructions; that
the mere silence of Congress, and its failure to directly interfere
and prevent the original construction of the bridge under the
authority of Pennsylvania imposed no constitutional obligation on
the United States to make compensation for subsequent changes or
alterations which the public good in its judgment, required to be
made.
The adjudged cases fully sustain the judgment of the court
below. We are asked to consider whether the opinion in
Union
Bridge Co. v. United States, 204 U. S. 364 --
the case upon which the government mainly relies -- should not be
modified. We perceive no reason for so doing. We adhere to what was
said in that case.
It is urgently insisted that the defendant did not have such a
hearing as it was entitled to have under the law on the question
whether the bridge was in fact an unreasonable obstruction to
navigation. This is a mistake. The Bridge Company had full notice
of the action of the Engineer officer, who, under the order of the
Secretary of War, made a tentative examination of the facts, and it
appeared at the regular, final hearing before that officer, with
liberty to contest the facts and introduce any evidence pertinent
to the case. It does not appear that it offered any evidence that
was rejected. It was not subjected to any mode of procedure that
interfered in any degree with a full and fair disclosure of the
material facts. The Engineer officer, after the hearing before him
-- the Bridge Company being represented at the hearing -- found
that the bridge was an unreasonable obstruction to navigation. He
reported to the Secretary of War all the facts that were adduced
before him, and which constituted the basis of his conclusion. And
the decision of the Secretary was based on
Page 216 U. S. 195
the facts so reported to him. That it must be assumed on this
record. It does not appear that the Secretary disregarded the
facts, or that he acted in an arbitrary manner, or that he pursued
any method not contemplated by Congress. It was not for the jury to
weigh the evidence and determine, according to their judgment, as
to what the necessities of navigation required, or whether the
bridge was an unreasonable obstruction. The jury might have
differed from the Secretary. That was immaterial, for Congress
intended by its legislation to give the same force and effect to
the decision of the Secretary of War that would have been accorded
to direct action by it on the subject. It is for Congress, under
the Constitution, to regulate the right of navigation by all
appropriate means, to declare what is necessary to be done in order
to free navigation from obstruction, and to prescribe the way in
which the question of obstruction shall be determined. Its action
in the premises cannot be revised or ignored by the courts or by
juries, except that, when it provides for an investigation of the
facts, upon notice and after hearing, before final action is taken,
the courts can see to it that executive officers conform their
action to the mode prescribed by Congress. Learned counsel for the
defendant suggests some extreme cases, showing how reckless and
arbitrary might be the action of executive officers proceeding
under an act of Congress the enforcement of which affects the
enjoyment or value of private property. It will be time enough to
deal with such cases as and when they arise. Suffice it to say that
the courts have rarely, if ever, felt themselves so restrained by
technical rules that they could not find some remedy, consistent
with the law, for acts, whether done by government or by individual
persons, that violated natural justice or were hostile to the
fundamental principles devised for the protection of the essential
rights of property.
We find no error of law in the record, and the judgment must be
affirmed.
It is so ordered.
MR. JUSTICE BREWER dissents.
*
Union Bridge Co. v. United States, 204
U. S. 369;
The Brig
Aurora, 7 Cranch 382;
Wayman v.
Southard, 10 Wheat. 1;
Field v. Clark,
143 U. S. 649;
C. W. &c. R. Co. v. Comm'rs, 1 Ohio St. 77;
Moers
v. City of Reading, 21 Pa. 188;
Locke's Appeal, 72
Pa. 491, 498;
Butterfield v. Stranahan, 192 U.
S. 470;
Gibbons v.
Ogden, 9 Wheat. 1;
Gibson v. United
States, 166 U. S. 269;
Scranton v. Wheeler, 179 U. S. 141;
N.O. Gas Light Co. v. Drainage Comm'n, 197 U.
S. 453;
C., B. & Q. R. Co. v. Drainage
Comm'rs, 200 U. S. 561;
West Chicago Street R. Co. v. Chicago, 201 U.
S. 506;
Dugan v. Bridge Co., 27 Pa. 303;
Cooke v. Boston & Lowell R. Corp., 133 Mass. 185;
Lake Erie & Western R. Co. v. Cluggish, 143 Ind. 347;
Lake Erie & Western R. Co. v. Smith, 61 F. 885;
Indiana v. Lake Erie & Western R. Co., 83 F. 284, 287;
St. Louis & Iron Mountain R. Co. v. Taylor,
210 U. S. 281;
Northern Pacific R. Co. v. Duluth, 208 U.
S. 583.