Section 18 of the Act of March 3, 1899, c. 425, 30 Stat. 1153,
authorizing the Secretary of War to require the removal of bridges
which are obstructions to navigation over navigable waterways of
the United States, is within the constitutional powers of Congress,
and was enacted to carry out the declared policy of the government
as to the free and unobstructed navigation of waters of the United
States over which Congress has paramount control in virtue of its
power to regulate commerce.
As the statute only imposes on the Secretary of War the duty of
attending to details necessary to carry out such declared policy,
it is not an unconstitutional delegation of legislative or judicial
power to an executive officer.
Requiring the alteration of a bridge which is an obstruction to
navigation is not a taking of property of the owners of such bridge
within the meaning of the Constitution.
Notice was duly served on all parties in interest and the
hearings given on the report of the Chief of Engineers by the
Secretary of War were in accord with the statute, and the owners of
the bridge the removal whereof was ordered cannot complain.
The head of an executive department of this government cannot
himself sign every official communication emanating from his
department, and a proper notice signed by the assistant secretary
has the same force as though signed by the secretary.
The notice of alterations required was sufficient in this case,
as it left no reasonable doubt as to what was to be done.
The fact that a bridge was erected over a navigable water of the
United States under authority of the Act of July 25, 1866, c. 246,
14 Stat. 244, does not prevent Congress from ordering its removal
when it becomes an obstruction, as the act expressly reserves the
right to alter or amend it so as to prevent obstructions to
navigation.
Union Bridge Co. v. United States,
204 U. S. 364.
Page 221 U. S. 195
The facts, which involve the construction of the provisions of
the Act of March 3, 1899, relating to the removal of obstructions
from navigable waters of the United States and the validity of
proceedings taken and orders made thereunder in Connection with
plaintiff in error's bridge over the Mississippi River at Hannibal,
Missouri, are stated in the opinion.
Page 221 U. S. 199
MR. JUSTICE HARLAN delivered the opinion of the Court.
This is a criminal information against the Hannibal Bridge
Company, the Wabash Railroad Company, and the Missouri Pacific
Railway Company, under the eighteenth section of the River and
Harbor Appropriation Act of Congress of March 3, 1899, 30 Stat.
1121, c. 425.
That section is as follows:
"Whenever the Secretary of War shall have good reason to believe
that any railroad or other bridge now constructed, or which may
hereafter be constructed, over any of the navigable water ways of
the United States is an unreasonable obstruction to the free
navigation of such waters on account of insufficient height, width
of span, or otherwise, or where there is difficulty in passing the
draw opening or the draw span of such
Page 221 U. S. 200
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."
Proceeding under the above statute, certain vessel owners,
masters, pilots, and others interested in the navigation of the
Mississippi River represented to the Secretary
Page 221 U. S. 201
of War by petition that the bridge over that river at Hannibal,
Missouri, had become and was an unreasonable obstruction to free
navigation by reason of the location of the then-existing draw
openings, the entire absence of guide fences or sheer booms, and
the presence of artificial deposits of stone about the piers of the
bridge, which they believed had increased the current through the
draw openings to a dangerous extent. The Secretary was asked by the
petitioners to exercise the powers granted to him by the above act,
and after due hearing of all interested persons or corporations,
require such alterations to be made in and about the bridge as
would render navigation through it reasonably free, easy, and
unobstructed.
The matter was referred by the War Department to an officer of
the Engineer Corps of the Army, for report. That officer, after
examination, reported that, from personal observation and
experience, especially during the great flood of June, 1903, he was
satisfied that the bridge was an unreasonable obstruction to
navigation by reason of the wrong location of the draw spans, the
absence of guard fences or sheer booms, and the deposit of riprap
in considerable quantities about the piers and abutments. The
report recommended certain changes in order that navigation through
the bridge might be reasonably safe, easy, and unobstructed. In
these recommendations the Chief of Engineers concurred. "The
character of this bridge as an unreasonable obstruction to
navigation is," the report stated,
"so generally understood, and has been so well established by
former hearings that further hearings would appear to be
superfluous, but, as the alteration of the structure so as to make
it reasonably safe for navigation will be expensive, and on that
account will probably be antagonized by its owners, I believe it
would be best to hold another hearing at which all parties in
interest may be heard, the said new hearing to take place as soon
as practicable. "
Page 221 U. S. 202
Subsequently, under date of March 10th, 1906, there was issued
by the War Department an official communication to the bridge
company, as follows:
"Take notice that, whereas, the Secretary of War has good reason
to believe that the drawbridge commonly known as the Wabash Railway
Bridge, owned or operated by the Hannibal Bridge Company (and by
the Wabash Railroad Company),
inter alia, across the
Mississippi River at Hannibal, Missouri, is an unreasonable
obstruction to the free navigation of the said Mississippi River
(which is one of the navigable water ways of the United States) on
account of unsuitable location of the draw spans and protection
crib, the lack of suitable guard fences or sheer booms, and the
presence of obstructing riprap around the piers, there being
difficulty in passing the draw openings or draw spans of such
bridge by rafts, steamboat, or other watercraft, and whereas, the
following alterations, which have been recommended by the Chief of
Engineers, are required to render navigation through it reasonably
free, easy, and unobstructed, to-wit: [here follow specifications
of proposed alterations]. . . And whereas, to March 15, 1907, 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 (30 Stat. 1153, c. 425),
the Secretary of War hereby notifies the said Hannibal Bridge
Company to alter the said bridge as described above, and prescribes
that said alterations shall be made and completed on or before
March 15, 1907."
Similar notices were given to the Wabash Railroad Company and
the Missouri Pacific Railway Company, respectively, each notice
being signed by "Robert Shaw Oliver, Asst. Secretary of War."
Page 221 U. S. 203
Such a hearing as that notice required was had at Rock Island,
Illinois, before an engineer officer designated by the War
Department, the parties interested having been previously notified
of the time, place, and object of the hearing. It appears also that
notice of the hearing was given through newspapers published at St.
Paul, St. Louis, and Hannibal. Among those present at the hearing
were numerous rivermen, masters, and pilots. The bridge company was
also present by counsel and participated in the investigation.
After the hearing was concluded, the engineer officer who presided
made a report to the Chief Engineer in which he said:
"The law and the orders of the Department have been fully
complied with; every opportunity has been given the representatives
of this bridge to present their full views; the bridge today is an
illegal structure; it is an unreasonable obstruction to the present
navigation of the Mississippi River; there is great difficulty in
passing its draw openings at high stages; the continuance of
existing conditions is liable at any moment to lead to an appalling
disaster and great loss of life; previous recommendations as to
alterations necessary in this bridge to render navigation through
it reasonably free, easy, and unobstructed are concurred in."
He further said that
"the bridge is an unreasonable obstruction, and that there is
difficulty in passing its draw, seems overwhelmingly shown by the
statements and affidavits of those competent to give opinions on
such a subject. The river pilots are almost unanimous in their
views regarding this bridge."
It should be here stated that, so far as the record shows, no
objection was made by the bridge company as to the manner in which
the hearing was conducted.
Subsequently, under date of March 10th, 1906, in an official
notice to the bridge company, signed by "Robert Shaw Oliver, Asst.
Secretary of War," the Secretary of War (Mr. Taft) expressed his
approval of the recommendations
Page 221 U. S. 204
of the Chief of Engineers, and directed the bridge company, on
or before March 15, 1907, to make the alterations suggested by that
officer. Later on, the bridge company requested a hearing before
the Secretary of War himself. The Secretary assented to another
hearing's being had, but said that it must be held before the Judge
Advocate General of the Army. After seasonable notice to the
parties interested in the navigation of the river, the latter
officer heard the case anew, and reported to the Secretary of War
that the case was covered by the Act of March 3, 1899, and that the
action theretofore taken by the War Department should be adhered
to. The Secretary of War formally approved the report of the Judge
Advocate General and directed the Chief of Engineers to "act
accordingly."
The bridge company failed or refused to make the required
alterations of the bridge. Then followed the information in
question, the Wabash Railroad Company and the Missouri Pacific
Railway Company being made co-defendants with the bridge company on
the ground that they owned or controlled the bridge.
There were two counts in the information, the first count,
charging the defendants with having willfully failed and refused to
make the above alterations in the bridge within the time prescribed
by the Secretary of War, and to comply with the order of that
officer, the second count charging the willful failure and refusal
of the defendants to make such alterations within one month after
the time allowed by the Department.
A demurrer to the information was overruled, and plea of not
guilty entered. The jury found the bridge company and the Wabash
Railroad Company each guilty, but, by direction of the court, it
returned a verdict of not guilty as to the Missouri Pacific Railway
Company. Judgment was rendered in favor of the United States
against the bridge company for $2,500 on each count of the
information.
Page 221 U. S. 205
A like judgment was rendered against the Wabash Railroad
Company.
The assignments of error are very numerous. But we feel
constrained to say that no one of them causes a serious doubt as to
the correctness of the judgment sought to be reviewed. The Court
has heretofore held, upon full consideration, that Congress had
full authority under the Constitution to enact § 18 of the Act of
March 3, 1899, and that the delegation to the Secretary of War of
the authority specified in that section was not a departure from
the established constitutional rule that forbids the delegation of
strictly legislative or judicial powers to an executive officer of
the government. All that the act did was to impose upon the
Secretary the duty of attending to such details as were necessary
in order to carry out the declared policy of the government as to
the free and unobstructed navigation of those waters of the United
States over which Congress, in virtue of its power to regulate
commerce, had paramount control. It is also firmly settled that
such alterations of bridges over the navigable waters of the United
States as the Chief of Engineers recommended, and as the Secretary
of War required to be made after notice and hearing the parties
interested, was not a taking of the property of the owners of such
bridges, within the meaning of the Constitution.
Union Bridge
Co. v. United States, 204 U. S. 364;
Monongahela Bridge Co. v. United States, 216 U.
S. 177;
Marshall Field & Co. v. Clark,
143 U. S. 649;
Buttfield v. Stranahan, 192 U. S. 470.
What the Secretary did in relation to the bridge here in
question seems to have been in substantial, if not in exact,
accordance with the statute. He was officially informed through the
Engineer Corps that the complaints that came to him from many
sources as to the Hannibal bridge were sufficient to require such
action on his part as the statute authorized. He ordered a hearing,
first causing notice to be given to the parties interested of the
time and
Page 221 U. S. 206
place of the hearing. We cannot doubt from the record that the
hearing was adequate and was fairly conducted. The result of the
hearing was a recommendation, concurred in by the Chief of
Engineers, that certain alterations of the bridge were demanded by
the public interests. There was a second hearing, with a like
result. Then the Secretary acted, and directed the making of such
alterations in the bridge as had been found to be necessary. Of the
character and extent of those alterations the bridge company was
notified by an official communication from the War Department. It
is true that that communication was signed by the Assistant
Secretary of War, and not by the Secretary himself. And that fact
is relied upon to invalidate the entire proceeding. There is no
merit in this objection. The communication signed by the Assistant
Secretary shows, upon its face, that it was from the War Department
and from the Secretary of War, and that the Secretary, without
abrogating his authority under the statute, only used the hand of
the Assistant Secretary in order to give the owners of the bridge
notice of what was required of them under the statute. It is
physically impossible for the head of an executive department to
sign, himself, every official communication that emanates from his
department.
Equally without merit is the objection that the nature and
character of the required alterations were not sufficiently
indicated. This is a mistake. The communication from the War
Department was full and adequate. The owners of the bridge could
have had no reasonable doubt as to what was expected and required
of them.
The defendants also insist that their bridge was constructed
under the authority of a special act of Congress of July 25, 1866
(14 Stat. 244, c. 246), and that its maintenance, as constructed,
is not affected by a subsequent general appropriation act like the
one of which the above § 18 forms a part. This view cannot be
sustained. The
Page 221 U. S. 207
Act of July 25, 1866, expressly reserves the right to alter or
amend it so as to prevent or remove all material obstructions to
the navigation of said river by the construction of bridges. In the
Union Bridge case, above cited, it appeared that the
bridge was required by the Secretary of War to be altered at the
expense of the owners. The point was made that, the bridge having
been originally erected under the authority of the State of
Pennsylvania, and without objection from the general government,
the power of the Secretary and of Congress did not go so far as the
government claimed. But this Court said:
"Although the bridge, when erected under the authority of a
Pennsylvania charter, may have a lawful structure, and although it
may not have been an unreasonable obstruction to commerce and
navigation as then carried on, it must be taken, under the cases
cited and upon principle, not only that the company, when exerting
the power conferred upon it by the state, did so with knowledge of
the paramount authority of Congress to regulate commerce among the
states, but that it erected the bridge subject to the possibility
that Congress might at some future time, when the public interest
demanded, exert its power by appropriate legislation to protect
navigation against unreasonable obstructions. Even if the bridge in
its original form was an unreasonable obstruction to navigation,
the mere failure of the United States at the time to intervene by
its officers or by legislation and prevent its erection could not
create an obligation on the part of the government to make
compensation to the company if at a subsequent time, and for public
reasons, Congress should forbid the maintenance of bridges that had
become unreasonable obstructions to navigation. It is for Congress
to determine when it will exert its power to regulate interstate
commerce. Its mere silence or inaction when individuals or
corporations, under the authority of a state, place unreasonable
obstructions in the waterways
Page 221 U. S. 208
of the United States, cannot have the effect to cast upon the
government an obligation not to exert its constitutional power to
regulate interstate commerce except subject to the condition that
compensation be made or secured to the individuals or corporation
who may be incidentally affected by the exercise of such power. The
principle for which the bridge company contends would seriously
impair the exercise of the beneficent power of the government to
secure the free and unobstructed navigation of the water ways of
the United States."
We have said enough to dispose of every essential question made
in the case, or which requires notice.
Judgment affirmed.