, ' Edward Mitchell, U. S. Atty., and Hrmry"O. Platt; Asst. U. S. Atty., for 'collector. . , " ,/
LAcoMBE,CireuitJudge, (orall'/l') In this case the board of general appraisers affirmed the ,decisioll of the collector. Thiseaurt affirms their decision. .
())!.atIrlct oowrt, L '.
KEOXUK&H. BRIDGE Co.
D., . February 7,
A bridge ha\'ing' been bUilt aud maintaine<Hn acoordl¥l1ce With 'the requirements of an ajlt 9f,cpngresl, lecI:etaryof 'Wllol:.oanno4; ,it all, obstruction to igationl.lI.nd require it to be changed,. ,remoc}e1ed, 0,1,' rebuilt1 under the act ot con· 1'1, 1ll88, U. S: Stiat p. " h e ahllill have that is a,n, to free nadga.. tion, or wheJ;e there in passing the draw"opening or. raft-span," thesllO. 'retary of 'war shall give! notice ieqUiringthe bridge"tO' lie' altered, so as'to render 'DBviJtationthrO!lgh orUll-4er it free, 68/ty, and,unobstru4:lted,-anil that 1;Jleowner of any such bridge shall beli,able to fOr willfullY-failing to remove. the bridge, oJ' to cause the Dellellsary altet&tlODB to be made.··, .' " lU1l,vaUd ,in anyoalle, notiCe the ,.l. secretaJ;Yof war must 'POIDt out whatai1terations are required to be made;' and a . ,',notiCEi i500illlufticieut walch requires: theiOwners' " to BO alter Baid bridge as torender; it free, el;\llY. and unobst,ructed, n t.he .notie.e contain's a'reCital that "tl111 bridge obstruction to. ftee navigatlon by reason of. itBlocation, which ,at stages ofwaterpel'lIlittiug naiigatioDoverthe Des Moines west draw rest
8. BTATUTEB-R1IPBAL-RJiL1h\8B OJ' PBNllTllls.
L'SAMB-NOTJOBOP, ALTIIlBATIONS REQum!IlD::. ,.'
By the eXPress provisi!ol!( ,of Rev. 1St. U,S. SIS,. repeal ofa .statute doeanot release any penalty, or unless the repe8llng act so provides. ' , . ' ':",'" '! .e,',.,:··· ',.', '.":
At Law. Action peM:lties uilder l:ir6visions ofilections9 and 10 of the act of of August!l, 1888. On topetiYoh.:· " , , ,.. : Lewi.." S.Dist. Atty., for :elaintift . . ". . ' . ' H. H.Tritnble, W. J; and lamesa.' Davis, for defendant'.
! ! ;
"Sec. 9.', That the secretary Of war shall have good reason to believe that' any' railroad; 'Or 'Other 'DOW constructed. or ",hichmay be 'bereafter ,eoristru(lted, any of the: navigable water-ways of' the, United States, iE/ an:obetruction to thefreena'ligation of such waters by reason of inbl.'Jght., ",idtb'Clf, iSptln, or where. Ulere is diftlculty in .. steamthe duty of tQ give noboats, or Cltber. tice to or corpo):ations .ownll1g said bridge to' 80 alter th&' sanie as torendel' navigation: through 'ofullder it 'fr,ee" e,inly, and unobstructed; and in giving such notice he lilball 'prescribe in each case reasona-
SHIRAS,1. . In the act of congress ofAugust 11, i888, (25St. p. 424,) it,isprovided:' " ..... . . '.. ,."
UNITED $TA'f$$, ". KEOKUK &: ;I[. BRIDGE CO.
bJEl time in which such alteration is to be made. ... .... III Sec. 10. That the owner or or Qianagers, of any railroad or other bridge obstructing the frt>e navigation ohny nav'igahle water-way of the United States, who shall willfully fail or refuse to remove the same. or to cause the necessary alterations to .be 'made 'in tht> same,' so as to render navigation through or untler it free, easy;'.andunobstructed to raftfl. steam-boats. or other water-craft. after receiving 1l0t:i¢eto that effect from the secretary of war, and within the time prescribt!d by him, shall be subject to a fine. as penalty therefor, of five hundred dollars per month for the time he or they are in default." In the filed in this cause it is alleged that the defendant corporation is thEl of a railroad and wagon bridge across tbe Mis,!issippi river a,tKeokuk, Iowa. That on or about the 31st day of December, 1888, the,secretary of war, then having good reason to believe that said bridge was an obstruction to the free navigation of the river by reawbich at stages of water permitting navigation over son of the rapids rendered tbepassage of boats, rafts, etc., through its west draw rest pier difficult, gavedue and legal to the said defendant to so 'alter said bridge as to. render navigation, through or under it free and unobstructed; said notice, sd given defendant, being in,the following form: "WARDEl'ARTMENT. "WASHINGTON CITY, December 19, 1888.' "To the Eeok'tik Hamilton Bridge Company: Take notice that, whereas, the secretary of war h&$ good reason to believe that, the. bridge across the. sissippi river at Keokuk is I'n obstruction to the free navigation of the said Mississippi river (Which is one of the navigable waters of the United States) by reason of its location, which at stages of water permitting naVigation over the Des Moines Rapids, renders the passage of boats, rafts, etc., through its west drawrl>st piel'.difficult; and, whereas. to the 31st day of March. 1!:!l:!9. is a rellsonabletime in which to so .IIUer the said bridge as to render navigation through or ,upder it1'ree, easy, and unobstructed: Now, tberefore, in o!Jedi" ence to and by virtue of the ninth' and tenth seetions of. lin act of the con_ gressof the United States entitled 'An act making appropriation for the construction. 'repair, and preservation ofcertllin public works on rivers lind harbors. and for other purposes: which took effect Augllst 11. ISH!:!. I, Wm.C. Endicott. secretary of war, dt) hereby notify the said Keokuk & Hamilton Bridge Company to so alter the saitl bridge,as to rertder navigation through or under it fr..e, easy, and unoustructed, and prt'scl'lbe that such alteration shaH be.maclelind completed on or before the.31st day of MardI, 1889. . "WM. C. ENDICOTT, Secretary of War." the deflilndant .failed and refused to cause tpe necessary alterations in, said bridge to be made, so as to render navigation under it free .unobstructed fOr rafts, steam-ponts, .and other. water-craft, which faUur,e had continQed. for. two months after the uate·fixllct in the notice said alteration, aQd in thereofthe defor in<iebted in a' pElnalty of $500, for eaob of said fepP1Jnt had lleiqp; prayed in the, sum of $l,OQO. ,1,'0 tbifl petitiqn e.d.emurrer is interposed on grounds, the first that tbe,sfJ(ltions:o(fhe act of congresa aboye cited are tiqnal and: ;f.or tbat. the ,powers attempted. to be thereby lodged by the constitu-
tion in congress, and the same cannot be conferred upon any other body or person. That the power of congress to determine whether a bridge may be erected at a given place upon the navigable waters of the United is settled States, and to prescribe the character thereof, is by a long series of decisions of the supreme court. Penna v. Bridge Co., 18 How. 421; GUman v. Philadelphia, 3 Wall. 713; In re Olinton Bridge, 10 Wall. 454; Bridge Co. v. U. S., 105 U. S. 470; Miller v. Mayor, etc., 109 U. S. 385, 3 Sup. Ct. Rep. 228. On part of defendant it is admitted that congress possesses this controlling authority, and could exercise it over the bridge owned by defendant; but it is contended that congress alone can exercise the power, and must do so as a legislative body, and that it cannot delegate this power to any other body or agency . The argument is that the bridge in question was originally built under the authority conferred by the act of July 25, lS66, and that as built it conformed to the requirements then presoribed by congress, and was therefore a legalstructure; that admitting that for any cause since arising the bridge may now be' a greater obstruction to navigation than it formerly was, still it is for congress to determine whether the obstruction caused by it is sufficiently greftt as to require a change in the bridge,and, if so, to determine the natllre and extent of suoh change. If it be true that the bridge in question when erected met 'all the requirements of the act of congress under the authority of which it 'was built, so that it Wll8 then a legal structure, it is difficultto evade the conclusion that it wojIld an a-ct of congress to so change its stat1t8 as to render the })ridge company liable to punishment for maintaining it as it was originally constructed. Railroad and wagon bridges across the rivers of the country are agencies for the carrying on the public travel and commerce, the same as are navigable rivers; and it is therefore held that there must be in all cases a reatwomodes of tra,rel,and that each mijy sonable compromise be required to sp.bmit to SOme obstruction and inconveniences, or, in an extreme case,when the inte>:ests of the public demand it, the one mode of commercial intercourse may be authorized, to the exclusion of the other. TransportlltionCo. v. Oity ofOhicago, 107 U. S. 678, 2 Sup. Ct. Rep. 185; Gilman v. Philadelphia, 3 Wall. 713; Miller v. Mayor, etc., 109 U. S. 385,3 Sup. Ct. Rep. 228. If, therefore, in a: given case, congress authorizes the construction of a railway bridge across a navigable river,and prescribes the location ana ruode of its construction, and the bridge is built in conformity thereWith, it is certainly then a legnl structure, and the obstruction caused by it to the navigation of the river:'lliust'be deerued to be a burden lawfully imposed upon the free navigation of the river, of which no onec8.n legally complain. If upon completion of the bridge it becomes apparent that the same, owing to its 10cati6n or mode of construction, or through some change in the channel of the river, is in reality an unreasonable obstruction to the navigation of the river, congress cli.1'1'require it to be remodeled, or to be entirely removed, if that the only remedy. Until congress, hO,wever, requires it, to beremodeled orternoved, it certainly cannot bec1ainied that the bridge com-
UNITED STATES '11. KEOKUK &: H. BRIDGE 00.
pany is liable in any form of proceeding to be fined or punished for maintaining the bridge, or that the structure can be judicially declared a nuisance, and abatable as such. The ruling ofthe supreme court in the Wheeling, etc., Bridge Cb8e, 18 How. 421,is conclusive upon this proposition. It follows, therefore, that if a bridge is constructed in accordance with the provisions of an act of congress authorizing its erection, it is, when thus constructed, a legal structure, and its 8tatua in this particular cannot be changed by judicial action, or by any power short of that which legalized it in the beginning. It is certainly a defense to an action brought under section 10 of the act of August 11, 1888, to recover a fine for maintaining a bridge across a navigable river which is claimed to be in fact an obstruction to navigation, if it be shown that the bridge as constructed has been declared a legal structure by the congressofthe United States, which may be done by showing, as in the Case of th:e·wnea,. ing, etc., Bridge, that after its erection congress legalized it, or by showing that congress authorized its erection, and presc;Jribed the location and·form ." of the structure, and that it was built in accordance therewith. The bridge-owner cannot be made liable toa fine or for damages simply, oecause'the bridge may be in fact an obstruction to the navigation of the river, but only in case the obstruction is illegal; and that l'redicatedof a bridge built under the authority of, and in accordance: with the requirements of,an act of congress; Therefore, in the present ,case, if it be true that the bridge owned by the defendant company'was built under the provisions of the act of congress of July 25, 1866, and when completed met the.requitements of that act, so that it was then a legal structure, and it has not silice beenichanged or become out of repair, but still continues to fulfill the requirements of the act under which it was constructed, then it must be shown, in order to subject the defendant company to liability for the maintenance of the bridge,' that con· gress has in some proper mode required a change or alteration to' be made therein, and that the company has failed or refused to comply with such requirement, and has thus rendered itself liable for the maintenance of wbat congress has thus declared would become an structure, unless, changed or remodeled in accordance with the' requirements prescribed by congress. On behalf oLthe United States it is claimed that congress has ina, Ill.wful manner declared that the bridge in question must be !changed :in ,('.artain particulars, through the action taken by the secretary of acting under the authority of section 90fthe act of August 11, 1888, and thus the question is presented, whether congress can delegate to the retary of war,or any other body or person, the power to determine whether a bridge lawfully constructed is so much of an obstruction to navigation that the publio interests require it to be remodeled or wholly' removed. It cannot now be:questioned that congress can confer upon the secretary of war, or other agency, the' duty of ascertaining'whether 9 given structure conforms iIi fact to the requirements of the acto! congress authoriziDK its ere<ition;and to prescribe any changes that may be -needed to conform it thereto; or congress may authorize the erection of
FEDERA.L .REPORTER ,voI.45.
in accordance with the plans to be adopted by the secretary of held in the 'case of v. Mayor, etc., 109 U. S. 38.5,3 Sup. Ct.'Rep. 228, but stiltthis doesriotineet the exact question now before the court; Assume -that a given bridge was built under an act of congress which prescribed: -the height; thereofand the width of the spans, "'lnd that it conformed to the requirements of the act in. these particularS, lillld the secretary of war should come to the conclusion that as thus built the' bridge was an 'obstruction to the free navigation. of the river, andebould order the bridge company to increase its height and widen the spans, would such action be legal and binding upon the bridge company? It seems tome that it would not. It is for congress to decide how much of an obstruction to the free navigation of the river may be caused, and to prescribe the height of the bridge, the width of the span rand the like, which maybe d()ne by express declaration in the acf of congress, or by providing that the bridge shall be built in accord,. ancelwitb the plans to be approved. bythe secretary of war or other competent person. If the bridge when built conforms to the requirements imposed by congress, in whatever mode they are prescribed, then the bridge is.a legal structure, and the obstruction caused by it to the navigation of the river is authorized. Congress cannot, without abdicating its paramount and conclusive authority in the regulation of the comhighways of the country,conler llpon tbe secretarrof war tbe right to declare that bridges lawfully erected are obstructions to free navigation, and must be remodeled or reDIo,ved. If section 9 of the act of 1888 bad provided that it should be the duty of the. secretary to ascertain whether the bridges named in the section were obstructions to navigation by reason ·of a failure to construct them in accordance with the requirements!of tbeacts autborizing' ,their erection, and, where such failure exiswd, to require the bridge company to conform to the require-IDents ,prescribed, exception could not be taken to such an enactment; but that is not the purport of the section. It requires the secretary, in case he has, good reason to believe· that a bridge is an obstruction to the free navigation ofa river by reason. ofinsufficientheight, width of span, or otherwise,or where there,is difficulty in passing the draw-opening or the raft-span of the bridge, to give notice that the bridge must be so al. tered as to render navigation free andrunobstructed. There is not, probably, a railroad bridge across any of the naVigable rivers olthe country' but crl".ates some to thee free. navigation of the stream; nor is there .a draw-bridge but ,that creates, some· di ffieulty in. passing tbrough the same. If this section is construed literally, it would compel the secretary of war to require the alteration or. possible removal of nearly Qv,er.y bridge in the oountry that spahsa navigable river; and the only elcape. from this conclusion.is to hold that it isintellded only to require the altera.tion of bridges thatcause:an unreasonable obstruction to gation, or create. an unreasonabledifticulty in passing the draws thereof, and ·that the secretary o!"war must determine in each case whether the bridge is or. is not aD unreasOnable obstruction before he can require it to·be altered.:
war, as is
'rhus we are forced back the seqtion in question confers upon the secrEltary the duty of determining whether a given bridge is an unreasonable. obstruction, wpich in turn involves the duty of determining how much (?f an obstructioq the publiointerests require sho,uld be placed in the:Wll:Y of the free river, which is a question which belongs tq congress to determine, which cannot be rightfully delegated J() :anlY' subordin;1.te authority or person. It certainly w,9:uld. not be that congress could upon the secretary of war the power whep and where bridges should be built over the river,s ,of the country,.and to define, according to his own jU<lgment, the character thereof, thus settling how mucho! a burden, should be placed upon the navigation Of $e rivers; yet in would tllere bell. difference between the power to be exercised, under sqch an act and that ,to be by sectipn 9 of theiact of 1888. the secretary would be reqqire,dto to what extept free, of the river might be 0lJ,. structed in the, and in to, ;require the br,idge to be and, in the other to. beremodelecJ altered, so as..notto cause. a,n. obstruction g1]8.ter. which the 'c;leter:navigation of given river.shopJp:besubjected to, and thus the and <i,ecisi()n .pf the .secretary upon the question; of amouI:\t o(obstruction tha,t d,emand should, be c:laq&e9to the, otherwise free navigation of the river, would be, sUbstituted fortha judgment. dec,ision , In, effect, if by is with the requirements ofJhe, its erection, tqe case is, pyesEilnted in this f9.JifP.: "CongrE!SS .t4ll:t the navigatiqn 91 the subjeqted to so DlUQH of anobstrtWtlon wollld by th,e erection of the bridge at theplaQe and ill ,fqrpl rprovided fOt" in the act, and, bridge having, been thus built, then congress, by the act ()fJ888, provided that if ,secretary of the priqge to then it mustb'eremodel.edorJ'eqlOved; or.".:IDQrebriefly, a br.idge which ized tob,e buUt, to p'e aJegal,structure, <;:a,nbe to be illegal" !!-nd therefore reIn:co.vable;by tJ¥l secretary .of war. . If the la llguage of 9 of in quefJtiOll}S !l0ught to be applied in the er case of a .l1n 4 tbeauthority of, and in lVith the provisiqnsof, an congress, so in effect, a structure was a legalized. obstruction, to thena.vigation rof a river is declared ,to be an obstructiopby t4e that reason the; bridge must be,reJ;O,odeled or re]milt ilf whole or,m part, then it must be held that the. seCtion, was pot intended .to .he, applieg t.o such, cases, O'l if it was, is void for the ,reason that- OO0f¥688 cannot. confer UJ;lllJ.i. ,the secrota:ry o(,¥ar of tions WllicQ c.<;l,ngress alone can:dflcide"pol)ca,n the sec.retary beempowered ,anllct:,()f cOJ;1gress a.uthorizing and legalizing the erect;on'and' ot 1If,brldge?ver !!' navigable ,.ri.ver, shall, -Cease eij'ect, and, ,thu&. tq, de?Jare,'a brl?ge be an Ipegal,obstruc-
tion to navigation which congress has declared is a legal obstruction. If it be true, then, and this opinion is based upon that assumption, that the bridge owried by the defendant company was built under the authority of, and' in accordance with the requirements of, an act of congress, to-wit, of July 25, 1866, and has since been maintained in accordance therewith, then it is held that the secretary of war does not, under section 9 of the act of August 11, 1888, possess the power to declare the bridge to be an obstruction to the navigation of the Mississippi river, and for that reason to req\lire it tobechangM, remodeled, or rebuilt, and the order made to that end is nugatory;' and' the defendant company cannot beheld 'liable to a fine for failing to obey such oreler. . next ground 'of demurrer is 'that, granting in a given case that the secretary of war rp.ight lawfully possess and exercise the power to require the owners of abridge over a navigable river to change or alter the construction thereof, as provided for in section 9 of the act under considerJtion, nevertheless, to put the owner of the. bridge in default, the notice given under the statute must point out or define in some mode whafcpanges or alteration/.! are required to be made. .In considering this quest;iori regard must bahad to the character oftha'statute sought to be enforced." 'The section of the act which is the basis oHhis proceeding is penal' in its nature, ahd'the action is to recover 'a penalty for an alleged violation of its provisions. It is a fundamental rule in regard to such st/itutes that to be enforceable they must be free from ambiguity and uncertainty; or, in other words, beforetne citizencari be punished for a failure to obey the statute, it must be made clear what he is required to do odo abstain from doing. If this 'was not the rule, then statutes could be so drawn as to prove traps, not only to the unwary, but even to those who might desire to obey the law, but had been innocently miEtled by the uncertainties caused by the ambiguous language of the statute. '. Now a statute may require obedience to soine prope:r order to be made by a named person, body, or other authority, but in that case the order to which obedience is required must be sufficiently clear and certain tonotjfY the persdn to whom it is addressed of what he is to do or not to do. In the present casei assuming that the sE'cretary of war had the P9wer to decide that the bridge owned by the defendant company was an obstruction to navigation, and' must be altered or remodeled, was it'enough for him to simply decide that it was an obstruction, and then to notify the defendant that the bridge must be remodeled without pointing out in what the obstruction to the navigation consisted, or what change or alteration was required to be made? It would seem that in some fair way the bridge company should be notified of what was required of it before it could be adjudged to be in default, and be subjected to a fine; or, in other 'words,the secretary should declare in what particular the bridge should be rebuilt, remodeled, or changed, so reasonably know what was expected of that the, owner thereof him.' It certainly could not be permitted to the secretary, without any hearing afforded to the company, to declare that the bridge was an obstruction; and then to notif)T the company that the bridge must be altered
UNITED STATES tI. KEOKUK &: H. llRIDGE CO.
or remodeled, without pointing out either the character of the obstruo-. tion, or the changes deemed necessary to be made in order to meet the views of the secretary. Unless properly notified of what was expected of the company, the latter might make many and costly changes in the bridge, and still be liable to, punishment beeause it had failed to make the changes which the secretary had in mind, but had failed to declare or make known to the company . ' Thus the company, under a general notice to alter its bridge,might at great expense increase the height thereof, and then be fined for,not widening the span between the piers, or vice verBa. If the action takeh by the secretary simply amounts to "This bridge is an obstruction to navigation; alter would, seem clear that the bridge-owner cannot be charged with the. duty of guessing at what is required, and be subjected toa fine by way of punishment because it failed to properly solve the riddle. The notice given to the defendant company in this instance., after the recitals therein, reads as fellows:
& Hamilton Bridge Company to so alter the said bridge as to render naviga-
"I, Wm. C. Endicott. secretary of war, do hereby notify the said: Keokuk
through or under it free. easy. and unobstructed. and prescribe that said alteration shall be made and completed On or before the 31st day of March, ., " , 1889."
This notice requires the, bridge company to so alter the br.idge as to render navigation under it free, easy,. and .unobstructed. Literally construed, this would practically require the bridge to be wholly removed, for no bridge having a draw to be passed can exist without placing some obstruction in the way of the free navigation of the stream over,which it rests. ' From such a notice, how is it possible for the bridge company to ascertain what is required of it, except that it must leave the pavigation of the river "free, eaay, and unobstructed," which is impossible, so long as the structure remains resting on piers built in the river, with a draw for the passage of steam-boats and ,other like craft through it. If it is said that such a notice must be construed to mean that the obstruction caused by the bridge muskpe reasonable, and that it must be altered SI) as to be only a reasonable. obstruction, the difficulty still relUains that no guide or direction to the company for determining how much of an obstruction would be deemed reasonable. Thenoticedoesnot require that the bridge ahaR-be such a height, or of a given span between the piers, or that the drQ.wsha,ll be placed at a given point, or at a :givf?n angle to the current, nor is it declared that the bridge is an obstruction because of insufficient height,width of· span, or otherwise, and hence the company is left wbolly.in the darkas to what is really required ofit. Whose judgment is to determine whether the bridge is in fact an unreasonable obstruction? If, under this notice, the company had e;x:pended thousands of. dollars in rElmodeling the bridge, ,and it had then been sued because the navigation. of the river was not free, easy, and unobstructed on account of the bridge, what criterion could be appealed to for determining whether the company had met or failed to meet the requiremellts of the notice served upon it? If the