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
out specifically what was requiTed of the company ,then 'it might be sllownthat these requirements had or had not been complied with; but the notice, as served, gives no criterion for determining what was expeeted6fthe company, except that the navigation of the river must be left free, easy, and unobstructed; which requirement cannot be met exceptby wholly removing the'bridge. . But it may be said tha.t the difficulty songht to be remedied is sufficiently'pointed out in the first clause of the notice which is as follows: ,. Whereas, ,the secretary of war. has reason to believe' that the bridge acros'stbe Mississippi river at Keokuk is an obstruction to the free navigation of.tM said Mississippi river. .. .. ... by reason of its location, which at stages of water permitting. navigation over the Des Moines rapids passage QfboaLs, rafts, etc., through its west draw, rest pier ditliIi : ,
, thMin the judgment of the secretary of war the location of the bridge is an improper one; and, granting this to be the difficultyso1.'lght to be remedied, it still remains true that the notice. does not point 0!J't' remedy 'to be applied i except in the removal of the bridge location, which, in effect; means taking, it down in whole from or in part, and possibly'rebuilding it hi some other location. If this be the real meaning of the notice, and such was the intent of the secretary of war, then we are again rnetwith the queP'tjon whether congress' can confer upon any other'bodyorperson the power to 'determine whether the public interests demaddthat a bridge, located and· built by express authority of congress, shaH be removed or rebuilt at some other location. The situation is simply this: The bridge was built under an act of congress whichdeterIllined its 'location. When built at the place it now 0ccupies, it was a legal structure, and the navigation oithe river was lawfully subjected to the burden thus imposed thereon, and the company could rely upon the aot of congress authorizing its erection as a defense against an,y suit or proceeding against the company based upon the erection or maintenance of the bridge np to the date of the order issued by th!" secretarY' of war. If the act of congress is not now a defense and protection to the company, it is because the order of the secretary has in effect declared the bridge to be an illegal obstruction, and this power cannot in such case be conferred upon the secretary of war. Therefore, if the notice served upon defendant company be construed to mean ,that the location of the bridge must be changed, Buch order would be nugatory for the reason stated; and if it be construed, to mean that the COl'npany mUi:lt,sb alter it as to leave thehavigation of the river free and un-obstructed, then the notice is so indefinite and uncertain that it cannot beheld to impose any duty or obligati<>n upon the bridge company. It is argued behalf! df the United $tates that parties undertaking to build bridges acroi:ls navigable rivers do so at their peril, and, if a given bridge is in fact an oostrlitltion to free navigation, the secretary of war may be authorized to cause its removal,' or require it to be so changed as not to prove an obstruction to navigation. As to all bridges not built under 'proper state or federal authority this may be true. It may be ad-
UNITED STATEs v.· KEOKUK &'11; iBBlDGE CO.
mitted tbat the freeiDavigation of a river ianot to be interfered with or Obstructed by the building of a bridge over the same by any rail-road or bridge company, or by any individual citizen acting without governmental authority; .and therefore, as :claitned, whoever undertakes, without specific authority, to.ereot adbridge over such a stream, does so at his peril,and if,when erected, it is in faot an obstruction, it may be removed for that teaeon.· Again, congress might determine that as to any given river or water-way the thereof must be left wholly free and unobstructed, and might therefore empower the secretary of war to eause all bridges interfering with the free.navigationto be or to be so constructed as not to interfere therewith. In such cases the legwillis declared to be,that the navigation of the river shal1be left wholly free and unobstructed, and the secretary of War would .only charged with the duty of executing the legislative will in this particular, -a duty which must of necessity be intrusted to some executive agency. When, however, it becomes necessary to decide whether the public interests demand that the navigation of a river shall be subjected to some burden and obstruction in order that the other public highways of the country may be carried over the same by means of bridges, and to prescribe the nature and extent of the obstruction that may be caused to the navigation of the gIven water-way, there are presented legislative questions, the decision of which cannot be cOQ.ferred upon any individual citizen or subordinate authority; and when congress has declared that the public interests require navigation of a river may be subjected to the obstruction caused by the erection of a bridge of a defined character at a fixed location, and the bridge is erected accordingly I and isthu8 legalized, no power short of cqngress acting in its legislative capacity can deprive the bridge-owner of the protection afforded him by the act of congress authorizing the building and maintenance of the bridge in the first instance. If the action of the secretary of war in the present instance can be sustained, it would follow that he could have ordered the location of every bridge over a navigable river or water-way in the. country to be changed, and thereby have rendered the owners thereof liable to fine for not removing the same, and, as a result, would also have rendered them liable to respond in damages to all parties who could show that they had suffered a detention in the navigation of the waterways, and that, too, without an opportunity being given to the bridgeowner to be heard in defense of his rights. It is apparent that it was quickly perceived that the act·of 1888 was open to serious question, for in the act of September 19, 1890, sections 9 and 10 of the former act were amended by adding the word "unreasonable" before obstruction, and providing for a hearing being given to the bridge-owner before action is taken by the secretary, and also requiring the notice served upon the bridge-owner to specify the changes required to be made in the bridge. While these changes remove sOme of the objections existing under the former statute, it is still made· the duty of the secretary to determine' what is an unreasonable ohstructionto navigation. As the present case was brought before the passage of the amendatory statute, it is not nec-
essary to consider or determin'ewhether the amended statute is 01 is not open to' the same objection that is held fatal to the validity of the first It is, however, assigned as a further ground of demurrer that the act of 1890 in fact repeals that of 1888, and that consequently this proceedingmust fall with the repeal of the act upon which it is based. There would be for.ce in the point thus made were it not for the provision of section 13 -of the Revised Statutes of the United States, which enacts that the repeal of a statute shall not have the effecUo release or extinguish any penalty, forfeiture,or liability incurred, unless the repealing act shall; so provide. , -Upon the latter ground 1 the demurrer is overruled, but, upon the other grounds discussed in the opinion, it is sustained
(O£rcuU Oourt, D. Vermont. February 7,1891.)
, 'Rev. St. U. S. § 758, which declares, that 'Ithe writ of habeas corpus shall in no casll exteud to a prisoner in jail," does not oust the federal courts of jurisdiction to release on habeas CorP1tS, filr the purpose of bringing him before a commissioner for examination, a debtor who is in jail under executions in civil, actions, since such . debt9r is not confinEid at the suit of the state, but of his
CORPUS-CONFLIOT OF JURJ.SDIOTION.
A'de'puty-marsllal who has a commissioner's warrant for the arrest of such debtor on extradition procllEldings hassufllcient interest in the debtor's liberty to ,autho,rize him to apply for his release from jail on habeas corpus. 'Under the general power given to commissioners by Rev. St. U. S. § 727, to hold persQns for security of the peace and good behavior, 1IJ commissioner may issue a warrant for the arrest of a person oharged with the commissiOn of an extradict-able offense in a foreign oountry. '
It is not necessary to the validity of such warrant that it should appear affirmatively in the first instance that the proceedings are instituted at the request or by the authority of the foreign government.
At Law. On application for habeas corpus. AlbertP. 0,088, for relator. J. A. Broumand D. J. Foster,_ for oreditors and prisoner.
WHEELER, J. The relator, a deputy-marshal, has a commissioner's warrant for the arrest of the prisoner on extradition proceedings for forgery in Canada. The return of the jailer shows that the prisoner was committed to his custody on two executions and two writs of attachment in civil' actions against the body of the prisoner as an absconding debtor. No qnestionis or can be made but that the offense is within the treaty between the United States and Great Britain of 1842 for the surrender of criminals. '