7 F. 653 -

IN SB CANADA. NOBTBEBN BY.

In re

CANADA NORTHERN

Ry. v. INTEaNATIONAL and others.

BBIl>GE Co.

(District Uourt, N. D. NetIJJ York. --.18RO.\
1.

JUDICIAL ACTION-USE OF EA8ElmNT.

A determination by a court, under the authority of a statutory enactment, in a case of disagreement, of the" terms and conditions r, upon which a railway company should be entitled to the use of a bridge and its appurtenances, ilftet hearing the allegations and proofs of the parties, is not an improper exercise of the judicial function.
2. SAME-SAME.

It is no le8B the exercise of conduct, or protect the than it is to determine
.3.

SAME-SAME.

function to prescribe al"Jlle of of a right during a future period, the right has been invaded in the past.

When a statute refers the question of the conditions up.on which" .an easement shall beenjoyed,to a.judicial1ribunalfor decision,: after Ilt}aring the proofs and of ,the is cogent that the decision shall procee,d upon settled principles of law and eqUity; a'nd not upon'arbitrarydlscretlon....;.;[ED. . .'

An act ofeongress, approved J-une30, 1870, ftuthorizedthe -construction ami maintenance:ofa bridge across the. Niagara river by the International Bridge Company, and prov.ided that "all railway companies desiring to use'said bridge. shall ha.ve :and be entitled to equal rights and privileges in the passage of the same, and in the u.se of the machinery and fixturea thereof, ·.and of all the appurtenances thereto, under and upon auch terms and conditions as shall be prescribed by the district court -of the UnittldBtatesfor the northern district of New York, upon hearing the allegations and proofs of the parties, in case they shall not agree." The Canada Southern Railway Company :subsequently presented thtlir petition under this act to the district court of the United States for the northern district of New York, and alleging that it had never been able to agree with the International Bridge Company upon the amount of compensation which it should pay for the use of such bridge, -prayed the court to determine and prescribe the terms and upon which it might use the said bridge, with the machinery, and approaches.

,FEDERAL REPORTER. '

1. P. Laning, for Canada Southern Ry. Co. E.O: SpragtU, for International Bridge Co. WALLACE, D. J. After full;y considering the preliminary questions presented on the argument I am of opinion that it was competent for congress to impose such conditions as in its discretion might seem proper concerning the use and controlof the International bridge, and that by the act in question ample jurisdiction was conferred upon this court to de. termine the present controversy. While it was competent forthe legislature of New York and the Canadian parliament to charter corporations and grant franchisee for the construction and maintenance of the bridge, so far, as their Elovereignties were concerned, the corporation could only obtain the full benefits of the grant by the consent of sllbject of the grant was the right to build and control a bridge which would be a highway of transportation not only between the United States and a foreign country, but also the eastel'll and western states. It was therefore of the first importance to ascertain whether congress would sanction the purposes of the grant, and the terms and conditions upon, ,which such sanction could be obtained., It was for congress, to determine when its power to regulate commerce should be brought into activity, and &s to the regulations and which should be provided. Getman v. Philadelphia" 8 Wall. 725; The Olinton Bridge, 10 Wall. 454; Pennsylvania v. The Wheeling B1'idge 00. 18 How. 421. By the act in questiori congress gave its sanction in advance, but upon the conditioris that all railway companies desiring to usetne bridge should have equal rights and privileges in the passage and in the use of the bridge, and of the machinery, fixtures, and approaches, "under and upon such terms and conditions" as this court should prescribe, "upon hearing the proofs and allegations of the parties, in case they should not agree." The power of congress over. the subject was plenary. It exercised the power, and the International Bridge Company availed,itself of the privileges and assented to the conditions of the legislative sanction. Congress could not delegate its
   

IN BE CAN&DA NORT.liERN BY.

655

legislative power to any could itcotl.fer jurisdiction upon this court to' exercise any:butjudicill.lfunctions; and if the act in question, many of its provisions, conthese maxims of constitutional law as to thOse provisions, it is inoperative. But the act is not obnonous;to these objections. It devolves upon this court. simply. the judicial functions of determining the rights of parties when they may be brought into controversy. act; and this The rights are created and established is the office of the legislative department. T.he power to adjudicate upon these rights, to controversy a.TIses, their extent and value, and apply the appropriateremedy for their protection, .is oonferred. upon the court ; and this is the peculiar province of the judie:i,al departmeut. It is argued that the attempts to confer upon the court the power to fix the rate of· ;tolls which the International isa legislative Bridge Company may charge; and that. and not a judicial function. If congress had fixed the rate of tolls, as it had the .right to prescribe .theconditioJ::l.s: .upon which the franchise might be enjoyed, no' other auth'ority: could have intervened to change these, conditions. But suppose the act had, in terms, provided that the bridge company might charge reasonable tolls, would not this: have· ,been a complete exercise of the legislative power, and would it not have remained for the judicial: dep!trtl1lent to decide, !when controversy should arise, what were or were not reasonable.' tolls?' And if theact'hadprovided fOf,8uc.h a determination by a judicial tribunal, would this have been unconstitutial?, It seems to not.. It is no ex:erclse cial functions to.prescribe a. rule of Qonduct olOCproteo.t, ;,he: existence of a. right during a future period,. than it is to dete1" mine whether the right has bE'.en invaded in thepa.st; I ltis, one of the common office,a of a court of equity to do this:.. It is said that that which distinguishes a judioiahfrom a· legislative act is that the one is a determination ofwhaLthe, existing law is in rel8ltion to 80me eJliiiltix,lgthipg alreBldy.done' or happened, while the other is a :mhat the law shjl,ll be for the regulation of aWfuture .oases Lfalling

656

FEDFlRAL REPORTER.

under its provisions. It seems to me that this statement ot the distinction isincomplete. It is essential to judioialaotion that there be parties and a oontroversy. Judgment is only pronounced after a hearing. That would not be judioial aotion whioh should determine the existing law in ;relation tosom& existing thing, already done or happened, without the intervention of parties' and the existenoe of a oontroversy; and when there are parties and a controversy it c is not less a. judicial act beoause the determination regulates rights and obligations in the future, and the manner in which they shall be observed. The act of oongress inefi'ect provides that aU the companies using the bridge shall have equal privileges in its use, and for a reasonable oompensation, to ascertained by the court if theparties'oannot agree, The phraseology employed is unfortunate, and fairly' suggests the objections which have been urged; but when the act refers the question of the conditions upon which an easement shall be enjoyed to a judicial tribunal for decision, after hearing the proofs and allegations of the parties the implication is cogent thai this decision shall proceed upon settled principles of law and equity, and not upon arbitrary discretion. An act of congress will not be declared unconstitutional unless every reasonable doubt to the contrary is resolved against its validity; and it is the duty of courts so to construe the act as to uphold it, if possibly consistent with the language used. Had it been the intent of the act to confer jurisdiction upon the court simply to enforce equality, and prevent unfair discrimination for or against any of the several corporations in the use of the bridge, it would have been unnecessary to authorize the court to prescribe the "terms and conditions" upon which the various companies might use the bridge. If> would have sufficed to confer jurisdiction in general terms over any controversy that might arise, and it WOilld then have been competent for the court to enforce equality upon any of the principles and by any of the remedies' known to the court. ·Effect must be given to the language used. The conclusion reached is also in harmony with considerations of a.

EX PARTE HOUGHTON

657

more general character. It can hardly be supposed that congress intended to grant unlimited authority to a corporation to fix any compensation it might see fit for the use of the bridge, because it would then be in the power of the corporation to do indirectly what it has not intended should be done. The bridge company could charge such toll's that no railway company could use the bridge unless it should be ·a stockholder, and thereby receive in dividends what it might 'pay out for tdlls: The bridge was to be an enterprise of great public importance, and it is reasonable to suppose thati:lot(.. gress intended carefully to guard' the ptlbiic itlterests which were cotlcerned·.

Ex parte

HOUGHTON.·

(District Oourt, D. Vermont.

1.

CRnmS-STATlll COURT-JURISDICTION.

J\lae 14, 1881.)

A state court has no jurisdiction over the offence of passingcounterfeited national bank bills. 2.
SAME-HABEAS CORPus-FEDERAL COURT-JURISDICTION.

1. writ of lwbeas corpus from a federal court is the proper remedy, where one is restrained of his liberty by a state court for the commission of such an offence.-fED.
   

Motion for Discharge on Habeas Corpus. Wm. G. Shaw, for relator. WHEELER, D. J. This is a motion by the relator for a discharge, on habeas corpus, from imprisonment in a prison of the state, under sentence of a court of the state for passing counterfeited national bank bills, on the ground that the state court had no jurisdiction over this offence, and that the imprisonment is contrary to the constitution and laws of the United States. The constitution of the United States provides:
"Article VI. This constitution, and the laws of the United States which shall be made in pursuance thereof, - ... .. shall be the supreme law of the land, and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwith" standing." v.7,no.6-42 *Re-reported. l:I sur.