Bridge Company v. United States/Opinion of the Court

The first question which presents itself is, whether, on the face of the several acts of Congress, any liability rests on the United States to pay the bridge company the cost of the change that was directed in the plan of its bridge. It cannot be denied that but for the act of 1871 a bridge built according to the original plan would have been a lawful structure which the company could have maintained until Congress withdrew its assent, or required alterations to be made. The paramount power of regulating bridges that affect the navigation of the navigable waters of the United States is in Congress. It comes from the power to regulate commerce with foreign nations and among the States. Willson v. Black Bird Creek Marsh Co., 2 Pet. 245; State of Pennsylvania v. ''Wheeling, &c. Bridge Co.'', 18 How. 421; Gilman v. Philadelphia, 3 Wall. 713; The Clinton Bridge, 10 id. 454; Railroad Company v. Fuller, 17 id. 560; Pound v. Turck, 95 U.S. 459; Wisconsin v. Duluth, 96 id. 379. That the Ohio is one of the navigable rivers of the United States must be conceded. It forms a boundary of six States, and the commerce upon its waters is very large.

No question can arise in this case upon what the States have done, for both Ohio and Kentucky required the company to comply with the regulations of Congress. Neither are we called on to determine what would have been the rights of the company if in the original license no power of future control by Congress had been reserved. The resolution on which the company relies contains this distinct provision: 'But Congress reserves the right to withdraw the assent hereby given in case the free navigation of said river shall at any time be substantially and materially obstructed by any bridge to be erected under the authority of this resolution, or to direct the necessary modifications and alterations of said bridge.' An examination of the legislation of Congress in reference to the bridging of streams shows this to have been at that time a new provision. It had appeared but once before, and then in the act of Feb. 19, 1869, c. 37 (15 Stat. 272), passed at the same session of Congress, authorizing a bridge across t e Connecticut at Middletown.

The first enactment by Congress on this general subject is found in sects. 6 and 7 of the act of Aug. 31, 1852, c. 111, making appropriations for the Post-Office Department (10 State. 112), which declared the bridge across the Ohio at Wheeling then existing to be a lawful structure. This act simply gave the bridge company leave to maintain a bridge already built, and reserved no power of future control. Next followed, ten years after, the act of July 14, 1862, c. 167 (12 id. 569), which legalized a bridge then in the course of construction across the Ohio at Steubenville, and contained the general provisions as to bridging the Ohio above the mouth of the Big Sandy, referred to in the resolution of March 3, 1869. In this act, also, there was no reservation of power by Congress. The next was the act of Feb. 17, 1865, c. 38 (13 id. 431), by which the act of July 14, 1862, was amended so as to authorize the erection of a bridge across the Ohio at Louisville. In this, too, there was no reservation of power, but specific directions were given as to the height of the bridge, the number and location of draws, and the length of spans, and it was expressly provided that all should be so constructed as not to interrupt navigation. The same day another act was passed, c. 39 (id. 431), by which a bridge across the Ohio between Cincinnati and Covington, then being built in accordance with the laws of Ohio and Kentucky, was declared to be a lawful structure, and no power reserved. There was no further legislation of this character until the act of July 25, 1866, c. 246 (14 Stat. 244), which authorized eight bridges across the Mississippi at and above St. Louis, and one across the Missouri. This act provided that, 'in case of any litigation arising from any obstruction or alleged obstruction to the free navigation of said river, the cause may be tried before the District Court of the United States of any State in which any portion of said obstruction or bridge touches;' and sect. 13 was as follows: 'That the right to alter or amend this act, so as to prevent or remove all material obstructions to the navigation of said river by the construction of bridges, is hereby expressly reserved.' The act of Feb. 27, 1867, c. 98 (14 id. 412), legalized the Clinton bridge across the Mississippi, and by the act of Feb. 21, 1868, c. 10 (15 id. 37), the act of July 25, 1866, was extended so as to include a bridge over the Mississippi at La Crosse. By the act of July 6, 1868, c. 134 (id. 82), a bridge across Black River in Ohio was authorized. Afterwards, by the act of July 20, 1868, c. 179 (id. 121), two other bridges were authorized across the Missouri. In all these acts the power of alteration and amendment was reserved in the exact language employed in the act of 1866.

This brings the history of congressional legislation on the subject of bridging the public waters of the United States down to the session of Congress when the resolution in favor of the Newport and Cincinnati Bridge Company was passed, and when, as has already been seen, the peculiar form of reservation which appears in that resolution was for the first time introduced. Two licenses were granted at that session,-one by the act of Feb. 19, 1869, c. 37 (id. 272), to cross the Connecticut, and the other by the resolution now in question, and both contained this reservation. On the same day the resolution was adopted Congress passed the act of March 3, 1869, c. 139 (id. 336), to legalize the bridge across the East River, between New York and Brooklyn, in which 'power at any time to alter, amend, or repeal' was in express terms and without any limitation reserved.

From this it seems to us clear that the peculiar language of the reservation now in question was intended to have a special signification. It had been considered enough before to provide that, 'to prevent or remove all material obstructions to navigation,' the 'right to alter or amend,' expressed in the usual form, be reserved. But when power was given to build bel w the Big Sandy a bridge such as had before only been built above, it was deemed expedient, in the interest of commerce, to be more specific, and by reserving the power to withdraw the assent of Congress to what might prove to be an obstruction to navigation, to imply at least a reservation of power to make that unlawful which, while the assent continued, would be lawful. That this is what was intended by the language used may fairly be inferred from earlier legislation on the same general subject. Thus, as early as by the act of March 2, 1805, c. 30 (2 Stat. 330), Congress, in authorizing the grant of leave to a bridge company to build a bridge across a mill-pond and marsh in the navy-yard at Brooklyn, N. Y., provided, 'that if at any future time it shall appear to the President of the United States that the property of the United States is injured by such bridge, he may revoke the permission granted by him for erecting the same.' Afterwards, by the act of March 3, 1855, c. 198 (10 id. 675, 680), the Secretary of the Navy was authorized to permit another bridge company to connect its bridge with the navy-yard at Kittery, Me., and to have a right of way through the yard to the bridge, but it was provided that the bridge and the right of way might be discontinued at any time by the Secretary. It surely could not be claimed that if, under the power reserved in these cases, the President had revoked the permission given in respect to the bridge at the Brooklyn yard, or the Secretary had discontinued that at Kittery, the United States would be either legally or morally bound to make good the loss sustained by the companies, or either of them, on that account. And the reason is, that the language in which the power reserved was expressed clearly implied that all the risks of revocation and discontinuance were to be assumed by those to whom the grants thus limited were made. So here, in assenting to an untried experiment, and one which might prove to be materially detrimental to the navigation of an important stream, Congress thought proper to reserve the right to withdraw its assent,-revoke its permission,-if what might possibly happen should, in fact, come as the consequence of the new authority which was granted. To 'withdraw assent' is the same as to 'revoke permission,' and what would be implied from one form of expression will be, under like circumstances, from the other. It is true, in the case of the navy-yards, Congress had absolute jurisdiction, and the States were excluded altogether. But the power of Congress in respect to legislation for the preservation of inter-state commerce is just as free from State interference as any other subject within the sphere of its legislative authority. The action of Congress is supreme, and overrides all that the States may do. When, therefore, Congress in a proper way declares a bridge across a navigable river of the United States to be an unlawful structure, no legislation of a State can make it lawful. Those who act on State authority alone necessarily assume all the risks of legitimate congressional interference. In the present case, both the Ohio and Kentucky divisional companies were, by express provisions in their respective charters, subjected to this paramount controlling power. The consolidated company was, therefore, prohibited from obstructing navigation more than the laws of the United States authorized, and was required to build its bridge in accordance with the provisions of the act of 1862, or any other law that Congress might thereafter pass on the subject. Hence the resolution of 1869 became, by the operation of both congressional and State enactments, the law on which the rights of the company depend. It was the paramount license for the erection and maintenance of the bridge; and the company, by accepting its provisions, became subject to all the limitations and reservations of power which Congress saw fit to impose.

From this we conclude that the withdrawal by Congress of its assent to the maintenance of the bridge, when properly made, is, for ll the purposes of this case, equivalent to a positive enactment that from the time of such withdrawal the further maintenance of the bridge shall be unlawful, notwithstanding the legislation of the several States upon the subject. If modifications are directed, assent is, in legal effect, withdrawn, unless the required changes are made.

It is contended, however, that under the terms of the reservation the assent of Congress could not be withdrawn until it had been in some way judicially ascertained that the bridge, as authorized, either did in fact, or would if built, substantially and materially obstruct free navigation. Such, we think, is not the fair meaning of the language employed. In State of Pennsylvania v. ''The Wheeling, &c. Bridge Co.'' (13 How. 518), it was judicially settled in this court that a bridge as constructed did illegally interfere with navigation; but when afterwards Congress, in the exercise of its constitutional authority to regulate commerce, legalized the structure by a legislative enactment, the court held (18 How. 421) that this act of legislative power removed the objection to the further continuance of the bridge, because, in the opinion of the legislative department of the government, the obstruction which had been erected was no more than those interested in navigation should submit to for the general good. It is to be observed that the question now under consideration is not whether the bridge company has failed to comply with the requirements of the resolution, but whether those requirements are all that the due protection of free navigation demands. The first is undoubtedly a proper subject for judicial inquiry, but the last, as we think, belongs to the legislature. Congress, which alone exercises the legislative power of the government, is the constitutional protector of foreign and inter-state commerce. Its supervision of this subject is continuing in its nature, and all grants of special privileges, affecting so important a branch of governmental power, ought certainly to be strictly construed. Nothing will be presumed to have been surrendered unless it was manifestly so intended. Every doubt should be resolved in favor of the government. As Congress can exercise legislative power only, all its reservations of power, connected with grants that are made, must necessarily be legislative in their character. In the present case the reservation is of power to withdraw the assent which was given, and to direct the necessary modifications and alterations. This was to be done in case the free navigation of the river should at any time be substantially and materially obstructed under the authority which was granted. It was originally a proper subject of legislative inquiry whether the resolution made sufficient provision for the protection of commerce. There is nothing to indicate that any different inquiry was to be instituted to determine whether the assent that had been given should be withdrawn, and as the withdrawal involved an act legislative in its character, the necessary presumption is that the inquiry on which it was to be predicated would be legislative also. No provision is made for instituting proceedings to have the question determined judicially, and even if the courts should determine that the bridge did substantially and materially obstruct navigation, Congress could not be compelled to withdraw its assent to the further continuance of the structure. This is evident from the Wheeling Bridge Case, where, as has been seen, congressional assent to a substantial obstruction was recognized as sufficient to prevent the execution of a decree of this court requiring the abatement of what, but for this assent, would have been, in the judgment of the court, a public nuisance. The withdrawal of assent, therefore, has been left to depend on the judgment of Congress in the exercise of its legislative discretion. For this purpose Congress must make its own inquiries, and determine for itself whether the obstruction that has been authorized is so materi l and so substantial as to justify, under all the circumstances of the case, an exercise of the power which was reserved as a condition of the original grant made.

It is next insisted that if in the judgment of Congress the public good required the bridge to be removed, or alterations to be made in its structure, just compensation must be made the company for the loss incurred by what was directed. It is true that one cannot be deprived of his property without due process of law, and that private property cannot be taken for public use without just compensation. In the present case the bridge company asked of Congress permission to erect its bridge. In response to this request permission was given, but only on condition that it might be revoked at any time if the bridge was found to be detrimental to navigation. This condition was an essential element of the grant, and the company in accepting the privileges conferred by the grant assumed all risks of loss arising from any exercise of the power which Congress saw fit to reserve. What the company got from Congress was the grant of a franchise, expressly made defeasible at will, to maintain a bridge across one of the great highways of commerce. This franchise was a species of property, but from the moment of its origin its continued existence was dependent on the will of Congress, and this was declared in express terms on the face of the grant by which it was created. In the use of the franchise thus granted, the company might, and it was expected would, acquire property. The property thus acquired Congress could not appropriate to itself by a withdrawal of its assent to the maintenance of the bridge that was to be built, but the franchise, by express agreement, was revocable whenever in the judgment of Congress it could not be used without substantial and material detriment to the interest of navigation. A withdrawal of the franchise might render property acquired on the faith of it, and to be used in connection with it, less valuable; but that was a risk which the company voluntarily assumed when it expended its money under the limited license which alone Congress was willing to give. It was optional with the company to accept or not what was granted, but having accepted, it must submit to the control which Congress, in the legitimate exercise of the power that was reserved, may deem it necessary for the common good to insist upon.

We are aware that this is a power which may be abused, but it is one Congress saw fit to reserve. For protection against unjust or unwise legislation, within the limits of recognized legislative power, the people must look to the polls and not to the courts. It would be an abuse of judicial power for the courts to attempt to interfere with the constitutional discretion of the legislature.

What has been done seems to have been with due regard to the rights of all concerned. The Constitution made it the duty of the Congress to protect all commerce which extends beyond State lines against obstruction by or under the authority of the States. Two States had been applied to for leave to bridge an important national river. They gave the leave, but made it subject to the constitutional control of Congress. Congress, when applied to, assented to what was wanted, but In express terms reserved to itself the power to revoke what had been done, or require alterations to be made, in case experience proved that the structure which was to be put up substantially and materially interfered with navigation. Under this authority work was at once begun. The next year, by the act of July 10, 1870, c. 240, sect. 5 (16 Stat. 227), making large appropriations for the improvement of rivers and harbors, the Secretary of War was required to detail three engineers to examine all the bridges erected or in the process of erection across the Ohio, and report to the next Congress whether, in their opinion, such bridges, or any of them, as constructed or proposed to be constructed, did or would interfere with free and safe navigation; and if hey did or would so interfere, to report what extent of space and elevation above water would be required to prevent obstruction, and an estimate of the cost of changing the bridges built, and in the process of building, so as to conform to what was recommended. At the next session the act was passed which required the Newport and Cincinnati Company to alter its bridge, and allowed this suit to be brought for the purpose of determining whether any liability for pecuniary damages had been incurred by the United States to the company for what was done. In this way Congress recognized fully the obligation resting on every government, when it is guilty of a wrong, to make reparation. Exemption from suit does not necessarily imply exemption from liability. Here Congress gave the courts jurisdiction to determine whether a wrong had been done, and, if so, to award compensation in money by the payment of the cost of what had been improperly required. In our opinion Congress did no more than it was authorized to do, and there is no liability resting on the United States to answer in damages.

It is next insisted that by the terms of the statute authorizing the suit the liability of the United States is established, if it shall be determined that the bridge, as far as it had progressed, was 'constructed so as to substantially comply with the provisions of law relating thereto.' We do not so understand the statute. The language is as follows: 'Full jurisdiction is hereby conferred upon said court to determine: first, whether the bridge, according to the plans on which it has progressed, at the passage of this act, has been constructed so as substantially to comply with the provisions of law relating thereto; and, second, the liability of the United States, if any there be, to the said company, by reason of the changes by this act required to be made, and if the said court shall determine that the United States is so liable, and that said bridge was so being built, then the said court shall further ascertain and determine the amount of the actual and necessary cost and expenditures,' &c.

The rule of damages has been fixed by the statute. As to that the court has no discretion beyond ascertaining the excess of cost. But before damages can be given, it must appear both that the United States was, in law, liable, and that the bridge had been constructed in accordance with the requirements of the law, down to the time the change of plan was directed. That the liability of the United States was not made to depend entirely on the fact that the law in respect to the form of the structure had been complied with is apparent, because if such had been the intention of Congress it would have been entirely unnecessary to submit the second question for determination. But the second is as clearly submitted as the first. Damages are not to be given if either is found in favor of the United States. No matter whether the United States was, in law, liable or not, if the bridge had not been constructed so as substantially to comply with the law, there could be no recovery. That is expressly declared. If, however, it had been properly built, the determination of the question of legal liability became important, and that, in our opinion, depended entirely on the right of Congress, under the Constitution and laws of the United States, to require the change without making just compensation in money.

Decree affirmed.

MR. JUSTICE MATTHEWS did not sit in this case, nor take any part in deciding it.

MR. JUSTICE MILLER, MR. JUSTICE FIELD, and MR. JUSTICE BRADLEY dissented.