Page:Federal Reporter, 1st Series, Volume 6.djvu/348

 836 FEDBBAIi BEPOBTEB. �longer as necessary, and that the defendant is not JuBtified thereby in building a bridge with a draw of only 100 feet, if that would materially interfere with the navigation. But if the construction cl^imed by the defendant is the correct one, it cornes to the same thing in the end. The legislature of the state bas not the power to say absolutely that a bridge may be built with only a draw of 100 feet, for if such a bridge interferes materially with the free navigation of the river, the act authorizing it is void, as being in conflict with the paramount law of congress deelaring the river a free and common highway. Therefore it is that a bridge ought not to be attempted to be built across such a water as this, where 80 many and valuable interests are involved, without the sanction of congress, given through the engineer department. The proper location and elevation of a bridge across the river at this place, and the length and place of draw, — ail the circumstances considered, — are questions that more properly pertain to the political than the judicial department of the government. �There the matter may be "equitably adjusted," so to speak, according to the circumstances of each case. Here, the court can only ascertain whether the proposed structure inter- feres materially with the free navigation of the river, and if it does, it must declare it unlawful. �Accordingly, within the past 15 years, congress has been indueed to legislate generally and specially upon the subject of bridges across the Mississippi and its tributaries. By the act of December 17, 18I2, (11 St. 398,) it is provided that no bridge can be built across the Ohio river without comply- ing with the directions of that act, one of which is that every bridge below the suspension one at Cincinnati shall have a high span of 100 feet above low water, with a spaee of 400 feet between the piers, and a pivot draw, with two elear openings of 160 feet each; and by act of April 1, 1872, (17 St. 44,) a railway bridge was authorized across the Mis- sissippi, near Clinton, lowa, with a draw of not less than 160 feet, — ^the same to be looated, built, and kept subject to the directions of the secret9.ry of war for the security of naviga- ��� �