592
'82 1l'EDERALREPORTER.
success. . The property was situated in 'a mountainous region, far removed from transportatiOn facilities, and difficult of access. They closed dOwn their mills and suspended operations 'for several years, but they never abandoned the property which they acquired. They always asserted a title and claim thereto, and always had an agent or watchman in charge thereof. Under these circumstances, I am of opinion that a fair, just, and liberal construction ought to be given to the'provisions offue statutes of this state which express a clear purpose to protect the settlement, buildings, and improvements of all parties in their possessory' rights; and, when such construction is giyen, it follows that the acts performed by the defendant brought it within the protection of the statute. The possession of the defendant having been acquired, kept up, and maintained in good faith, with fun knowledge of the facts upon the part of the plaintiff, it cannot be devested of such rights because it did not avail itself of the privileges granted by the statute to apnly to the state, after the land was surveyed, and make the daim of a preferred right to purchase the same. Nickals v. Winn, 17 Nev. 189, 195,30 Pac. 435, and authorities there cited; Stewart v. Doll, 18 Land Dec. Dep. Int. 309; Ohapman v. Toy Long, 4 Sawy. 28, 35, Fed. Cas. No. 2,,,10. Upon all the facts established by competent evidence in this case, it cannot, under the repeated decisions of both national and state courts, be successfully maintained that the land in controversy in this case was "unappropriated, public land" at the time of its selection by the state, or at the date when it was listed to the state, or that it was not "in the actual, adverse possession' of another" at the time Morrison made his application to. the state. to purchase the 40-acre tract. In addition to, the authorities hereinbefore referred to, see U. S. v. Williams, 12 Sawy. 138, 30 Fed. 309; Id., 138 U. S. 514, 11 Sup. Ct. 457, and authorities there cited. Judgment is ordered to be entered herein, in accordance herewith, in favor of the defendant, for its ", costs. UNITED S'.rATES v. CITY OF MOLINE.1
(District Oourt, N. D. illinois. July 3, 1897.) 1. NAVIGABLEWATE1{S-PowER of CONGRESS TO REMOVE OBSTRUCTION. , . When congtess has assumed jur\sdictlon over a navigable river lying wholly within one state, congress haS power to order obstructions to JlJl.vigation rem()ved, even thougl:} their construction was authorized by such , state. ' "
2.
When a bridge over a navigable river Is aUt'horlzed by a state legislature, reserving a right to require aciraw In the bridge on a certain contingency, congress, on assuming control of the river, may require the construction of a draw In the bridge upon the happening of such contingency, without , providing for co,npensation to the bridge owners.
SAME-BRIDGES-EMINENT DOMAIN.
d. BRIDGES.
LAW -
DELEGATIN'G LEGISLATIVE AND JUDICIAL POWERS, i
Act Dong; Sept. 19, 1890" § .4, authorizing the secrptary of war to give notice for the .alteration of bridges that he believes to be unreasonable 1
Reported by· Louis Bolsot, Jr., Esq., of the C1l1cago bar.
UNITED STATES V. CITY OF MOLINE.
593
obstructlOJUl to navigation, and empowering the district attorney w prosecute parties refusing to comply with suCh notice, Is not unconstitutional, as vesting the secretary with either judicial or legislative powers.
At Law. On motion to quash information. Information against the city of Moline for obstructing a navigable water way. John O. Black, U. S. Dist. Atty. S. W. Odell and W. R. Moore, for defendant. GROSSCUP, District Judge. The information, read in connection with the plans for the· building of the Illinois & Mississippi Canal, shows that it is the purpose of the United States to construct a canal from the Illinois river, at or near the town of Hennepin, to the Mississippi river, at or above the mouth of llilck river, together with the necessary feeders thereto; that at Milan, about five or six miles below what is known as the "Moline Bridge," to a point about five or six miles above this bridge, the proposed canal is to follow the bed of and use Rock river as a part thereof; that Rock river is situated in the state of Illinois, within this district, and is a navigable water way of the United States; thatthe bridge known as the "Moline Bridge," and owned and controlled by the city of Moline, is now, and will be when said canal is finished, an unreasonable obstruction to the navigation of said water way; that the secretary of war, in pursuance of statute, has notified· the city of Moline so to alter the bridge by putting in draws, etc., as will make said river at said point practically navigable; that the period for making such changes has passed, and the city of Moline still neglects and refuses to conform to the requirements of such notice and order of the secretary of war, and continnes to maintain such obstruction, whereby its acts in the premises are a misdemeanor, under section 5 of the act of September 19, 1890. The motion to quash necessarily admits the truth of the averments of the information. The city, by its counsel, in effect contends: First, that the river in question is wholly within the state of Illinois, and has never been declared, by the government of the United States, to be a navigable stream; second, that the bridge in question was lawfullY authorized .by the legislature of Illinois, is the lawful property of the city of Moline, and cannot be taken or injured by the government of the United States without just compensation; third, that the proceedings of the secretary of war giving rise to this information are in pursuance of a statute unconstitutional, and therefore void. Many statutes of the. state of Illinois providing for and authorizing dams and bridges across Rock river are exhibited by counsel in support of this contention, and have been jUdicially taken notice of in the disposition of this motion. . The constitution confers upon congress the exclusive right to regulate interstate commerce. A water way like Rock river, emptying into the Mississippi river, though lying wholly within the state of lllinois, is, if navigable, one of the highways of interstate commerce. It leads, with its connections, from points within Illinois to points jIl other states, and is thus a part of the water way which, as an entirety, 82F.-38
594
82
FEDERALI'tEPORTER.
in many states, and carries the Mm:nrerceofmany ,to such' a:.water way, in the 'f:ice of a date of congress that the river shall be used as one of its intersfate water ways, is open to removal by the proper authority of the United States goverwnent. The fact that the state may have authorized the structure is of no avail from the moment that the government of the United States determines to employ the river as such an interstate . highway. Has congress indicated such a purpose? The act of 1888 provides for the location of a canal from the Illinois river, at or near the town of Hennepin, to the Mississippi river, at or near the mouth of Rockriver,to be 80 feet wide at the water line,and to have a depth of not less than 7 feet of water, with locks, feeders, etc., and that the secretary of war shaH cause to be made and submitted to congress detailed plans and estimates for such construction. In pursuance of this act the canal was, by the secretary of war, duly located, and detailed plans and estimates for its construction submitted, which plans and estimates included the use of Rock river, averred by the information to be navigable, from a point five or six miles below the bridge in question to a point five or six miles above. FoHowing this action of the war department, the congress of 1889-90 passed an act authorizing the secretary of war to construct the canal upon the plans and specifications submitted, with power to make certain alterations in respect of the locks and feeders, and with the necessary powers of'eminent domain. FoHowing this, the congress of 1891-92 made-appropriations for the construction of such canal, and the acquirement of right of way; and every congress since has; continued such appropriations. These acts clearly indicate a defined purpose upon the part of congress, as far back, at least,as 1889 or 1890, to use Rock river for a distance of several miles above and below the bridge in question as a part of the proposed water way. As a navigable water of the United States, congress had, at any time, the right to enter upon its improvement; and the plans adopted by congress in effect adopt the river, for the distance nointed out, as a part of the proposed water way. The acts of congress, read in connection with the plans and specifications of the war department upon which the acts proceed, look to a navigable water way from the Illinois river to the Mississippi, and utilize towards that end so much of the Rock river-a -stream admittedly navigableas seems best adapted to that The improvement, therefore, is, in effect, an improvement in the navigability of the river. The effect of all these acts is that congress has taken into its jurisdiction, as one of the navigable waters of the United States, that portion of Rock river where this bridge is located, intending thereby to make it a part of the· proposed water way ;froID' the lllinois river to the Mississippi river. From the moment of such a declaration, the power of congress oyer the portion of the river designated is supreme. Any obstructions, however authorized by the state law, must yield to this snperior authority. But the right of congress to remove the obstruction does not, of . itself, exempt, the government of the United States from the duty of making just compensation' for such property rights. as are taken.
595
Monongahela Nav. Co. v.. U. S., 148 U. S. 312, 13 Sup. Ct. 622. The right of congress to interfere with such property rests simply upon its power to regulate commerce. It has no other right touching such property. But, says Justice Brewer, for the supreme court, in Monongahela Nav'. Co. v. U. S., supra: "Like the other powers granted to congress by the constitution, the power to regulate commerce is subject to all the limitations imposed by such instrument, and among them is that of the fifth amendment we have heretofore quoted. Congress has supreme control over the regulation of commerce; but if, in exercising that supreme control, it deems it necessary to take private property, then it must proceed subject to the limitations imposed by this fifth amendment, and can take only on payment of just 'l'he power to regulate commerce is not given in any broader terms than that to establish post offices and post roads; but, if congress wishes to take private property upon wnich to build a post office, it must e.ither agree upon the price with the owner, or in condemnation pay just compensation therefor."
The inquiry, then, is: Has the city of Moline a property right in this bridge inconsistent with the control to be taken by congress, and the changes made in consequence thereof? If so, compensation must be first made. The ownership of the city of Moline is as successor to the Moline & Rock River Plank. & Macadamized Road & Bridge Company, which company was, on the 14th of February, 1855, authorized to build a toll bridge across Rock river at the point where the bridge in question crosses the river. The franchise thus granted was purchased by the city of Moline May 6, 1876. This act of the legislature provided that a draw should not be required in such bridge until such time as the legislature should require draws to be placed in the Chicago & Rock Island Railroad Company's bridge and the Rock Island & Camden Railroad Company's bridge,-the first l(){;ated about eight miles above the Moline bridge, and the other at Milan, several miles below. Now, it seems to me that this franchise to the bridge company clearly contemplated that Rock river might, at some time in the future, be used for the purpose of practical navigation, and that, when that time came, the bridge company should so readjust its structure, without cost to the state, as to make it adaptable to such navigation. The company was exempted from such readjustment only so long as the two railway bridges-the one above and the other below-enjoyed a like exemption. The franchise was unquestionably accepted with reference to this possible changed use of this river in the future, and with equal reference to the duty of the company to change its bridge accordingly, without further compensation, when that time came. The implied stipulation to change the structure without compensation was a part of the terms on whioh the franchise was granted. Unquestionably, the legislature of Illinois could, without compensation, have required the construction of a draw at the time that a like draw was required of the two railway companies. The proceedings to change ,the use by the construction of the draws both here and at the railway bridges are under acts of congress instead of the legislature of the state. It is true that at the point where the railway bridges cross the river the proposed water way is not in the bed of the river, but at one side. But this can make no difference in the substance of the requirement. It is true, also, that because the water wav
596
82 FEDERAL REPORTER.
is not in the bed ofthe river the railroads will be compensated for such draw. Butthere is no provision in the franchise to the bridge company providing that it shall receive like compensation, or that the draw shall not bereqnired until a draw without compensation of the two railway companies. It is true, also, that the government of the United States, not the legislature of Illinois, is the power that commands this change. This,literally, is a variance from the terms of the franchise. But the actin question must be considered upon no such narrow lines. It contemplated simply immunity from change in the matter of the draw until the river was needed for navigation, and it is immaterial whether that need is now declared by the legislature of the state or the government of' the United States. The real substance of the contract betwe,en the bridge company and the state was that the company should have the right to erect, control, and use the bridge as a toll bridge, without interference in the way of putting in, compulsorily, a draw, until,under the acts of some authority competent to act, the river should be employed for the purposes of practical navigation. The provision looked towards ultimate improvement of the river's navigability; and that such improvement might come at the hands of the nation was certainly contemplated. The only interis this compulsory conference with the bridge proposed by struction of a draw,-a right clearly reserved by the legislature of Illinois in granting the franchise. Congress, in effect, proposed to take, for the purpose of making the river navigable, only what the legislature of Dlinois could, under the literal terms of its contract with the company, have taken for the same purpose. Such a reservation in favor of the state of Illinois inures, in my judgment, to the nation, when the authority of the United States is exercised for the same purpose. But it is contended that the proceedings of the secretary of war under the fourth section of the act of September 19, 1890, are invalid, because such section is unconstitutional. The section provides that, whenever the secretary of war shall have good reason to believe that any bridge now constructed over any navigable water way of the United States is an unreasonable obstruction to the free navigation of such waters on account of insufficient height, width of span, or otherwise, it shall be his duty, first giving the parties reasonable opportunity to be heard, t6 give notice to the person owning or controlling such bridge so to alter the same as to render navigation under it free, easy, and unobstructed, and in giving such notice to specify the changes required to be made, and prescribe a reasonable time in which to make them. If, at the end of such time, the alteration has not been made, the district attorney for the proper district is empowered to bring the criminal proceeding here instituted. U. S. v. Keokuk & H. Bridge Co., 45 Fed. 178, was a case where a bridge had been built and maintained in accor>dance with the requirements of the act of congress across the Mississippi river at Keokuk. The secretary ofwal' declared that, by reason of its location,it rendered, at certain stages of the water, navigation over the Des Moines rapids through the west draw difficult, and ordered that it be so altered as to render navigation through or under it free, easy, and unobstruct·
597
ed. On demurrer to the petition,Judge Shiras held that, the present status of the bridge having been fixed by act of congress, and the bridge being, therefore, a lawful structure, it was not within the power of congress to delegate to the secretary of war power to change such status; but that such power of change, whatever it might be, was exercisable only by congress itself. U. S. v. Rider, 50 Fed. 406, was a case where the county commissioners of Muskingum county, Ohio, were notified by the secretary of war to change a bridge then being over the Muskingum river, a navigable stream of the United States, so as to provide a draw span in said bridge whereby free navigation of the river could be obtained. Judge Sage held the notice given to have been unreasonable, and, further· commenting upon the case, expressed his concurrence in the conclusion of Judge Shiras in U. S. v. Keokuk & H. Bridge Co., supra, to the effect that conwess could not delegate, as it had undertaken to do, its authority in the mattel' under discussion to the secretary of war. These two cases are the only adjudications I know of upon the constitutionality of this statute. In Lake Shore & M. S. R. Co. v. Ohio, 165 U. S. 365,17 Sup. Ct. 357, the supreme court, having under consideration a similar case, expressly passed, without deciding, the question whether congress could lawfully delegate to the secretary of war all its powers to authorize structures of every kind over all navigable waters. I have already held, for the purposes of this motion, that Rock river, at the point under consideration, is, in fact, a navigable stream; that congress has, by the acts, beginning in 1888, relative to the Illinois & Mississippi Canal, assumed jurisdiction Mauch stream from the point below the bridge to the point above the bridge, between which the canal uses, for its purpose, the river; that through that space of the river the proposed government work is, in effect, an improvement of the navigation of Rock river; that the bridge of the city of Moline over the river is unprovided with a draw, and is, in such condition, palpably, an obstruction to· the navigation of the stream; that the necessity of a draw was recognized with the increase of navigation of the river, and the right to impose it in the act of legislature creating the bridge franchise. Now, if congress can constitutionally authorize any of its executive officers to deal with a case like this, whereby the obstruction may be removed,and the water way opened up, without having first passed an. act specifically applicable to the given obstruction, these proceedings ought to be maintained. It will be observed that the power claimed in this instance is not to either authorize the building ofa bridge, or ordering its construction, thereby drawing with it the decision of what streams congress either takes or surrenders jurisdiction over. The power claimed is, in effect, an incident only to the execution .of the larger purpose of congress respecting Rock river, and administrative of that purpose. It is one of the essential administrative acts towards carrying out the special acts of congress, to the effect that through this river, at this point, there shall be a waterway having capacity for vessels of at least 280 tons burden. The bridge, during the time of its present construction, is an effectual obstruction to such water way. If congress can, · by special act, constitutionally endow the arm of the secretary of war
598
. power to remove ever;ything that lies in or acrosS that river obstrw;:tive to the prqposeq water. way, .why may it not grant such po,wer, With equal efl,kacy, by act applying to all cases as they adse? Whether the ,act conferring the power be special or general, war department becomes simply the arm that carries ollt the will. It is true that this involves decision of the department, bu,t the department can in no, instance be an effective, and at the bame·time an insensate and unjudgip.g, executive. instrument. In undertakings of this character the directions cannot be socotIlpletely fOl'edrawn by congress that there will be left no questions to ,the admini,strative mind to decide. The test of the delegation of power is, not that the administrator must legality of himself decide questions as they arise, but, are the questions thus presented essentially judicial ?: . In this case, two questions alone arise: First. Is the bridge an obstruction to navi@.tionZ Second. Is it there by any such legal . right that the gQvernment may not interfere with it in the respect designated without just compeJ+sation? The first question is purely administrative, I;lJld is one thatcongI;ess can certainly delegate to the secretary Of war. A thousand questions of equal moment to the parties interested, and of equal difficulty, are necessarily delegated to the great departments of the government every month. In the very nature of things, congress cannot of them. A government of the size of this, operated upon ,BiUch a conception, would be clogged immediately. The second question is, undoubtedly, judicial, and for that very reason is not subject, constitutionally, to the decisiOn of congress any more than of the secretary of war. If the bridge be there by legal right,..,--if it be a franchise or property that cannot be taken except after just compensation,-congress is powerless, either by special or general acts, to touch it. In the face of such property right, congress is as helpless as the war department. In the end, such right, whether it be attacked by special act of congress, or by some action of the war department, will, through some channel, find an appeal to the judiciary. This right ofappeal to the judiciary in all questions in their nature judicial is preserved in the sections of the statute under discussion. The. secretary of war has no power to carry out his decisions respecting these obstructions except through a court. Any question, whether of law or tact, essentially judicial, may be raised under these informations. A court of the United States stands always, by the clear· provisions of the act, between the decision of the secretary and its There is, therefore, in the act, no delegation of judicial power to the secretary that is not open to review in the courts. I hold, therefore, that the act, so far as it is applicable to the case in hand, is constitutional and valid, and the motion to quash will be overruled.
UNITED STATES V. NUNEZ.
UNiTED STATE'S v. NUNEZ et a1. (Circuit Court, S. D. New York. Kovember19, 1896.) NEUTRALITY LAWS-MILITARY EXPEDITIO'N AIDING CUBAN !NsURGEN'fS-REV.
The transportation of goods for commercial purposes only and the carriage of persons separately, though their individual design may be to enlist in a foreign strife, are not prohibited by our law if the transportation is. without any features,.of a military character. Indications of a military operation or of a military expeditioll are concert and unity of action, organizati9n of men to act together, the presence of weapons, a.nd some form of command or leadership. When these exist and are .known to the persons engaged in the transportation, all who knowingly aid in such for military purposes are liable under section 5286, Rev. St.
ST. § 5286.
Indictment for breach of section 5286, Rev. St. D. S., for setting on foot or providing the means for a military enterprise against Spain, and fitting out the steamship Laurada from the city of New York in aid of Cuban insurgents in May, 1896. The vessel left Philadelphia on the 8th day of May. She had several boats in her hold, and one on deck. She arrived in the city of New York on the Saturday following; cleared at tJhe custom house the same afternoon for Port Anto;nio, upon a manifest stating a few chairs and tables as cargo, and sailed for Montauk Point at the east end of Long Island. The same night two lighters were loaded with arms, ammunition and men at pier 39 East river and at Astoria in the East river, and were thence towed to Montauk Point, where the men and arms were transferred to the Laurada, which then proceeded directly to Cuba, where the men and arms were secretly landed. On the voyage the boxes of arms were opened, and the men were supplied with arms. and drilled. Gen. Ruiz went on board the Laurada in the harbor of New York in company with the defendant Nunez, and continued on board and was landed with the expedition in Ouba. Nunez left the Laurada at MontaUk Point lUld returned to this port by olle of the tugs that had towed down the lighters. At Montauk Point, where. the men and arms were transferred to the Laurada, her firemen and crew struck and refused to work. The tug containing Nunez was calle(l back and the captain of the' Laurada reported to him their refusal to proceed witllout further pay "if the expedition meant Cuba"; whereupon $100 was given to the captain for them, either by Nunez or a ,companion, upon which the Laurada proceeded. Nunez proceeded to Charleston where he was awaiting the return of the Laura.da from Cuba. " '
.
,
Wallace Macfarlane and Jason Hinman, for the United States. Gen. Tracy, for defendants. BROvVN, District Jndge (after stating tqe facts as above).. As has been rightly stated to you, gentlemen, by counsel, this is a case of lllore than usual interest and importance; because it not only affects as' has been said the individual defendants and their relations perhaps to a few persons, but it involves also indirectly international relations. The series of laws or enactments of which the statute under which this indictment is framed is one, known usually as the "Neutrality Laws," were enacted long since, and substantially in the same form in which they exist to-day, during the adD;l.inistration of Washington in 1794. These enactments pretty much coyered what it was considered necessary to provide in order to prevent entanglements this governmentand foreign powers, by prohibiting expeditions from cquntry interfering with belligerents, or with the relations between 1l.IUother