MR. JUSTICE MILLER.
I dissent from the decree of the court in this case, and as I cannot agree to all the grounds on which my brother Field dissents, I will state very briefly the reasons which have seemed to me to require the reversal of the decree of the Circuit Court.
Congress gave its assent in the most solemn form, by the resolution of 1869, to the erection of a bridge over the Ohio River by the appellant company, the character of which was described in the resolution. It reserved the right to withdraw the assent thus given in case the free navigation of the river should at any time be substantially and materially obstructed by any bridge to be erected under the authority of this resolution, or to direct necessary modifications and alterations of said bridge. The Circuit Court finds that up to the third day of March, 1871, the bridge company had proceeded in the erection of their bridge, 'in all respects constructing the same so as substantially to comply with the provisions of the law relating thereto.'
On that day Congress passed the act under which this suit is brought; and it is upon the construction of this act in connection with the resolution of 1869 that the decision of this case must turn.
It will be observed that the resolution reserved to Congress a right to interfere and assert its power only in case the bridge of the appellant should at any time substantially and materially obstruct the free navigation of the river; and, in that event, the reservation was that Congress might withdraw the assent so given to the erection of the bridge, or direct the necessary modifications and alterations of said bridge. It is not necessary to inquire whether Congress could do both these things or not, for it did not, as I understand the language of the act of March 3, 1871, c. 121, withdraw or intend to withdraw its assent previously given.
It did exercise the alternative power given by the joint resolution, and 'direct the necessary modifications and alterations of said bridge.'
The legislation by which this is done is the fifth and last section of an act making appropriations for the service of the Post-Office Department.
It is important to observe that it contains no declaration that the bridge, as then constructed in process of construction, would either partially or substantially obstruct the navigation of the Ohio River, nor does this court base its decree on the existence of that fact. Nor do counsel in the argument before us insist that this proved, or that it was a necessary condition to the exercise of the power which Congress assumed in passing the statute requiring alterations in construction of the bridge, costing over $200,000.
Why did not Congress declare as a reason for the exercise of this power that the bridge as originally authorized by it was or would be an obstruction to navigation? and why did it not content itself with making that declaration and withdrawing its assent, as it would then have a right to do?
The best answer to this question, the most reasonable one to be made, and the one most consistent with the evidence in this record, is that either the fact did not exist, or was not so apparent, that Congress was willing to found any action on it.
But Congress, with this view of that question, and entertaining also a just view of its powers and obligations as regards the appellant and the bridge, determined to exercise such power as it had, for the purpose of changing the structure from a drawbridge, to a bridge so high above the water that no draw was necessary.
It did this; but in the same section which prescribed this change and forbade the company to proceed in any other mode of construction, it provided equitable relief for the injury which this somewhat arbitrary act of power inflicted on the Bridge Company.
I repeat that it was competent for Congress to have declared that the bridge, as it was in process of construction, had proved to be a substantial and material obstruction to the free navigation of the river, and for that reason the assent of Congress to its erection was withdrawn. Or that it would be such an obstruction unless certain modifications of the plan were made, which Congress could prescribe, and require them to be made. But it did neither. It based no action on the assumption that the bridge was or would be an obstruction to navigation; but it determined to change the bridge from a low bridge with a draw, to a high bridge without a draw. The difference in these two is well known to every one who has travelled over our Western rivers, and I myself am familiar with no less than ten drawbridges across the Mississippi built under acts of Congress, which are not substantial or material obstructions to the navigation of that great river.
Congress, therefore, never intended to act on the reservation contained in the resolution. No reference is made to that resolution in the act of 1871 requiring this total change of plan.
Nothing is more reasonable, therefore, than that Congress, resorting its high prerogative of requiring a structure which would not only be no substantial or material obstruction to navigation,-words well understood,-but one which would impose no delay in passing it, nor interfere in the slightest possible manner with navigation, should see that equity and justice required compensation for the loss inflicted by this change.
It did see this, and provided for the situation. Until the structure was completed, no one could tell the cost of the changes required. When completed, the safest tribunal, as Congress thought, to determine this was a court. And that the court might not be restricted by the rigid rules of a court of law, it referred the matter to a court of equity, with instructions to proceed as in other cases in equity. It required the court to determine 'the actual and necessary costs and expenditures reasonably required to be incurred in making the changes ordered,' and it instructed the Secretary of the Treasury to pay the amount so found.
It required the court to ascertain, 'first, whether the bridge, according to the plans on which it has progressed at the passage of this act, has been constructed so as to substantially comply with provisions of law relating thereto.' The court found that the bridge was in conformity to law, including, of course, the joint resolution giving the assent of Congress. 'Second, the liability, if any there be, of the United States to said company by reason of the changes by this act required.'
The whole argument of the opinion of the court is founded on the potentiality of this, 'if any there be.' And the whole scheme and purpose of the joint resolution, its assent with qualified power of withdrawal, the failure of Congress to declare the existence of the condition on which this right of withdrawal was to be exercised, the fact that the law required the court to find whether the appellant had proceeded according to law, and that the court found it had so proceeded; the great loss which the appellant was compelled to bear, and the reference of the whole matter to a court of equity, are all ignored, that we may throw ourselves back on the general and absolute power of Congress, over navigable waters, to defeat this eminently just claim for losses, growing out of the exercise of that power. It is impossible for me to believe that Congress went through all this tedious legal machinery to have the court decide upon its right to exercise such a power without responsibility. It is not the habit of that body to refer intentionally the question of its constitutional power to the courts of the country.
Nor is such construction of the words 'if any there be' necessary. There were two contingencies in which Congress might have acted, as it did, without incurring any just obligation to make compensation. One of these was that the bridge might not have been built in conformity to the terms of the joint resolution, and in that event the company was in no condition to complain of the action of Congress requiring a change. The act required this fact to be ascertained by the court, and it evidently meant that no damages should be awarded unless it was found that the law was complied with.
Congress might, also, while declining to ascertain for itself whether the bridge, as authorized, was likely to prove a substantial and material obstruction to navigation, have made compensation for the change they ordered to depend upon the existence or non-existence of that fact, nd left it to the court to determine.
This court refuses to inquire into this latter question, and notwithstanding the fact, which the court was expressly required to find, is found in favor of the appellant, it proceeds on what I think is a fallacious view of the statute, namely, that Congress intended to refer to the court the question of its constitutional power to change the character of the bridge, and it decides in favor of that power, thus disregarding the whole structure of the two acts on which the right to compensation is based.
I think Congress intended to waive that question, and in favor of justice and fair dealing to pay for the losses incurred under the very act which gave the compensation, if it was found that the bridge, as far as it had progressed, was in conformity to law, and would not be a substantial and material obstruction to navigation if completed on that plan.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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