Page:Federal Reporter, 1st Series, Volume 10.djvu/528

616 FEDERAL REPORTER. �exercise of the power of congress to regulate commerce. South Caro- lina V. Georgia, 93 U. S. 4, 12. �Judge Johnson held that the authority of the act of congress had been pursued. He overruled the objection that the notice to the company was not under the hand of the secretary of war himself, and held that, as the secretary had approved in writing, under his own hand, of the plan of the bridge, it was sufficient for him to direct notice of such approval to be given to the company. I ooncur in these conclusions. �The bridge has been constructed in accordance with the plans and terms approved by the secretary of war. By the act of the legisla- ture of New York passed May le, 1875, (Laws of New York, 1875, p. 290,) the bridge in its entirety, as then contemplated,was declared to be a public work, and the state of New York gave its sanction to it. �In the case of People v. Kelly, 76 N. Y. 475, the court of appeals of New York held that congress could authorize the construction of this bridge, although it would, to some extent, interfere with naviga- tion ; that the determination of congress as to the extent of the in- terference which would be permitted was conclusive ; that congress might devolve upon the secretary of war the power to approve or pre- scribe the plan for the bridge ; that the provisions of the act of con- gress in this case were within the powers of congress ; that the sec- retary of war could convey the notification in any way which would be effectuai; and that the notice given in this case, through one of his subordinates, was sufficient. A point was taken in that case, as it is now taken in this, that congress could not devolve on the secre- tary of war the power which it did. On that subject the court of appeals said : �"Congress, in the exercise of its power to regulate commerce aiid naviga- tion, could itself approve the plan of the bridge, or it could presciibe a mode in which it could be done. Hence. it was competent for it to devolve upon the secretary of war the power to approve or prescribe the plan for the construc- tion of the bridge. By so doing it did not abdieate its power, but provided an agency, as it does in most other cases, for the complete and practical exercise of its power; and it still retained control of the whole subject, by the power expressly reserved, at any time to alter, amend, or repeal the act." �These views are sound and controlling. In the same case the court of appeals said : �"After the passage of the act of 1875 it was no longer necessary so to con- struct the bridge as in no degree to obstruct the free and common navigation of the river, as required by the act of 1867. At the time of the passage of the ��� �