this act many of these cases were appealed In the opinion (page 477, L. ed. page 1052, to this court, which affirmed the judgments. Sup. Ct. Rep. page 734) we said: Stephens v. Cherokee Nation, supra. On March 21, 1902, an agreement was made between the United States and the Choctaw, this court, was invalid because retrospective, and Chickasaw Nations, which was confirmed by act of Congress July 1, 1902 (32 Stat. at L. 641, chap. 1362). This agreement and act were substantially that a court known as the Choctaw and Chickasaw citizenship court should be created, and that that court should have power, in a suit in equity brought by either or both of these tribes against any ten persons who had been admitted to citizenship or enrolment by the terms of the judgments of the several United States courts in the Indian territory, as representatives of all persons similarly situated, to determine whether the judgments of those courts should be annulled on account of certain alleged irregularities. The agreement and act also provided that, in case the citizenship courts should decide that those judgments should be annulled the papers in any action in those courts, wherein such a judgment had been rendered, should, upon seasonable application of either party, be transferred to the citizenship court, which should proceed to a hearing and determination of the question of citizenship. Under this agreement and act the court was established and test suit brought, in which a decree was entered to the effect that the judgments of the United States courts in the Indian territory, whereby persons were admitted to citizenship in the Choctaw and Chickasaw Nations under the act of June 10, 1896, were annulled and vacated. Hill was not named a party in that test suit, nor did he thereafter apply for a transfer of his case to the citizenship court. The above statement of facts is sufficiently full for an understanding of the single question presented for determination. That single question may be divided into two. First, was the decree in the Indian territory court declaring Hill a citizen a finality, beyond the power of Congress to in any manner disturb? This was answered in the Stephens Case, supra. In that case we held that Congress could authorize a review of the judgments of the United States courts of the Indian territory in citizenship cases, and this although, by the terms of prior legislation, those judgments had become final. While sustaining the act authorizing such review and providing for appeals to this court, we construed it as limiting the appeals to the question of the constitutionality or validity of the legislation, and not as bringing before us the facts in the instances of all applications for citizenship. "The contention is that the act of July 1, 1898, in extending the remedy by appeal to an invasion of the judicial domain, and destructive of vested rights. By its terms the act was to operate retrospectively, and as to that it may be observed that while the general rule is that statutes should be so construed as to give them only prospective operation, yet, where the language expresses a contrary intention in unequivocal terms, the mere fact that the legislation is retroactive does not necessarily render it void. "And while it is undoubtedly true that legislatures cannot set aside the judgments of courts, compel them to grant new trials, order the discharge of offenders, or direct what steps shall be taken in the progress of a judicial inquiry, the grant of a new remedy by way of review has been often sustained under particular circumstances. Calder v. Bull, 3 Dall. 386, 1 L. ed. 648; Sampeyreac v. United States, 7 Pet. 222, 8 L. ed. 665; Freeborn v. Smith, 2 Wall. 160, 17 L. ed. 922; Garrison v. New York, 21 Wall. 196, 22 L. ed. 612; Freeland v. Williams, 131 U. S. 405, 33 L. ed. 193, 9 Sup. Skinkle, 140 U. S. 334, 35 L. ed. 446, 11 Ct. Rep. 763; Essex Public Road Board v. Sup. Ct. Rep. 790. "The United States court in Indian territory is a legislative court and was authorized to exercise jurisdiction in these citizenship cases as a part of the machinery devised by Congress in the discharge of its duties in respect of these Indian tribes; and, assuming that Congress possesses plenary power of legislation in regard to them, subject only to the Constitution of the United States, it follows that the validity of remedial legislation of this sort cannot be questioned unless in violation of some prohibition of that instrument. "In its enactment Congress has not attempted to interfere in any way with the judicial department of the government, nor can the act be properly regarded as destroying any vested right, since the right asserted to be vested is only the exemption of these judgments from review; and the mere expectation of a share in the public lands and uted, if the applicants are admitted to citimoneys of these tribes, if hereafter distribzenship, cannot be held to amount to such an absolute right of property that the original cause of action, which is citizenship or not, is placed by the judgment of a lower court beyond the power of re-examination by a higher court, though subsequently authorized by general law to exercise jurisdiction." This decision established that no such afterwards. But in principle there is no difference between these two special jurisdictions created by acts of Congress for special purposes, and neither of them possesses judicial power in the sense in which those words are used in the Constitution. The circumstance that one is called a court and its decisions called judgments cannot alter its character nor enlarge its power. Congress cannot extend the appellate power of this court beyond the limits prescribed by the Constitution, and can neither confer nor impose on it the authority or duty of hearing and determining an appeal from a commissioner or auditor, or any other tribunal exercising only special powers under an act of Congress; nor can Congress authorize or require this court to express an opinion on a case where its judicial power could not be exercised, and where its judgment would not be final and conclusive upon the rights of the parties, and process of execution awarded to carry it into effect." vested right was created by the proceedings | priation afterwards made. In the case beof the Dawes Commission or the judgments fore us the validity of the claim is to be of the courts of the Indian territory on ap- first decided, and the appropriation made peal from the findings of the commission as prevented subsequent investigation. The power of Congress over the matter of citizenship in these Indian tribes was plenary, and it could adopt any reasonable means to ascertain who were entitled to its privileges. If the result of one measure was not satisfactory it could try another. The fact that the first provision was by an inquiry in a territorial court did not exhaust the power of Congress or preclude further investigation. The functions of the territorial courts in this respect were but little more than those of a commission. While the act of July 1, 1898, provided for an appeal to this court, and appeals were taken in many cases, yet our inquiry stopped with the question of the constitutionality of the legislation. In other words, we entertained and decided the purely judicial question of the validity of the means Congress had adopted for determining the matter of citizenship. We did not attempt to pass upon the question of citizenship in any particular case, nor determine whether the applicant was or was not entitled to be enrolled as a citizen. It is unnecessary to consider what would have been the effect of a judgment of this court, a court provided for in the Constitution, on the question of the right of a litigant to citizenship. The distinction between this court and the courts established by act of Congress in virtue of its power to ordain and establish inferior courts is shown in Gordon v. United States, 117 U. S. 697, Appx. in which we held that while Congress could give to the court of claims jurisdiction to inquire and report upon claims against the government, it could not authorize an appeal from such report to this court unless our decision was made a final judgment, not subject to congressional review. In the opinion Mr. Chief Justice Taney said (pp. 699, 702): This decree was followed by legislation which, in a general way, provided that the rulings of this court on appeals from the judgments of the court of claims should be in effect judgments. While that case is not entirely parallel to this, yet the line of thought pursued in the opinion is suggestive. We do not feel called upon to enlarge upon it. It is enough now to hold that Congress, in giving to the Indian territory courts jurisdiction of appeals from the action of the Dawes Commission, did not place the decisions of these courts beyond the reach of further investigation. Hence the act of Congress of July 1, 1902, creating the Choctaw and Chickasaw citizenship court, and giving to it power to examine the judgments of the Indian territory courts, and determine whether they should not be annulled on account of irregularities, was a valid exercise of power. The other question is one of procedure, and not of power. It is objected that the defendant Hill was not made a party to the proceeding instituted in the citizenship court, but there were a multitude, according to the report of the Dawes Commission, probably one thousand, in whose favor judg "Congress may undoubtedly establish tribunals with special powers to examine testimony and decide, in the first instance, upon the validity and justice of any claim for money against the United States, subject to the supervision and control of Congress, or a head of any of the executive departments. In this respect the authority of the court of claims is like to that of an auditor or comp-ments of citizenship have been entered in troller, with this difference only: that in the latter case the appropriation is made in advance, upon estimates furnished by the different executive departments, of their probable expenses during the ensuing year; and the validity of the claim is decided by the officer appointed by law for that purpose, and the money paid out of the appro the Indian territory courts, and the act provided that ten should be selected as representatives of the class. It further authorized any individual, in case of an adverse judgment by the citizenship court, to transfer his case from the territorial to that court. Now, it is undoubtedly within the power of a court of equity to name as de 1899, § 18, requires to secure navigation against an unreasonable obstruction, is not a taking of private property for public use for which the Federal Constitution requires compensation to be made, but is merely inof its power to regulate commerce among cidental to the exercise by the government the states. I [No. 431.] February 25, 1907. IN ERROR to the District Court of the of Pennsylvania to review a conviction for fendants a few individuals who are in fact | the representatives of a large class having a common interest or a common right,-a class too large to be all conveniently brought into court, and make the decree effective not merely upon those individuals, but also upon the class represented by them. Mandeville v. Riggs, 2 Pet. 482, 7 L. ed. 493; Smith v. Swormstedt, 16 How. 288, 14 L. ed. 942; Bacon v. Robertson, 18 How. 480, 489, 15 L. ed. 499, 504; United States v. Old Argued December 5 and 6, 1906. Decided Settlers, 148 U. S. 427, 480, 37 L. ed. 509, 529, 13 Sup. Ct. Rep. 650. It was by way of extra precaution, and in order to more effectually secure the rights of the individuals other than those named as parties defendant in that suit, that Congress provided that anyone might transfer his individual case from the territorial court to the citizenship court, and there have the merits of his claim decided. Hill, as every other citizen, was bound to take notice of the legislation of Congress, and it is not to be doubted that he, as well as others similarly situated, was cognizant of the proceedings that were being had in pursuance of such legislation. He made no application to transfer his case, but chose to abide by the outcome of the case against the ten representatives of his class. The answers to these subordinate questions fully dispose of the main question. Without further discussion, we refer to the exhaustive opinion of Circuit Judge Sanborn, in delivering the judgment of the court of appeals, with which, in the main, we fully concur. We find no error in the record, and the judgment of the Court of Appeals is affirmed. See same case below, 143 Fed. 377. Assistant to the Attorney General Purdy for defendant in error. Mr. Justice Harlan delivered the opinion of the court: This is a proceeding in the nature of a criminal information in the district court of the United States for the western district of Pennsylvania against the Union Bridge Company, a corporation of Pennsylvania, owning and controlling a bridge across the Allegheny river near where it joins the Monongahela river to form the Ohio river,-the Allegheny river being a navigable waterway of the United States, having its source UNION BRIDGE COMPANY, Plff. in Err., in New York and being navigable in both V. UNITED STATES. Constitutional law-delegation of power. 1. Legislative and judicial powers are not unconstitutionally 'delegated to the Secretary of War by the provision of the river and harbor act of March 3, 1899 (30 Stat. at L. 1121, 1153, chap. 425, U. S. Comp. Stat. 1901, p. 3545), § 18, empowering that official, when satisfied, after a hearing of the parties interesteu, that a bridge over a navigable water way of the United States is an unreasonable obstruction to navigation, to require such changes or alterations as will render navigation reasonably safe, easy, and unobstructed.* New York and Pennsylvania. Stating the matter generally, the Secretary of War found the bridge to be an unreasonable obstruction to the free navigation of the Allegheny river, and required the Bridge Company to make certain changes or alterations in order that navigation be rendered reasonably free, easy, and unobstructed. These alterations, it was charged, the company_wilfully failed and refused to make. Hence the present information against it. There was a verdict of guilty, followed by a motion in arrest of judgment, which motion being overruled, the company was sentenced to pay a fine of $5,000. To Eminent domain-what is a taking-remov- review that order this writ of error is proseing obstruction to navigation-consequen-cuted. tial injury. The information was based on § 18 of the 2. The making of the alterations or river and harbor act of March 3d, 1899, changes in a bridge erected under the sanction of a state over an interstate water which provides: "That whenever the Secreway which the Secretary of War, acting tary of War shall have good reason to beunder the authority of the act of March 3, lieve that any railroad or other bridge now *Ed. Note.-For cases in point, see vol. 10, Cent. Dig. Constitutional Law, § 95. act of 1899 under which the present information was filed. It appears that the Bridge Company was incorporated by an act of the Pennsylvania legislature, approved March 13th, 1873, with authority to construct a bridge over the Allegheny river, in the city of Allegheny. That act contains this proviso: "That the erection of said bridge shall not obstruct the navigation of said river, so as to endanger the passage of rafts, steamboats, or other water crafts; and the piers shall not be so placed as to interfere with towboats proceeding out with their tows made up, and shall be constructed in such manner as to meet the requisitions of the law in regard to the obstructions of navigation." The bridge was constructed in 1874 and 1875, and has been in use since 1875. constructed, or which may hereafter be constructed, over any of the navigable water ways 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, or where there is difficulty in passing the draw opening or the draw span of such bridge by rafts. steamboats, or other water craft, it shall be the duty of the said Secretary, first giving the parties reasonable opportunity to be heard, to give notice to the persons or corporations owning or controlling such bridge, so to alter the same as to render navigation through or under it reasonably free, easy, and unobstructed; and in giving such notice he shall specify the changes, recommended by Chief of Engineers, that are required to be made, and shall prescribe in each case a reasonable time in which to make them. If, at the end In 1902 a petition was sent to the Secreof such time, the alteration has not been tary of War by persons, corporations, and made, the Secretary of War shall forthwith companies in and about Pittsburg, which notify the United States district attorney contained, among other things, these statefor the district in which such bridge is situ- ments: "There can be no doubt whatever ated, to the end that the criminal proceed- that this bridge is an unreasonable obstrucings hereinafter mentioned may be taken. tion to the free navigation of the Ohio, If the persons, corporation, or association Monongahela, and Allegheny rivers on acowning or controlling any railroad or other count of insufficient height and and the bridge shall, after receiving notice to that filling in of the river or rivers over effect, as hereinbefore required, from the which it it passes in order to provide Secretary of War, and within the time pre-approaches for it. We respectfully rescribed by him, wilfully fail or refuse to quest that you will investigate this matter, remove the same or to comply with the law- having full confidence that, after making ful order of the Secretary of War in the such investigation, you will find it to be premises, such persons, corporation, or asso- your duty to take action against its ownciation shall be deemed guilty of a misde- ers, the Union Bridge Company, under the meanor, and, on conviction thereof, shall be provisions of § 18 of the river and harbor punished by a fine not exceeding five thou-act, approved March 3, A. D. 1899. sand dollars; and every month such persons, corporation, or association shall remain in default in respect to the removal or alteration of such bridge shall be deemed a new offense, and subject the persons, corporation, or association so offending to the penalties above prescribed: Provided, That in any case arising under the provisions of this section an appeal or writ of error may be taken from the district courts or from the existing circuit courts direct to the Supreme Court, either by the United States or by the defendants." 30 Stat. at L. 1121, 1153, chap. 425, U. S. Comp. Stat. 1901, p. 3545. It was built of such a low height above the water as to cause the almost complete obstruction of all the packet and tow-boat trade passing from the Allegheny river into the Ohio and Monongahela rivers, and from these rivers into the Allegheny. In building it the width of the river was very material ly narrowed, as already stated, by the fills made for the approaches. The river commerce of Pittsburg, as you are aware, is of very great magnitude and importance, and last calendar year it amounted to 10,916,489 is rapidly increasing in volume. For the tons, being about equal to that of the har bor of New York. The extension of the Legislation similar in its general character manufacturing industries of Pittsburg up can be found in river and harbor acts passed the Allegheny river is making it of much at previous sessions of Congress. Act of greater importance than heretofore that the 1884 (23 Stat. at L. 133, 148, chap. 229, U. navigation to and from that river should S. Comp. Stat. 1901, p. 3532); act of April not be obstructed. The present time is pe11th, 1888 (25 Stat. at L. 400, 424, 425, chap. culiarly appropriate for action by you. The 860, §§ 9, 10); and act of September 19th, Union bridge is an old, wooden structure, 1890 (26 Stat. at L. 426, 453, chap. 907, §§ and will soon need-in fact, it already needs 4, 5). Finally, we have the act of March-extensive repairs to make it safe for pub23d, 1906 (34 Stat. at L. 84, chap. 1130, §§ lic use. Therefore, as the bridge in question 4, 5), which covers the same ground as the deprives the community of a reasonable use The matter was referred by the Secretary of War to the proper officers of the Engineer Corps of the Army for examination and report. Such examination was had upon notice to the Bridge Company, and, under date of December 8th, 1902, Capt. Sibert, cap tain of engineers, who conducted the examination, reported and recommended to the Chief of Engineers that the company be given notice to make certain alterations in its bridge. of the Allegheny river in connection with just being built, immediately above the the river business of this great harbor, we | Point bridge. It appears that this bridge appeal to you to exercise the powers com- was built in 1873, 1874 by the Union Bridge mitted to you to abate, or to at least miti- Company, incorporated under authority of gate, this great public nuisance, as you shall an act of the Pennsylvania legislature of find yourself justified by the law and the March 13, 1873, and that it has been the facts of the case." subject of complaint on the part of the navigation interests practically ever since its completion. Numerous investigations have been made by different engineer officers, who have held public hearings on the subject, and who have concurred in expressing the opinion that the bridge was an unreasonable obstruction to navigation, and that it should be raised so as to give a headroom equal, at least, to that of the aforesaid Point bridge at the mouth of the Monongahela river. The Union bridge is situated at the On December 16th, 1902, the Chief of En mouth of the Allegheny river, and there gineers transmitted that report to the Sec- seems to be no room for doubt that the alretary of War, saying: "As required by teration of the bridge is essential to the reathe law and the instructions of the War De- sonable use for navigation and commercial partment, a public hearing has been held, purposes of that portion of the river formafter due advertisement, and all interested ing a part of Pittsburg harbor. Captain parties have been afforded an opportunity Sibert recommends that the bridge in questo present their views. Attention is respect- tion be so altered as to give two navigable fully invited to the accompanying report on spans extending riverwards from the left the subject, dated the 8th instant, by Cap- abutment, of not less than 394 feet clear tain Sibert, and to its accompanying papers. width each; the second span from the PittsIn this report Captain Sibert fully discusses burg shore to give a clear headroom over all phases of the question, and shows that, the Davis Island pool of not less than 70 without reference to the use of the Alle- feet; and the first span from the same shore gheny river for through navigation, the to give a headroom of not less than 70 feet bridge in question is an unreasonable ob- at the pier and 62 feet at the abutment; struction, and practically a bar to the use also that the piers of the altered structure of that portion of Pittsburg harbor situated shall have no riprapping or other pier proon the river. He states that none of the tection above an elevation of 10 feet below boats engaged in interstate commerce from the surface of Davis Island pool, and that Pittsburg, south and west, can reach, at low all parts of the old structure not comprised water, a single manufacuring plant or wharf in the new construction, and in conformity in the cities of Pittsburg and Allegheny on with the above requirements, shall be wholthe Allegheny river. He submits a photo-ly removed. The period of eighteen months graph to show that the portion of Pittsburg is considered by him ample time within harbor in the Monongahela river is crowded with shipping, while that portion in the Allegheny has none, all due to the existence of the Union bridge. It is also shown by the evidence that the lower portion of the Allegheny river would be of great impor- Under date of 20th of January, 1903, Mr. tance as a harbor of refuge when ice is run- Root, then Secretary of War, issued a forning out of the Monongahela river, if it mal notice to the Bridge Company, stating were not obstructed by the Union bridge. that he had good reason to believe that its He reaches the conclusion, based on the facts bridge was an unreasonable obstruction to developed at the hearing, that, in order to free navigation. The notice informed the give the shipping at Pittsburg increased company of the alterations of its bridge harbor room, and to enable it to connect with recommended by the Chief of Engineers as wharves and manufacturing plants in that necessary, and concluded: "And whereas, part of the harbor located on the Allegheny eighteen months from the date of service of river the Union bridge should be so raised this notice is a reasonable time in which to as to provide a channel-span with a clear alter the said bridge as described above; height of 70 feet, the same as exists under Now, therefore, in obedience to, and by virthe bridge known as the 'Point bridge' on tue of, § 18 of an act of the Congress of the the Monongahela river, and the same that United States entitled 'An Act Making Apwill exist under the Wabash Railroad bridge | propriations for the Construction, Repair, 27 S. C.-24. which to make these alterations. I concur in his views and recommend that notice be served on the Bridge Company, requiring the alterations to be made and completed as specified by him." |