and Preservation of Certain Public Works mistake. The petition for rehearing is deon Rivers and Harbors, and for Other Pur- nied, and the order suspending the operaposes,' approved March 3, 1895, I, Elihution of Mr. Root's order is now revoked. Root, Secretary of War, do hereby notify The order will be put in full force and exethe said Union Bridge Company to alter the cuted by the proper officers, and the Union said bridge as described above, and pre- Bridge will be notified accordingly." scribe that said alterations shall be made In the opinion of the district court, delivand completed on or before the expiration ered on a motion in arrest of judginent, it of eighteen months from the date of service was said: “The obstruction here involved hereof."

consists of a bridge over the Allegheny river At the request of the Bridge Company, the just above its junction with the Monongatime fixed by Secretary Root for altering, hela at Pittsburg. The Allegheny river rises changing, and elevating the bridge was ex- in Pennsylvania, flows north into New York tended by his successor, Secretary Taft, to state, and thence back into Pennsylvania. December 1st, 1904. By order of the latter The latter state, by act of March 21, 1798 officer the time was extended to January 1st, (3 Smith's Laws, p. 320), enacted the Alle1905.

gheny, from the New York state line to its Subsequently, a rehearing was asked for mouth, a navigable stream, and the state by the Bridge Company, but the rehearing of New York, by act of March 31, 1807, did was refused and secretary Taft made the likewise in its counties of Genesee and Allefollowing order: "The Union bridge is an gheny. The Allegheny is the principal unreasonable obstruction to commerce of the branch of the Ohio, its volume being six Allegheny river. If the bridge were not times greater than that of tne Monongathere, the winter refuge which the stretch hela. It is included in the general plan for of the Allegheny river up to the next bridge the improvement by the national governwould offer for the fleet of boats wuch usu- ment of local interstate waterways and the ally are moored in the Monongahela would harbor of Pittsburg. The government has be a very great advantage for navigation built, or has now in process of construction, and commerce on the Ohio river and its a system of locks and dams on the Alletributaries. The two rivers, the Allegheny gheny which will slackwater the stream for and the Monongahela, because they rise in 27 miles from its mouth. The Davis Island different sections of the country, have their dam, situate 5 miles below Pittsburg, on the ice breaks at different times in the early Ohio river, raises the water in the Allespring. The mouth of the one offers very gheny and Monongahela at their junction 6 desirable refuge to the vessels that are ex- feet above their normal depths, and backs posed to danger from the breaking up of ice its water to the first dams of the Allegheny in the headwaters of the other. The Union and Monongahela slackwater systems rebridge, at the mouth of the Auegheny, was spectively. These waters form the harhor of erected at a time when the Secretary of Pittsburg, the importance of which harbor War was not given specific control over nav- will be appreciated from the fact that the igable streams, and was not authorized to tonnage in water transportation passing inhibit the construction of bridges which from it the past year exceeded that of the were likely to obstruct navigation; but it Suez canal for the same period. From its appears that an army engineer, Colonel Mer-size, interstate relation, and its being a part rill, in charge of the district, publicly an- of this really great harbor, it will be seen nounced that this bridge was an obstruction that the Allegheny answers the requirement to navigation when it was erected. It was of a navigable stream (The Montello erected, therefore, in the face of the infor- (United States v. The Montello), 11 Wall. mation given by the best authority that 411, 20 L. ed. 191), and is also one over could be consulted in that matter in the gov- which the national government has asernment. These are the facts that I find sumed jurisdiction. The Union bridge is a independently of any previous adjudication; pier-supported, wooden structure; it crosses but, added to this is the finding of my prede- from Pittsburg to Allegheny City; and is cessor, Mr. Root, to exactly the same effect, the first bridge on the Allegheny." [143 upon which he based an order that the Fed. 378.] bridge, as an obstruction to navigation, be The first principal question raised by the abated. This matter is now before me on a defendant is whether the 18th section of the petition for rehearing of Mr. Root's order. ; river and harbor act of March 3d, 1899, is As an original question I should have ruled | in violation of the Constitution of the United as Mr. Root ruled, and a fortiori because States as delegating legislative and judicial the orders of this Department are not to be powers to the head of an executive departlightly set aside, and are to be treated as a ment of the government. This question, the decree in equity would be, and be set aside government contends, has been determined only upon a showing of a palpable error or ' in its favor by the principles heretofore announced by this court, and need not be dis-, McKinley tariff act of 1890 [26 Stat. at L. cussed as if now presented for the first time. 612, chap. 1244, § 3] which provided for the

, In its judicial as well as legal aspects the imposition, in a named contiugency (to be question is of such importance as to justify determined by the President and manifested a full reference to prior decisions.

by his proclamation), of duties upon sugar, The earliest case is that of The Aurora molasses, and other specified articles, which v. United States, 7 Cranch, 382, 3 L. ed. the act had placed in the free list. By that 378, which involved the question whether section it was declared that "with a view Congress could make the revival of a law to secure reciprocal trade with countries pro. (which had ceased to be in force) depend ducing the following articles and for this upon the existence of certain facts, to be purpose, on and after the first day of Janascertained by the President and set forth uary, eighteen hundred and ninety-two, in a proclamation by him. The court said: whenever, and so often as the President “We can see no sufficient reason why the shall be satisfied that the government of any legislature should not exercise its discretion country producing and exporting sugars, moin reviving the act of March 1st, 1809 [2lasses, coffee, tea, and hides, raw and unStat. at L. 528, chap. 24), either expressly cured, or any of such articles, imposes du. or conditionally, as their judgment should ties or other exactions upon the agriculdirect. The 19th section of that act, de- tural or other products of the United States, claring that it should continue in force to a which, in view of the free introduction of certain time, and no longer, could not re- such sugar, molasses, coffee, tea, and hides strict their power of extending its operation into the United States, he may deem to be without limitation upon the occurrence of reciprocally unequal and unreasonable, he any subsequent combination of events.” Re- shall have the power, and it shall be his ferring to this language, we said in the sub- 1 duty, to suspend, by proclamation to that sequent case of Marshall Field & Co. v. effect, the provisions of this act relating Clark, 143 U. S. 649, 683, 36 L. ed. to the free introduction of such sugar, mo294, 307, 12 Sup. Ct. Rep. 495, 501: lasses, coffee, tea, and hides, the production “This certainly is a decision that it was of such country, for such time as he shall competent for Congress to make the revival | deem just, and in such case and during such of an act depend upon the proclamation suspension duties shall be levied, collected, of the President, showing the ascertain and paid upon sugar, molasses, coffee, tea, ment by him of the fact that the edicts of and hides, the product of or exported from certain nations had been so revoked or modi- such designated country, as follows, namemodified that they did not violate the neu- ly.” Here follows in the act provisions intral commerce of the United States. The dicating the particular duties to be collected, same principle would apply in the case of after the President's proclamation upon sug. the suspension of an act upon a contingency ars, molasses, coffee, tea, hides, etc. It was to be ascertained by the President and made contended in the Field Case that the above known by his proclamation.”

section, so far as it authorized the President In Wayman v. Southard, 10 Wheat. 1, 43, to suspend by proclamation the provisions 45, 46, 6 L. ed. 253, 262, 263, Chief Justice of the act relating to the free introduction Marshall, delivering the unanimous judg- of sugar, molasses, coffee, etc., was unconment of the court, said that although Con- stitutional, as delegating to him both legis. gress could not delegate to the courts or to lative and treaty-making powers. In its any other tribunals powers strictly and ex. consideration of this

consideration of this question the court, , clusively legislative, and although the line after referring to the case of The Aurora, had not been exactly drawn that separates above cited, examined the numerous precethe important subjects which must be en-dents in legislation showing to what extent tirely regulated by the legislature itself | the suspension of certain provisions and the from those of less interest “in which a gen going into operation of other provisions of eral provision may be made, and powers an act of Congress had been made to depend given to those who are to act under such entirely upon the finding or ascertainment general provisions to fill up the details,” yet by the President of certain facts, to be made “Congress may certainly delegate to others known by his Proclamation. The acts of powers which the legislature may rightly | Congress which underwent examination by exercise itself," and "the maker of the law the court are noted in the margin.† The re

* may commit something to the discretion of sult of that exanıination of legislative precthe other departments. In Marshall Field & Co. v. Clark, just

† Act of June 13th, 1798, chap. 53, 1 Stat. cited, 143 U. S. 649, 680, 683, 691, 692, 36 L. at L. 565, 566; of February 9th, 1799, chap.

2, 1 Stat. at L. 613; of April 18th, 1806, ed. 294, 306, 307, 309, 310, 12 Sup. Ct. Rep. Chap. 29, 2 Stat. at L. 379; of December 19th, 495, 500, 501, 504, 505, the question arose as 1806, chap. 1, 2 Stat. at L. 411; of March to the constitutionality of that section of the 3d. 1815, chap. 77, 3 Stat. at L. 224; of edents was thus stated: "The authority that principle. It does not, in any real given to the President by the act of June sense, invest the President with the power 4, 1794 [1 Stat. at L. 372, chap. 41], to lay of legislation. For the purpose of securing an embargo on all ships and vessels in the reciprocal trade with countries producing ports of the United States, “whenever, in his and exporting sugar, molasses, coffee, tea, opinion, the public safety shall so require,' and hides, Congress itself determined that and under regulations, to be continued or re- the provisions of the act of October 1, 1890, voked, 'whenever he shall think proper;' by permitting the free introduction of such arthe act of February 9, 1799, to remit and ticles, should be suspended as to any coun'discontinue, for the time being, the restraints try producing and exporting them that imand prohibitions which Congress had pre-posed exactions and duties on the agricultuscribed with respect to commercial inter- ral and other products of the United States, course with the French Republic, 'if he shall which the President deemed, that is, which deem it expedient and consistent with the he found to be, reciprocally unequal and uninterest of the United States,' and 'to re- reasonable. Congress itself prescribed, in voke such order whenever, in his opinion, advance, the duties to be levied, collected, the interest of the United States shall re- and paid, on sugar, molasses, coffee, tea, or quire;' by the act of December 19, 1806, to hides, produced by or exported from such suspend, for a named time, the operation designated country, while the suspension of the nonimportation act of the same year, lasted. Nothing involving the expediency 'if, in his judgment, the public interest or the just operation of such legislation was should require it;' by the act of May 1, left to the determination of the President. 1810 [2 Stat. at L. 606, chap. 39, § 4], to The words, he may deem,' in the 3d section, revive a former act, as to Great Britain or of course, implied that the President would France, if either country had not, by a examine the commercial regulations of other named day, so revoked or modified its edicts countries producing and exporting sugar, as not 'to violate the neutral commerce of molasses, coffee, tea, and hides, and form a the United States;' by the acts of March judgment as to whether they were recipro3, 1815, and May 31, 1830, to declare the re-cally equal and reasonable, or the contrary, peal, as to any foreign nation, of the sev. in their effect upon American products. But eral acts imposing duties on the tonnage of when he ascertained the fact that duties ships and vessels, and on goods, wares, and and exactions, reciprocally unequal and unmerchandise imported into the United reasonable, were imposed upon the agriculStates, when he should be 'satisfied' that tural or other products of the United States the discriminating duties of such foreign by a country producing and exporting sugar, nations, ‘so far as they operate to the dis-molasses, coffee, tea, or hides, it became his advantage of the United States,' had been duty to issue a proclamation declaring the abolished; by the act of March 6, 1866, to suspension, as to that country, which Condeclare the provisions of the act forbidding gress had determined should occur. He had the importation into this country of neat no discretion in the premises except in recattle and the hides of neat cattle, to be spect to the duration of the suspension so inoperative, 'whenever, in his judgment,'| ordered. But that related only to the entheir importation may be made without forcement of the policy established by Condanger of the introduction or spread of con- gress. As the suspension was absolutely tagious or infectious disease among the cat- required when the President ascertained the tle of the United States,'-must be regarded existence of a particular fact, it cannot be as unwarranted by the Constitution, if the said that, in ascertaining that fact, and in contention of the appellants in respect to issuing his proclamation, in obedience to the the 3d section of the act of October 1, 1890, legislative will, he exercised the function of be sustained.”

making laws. Legislative power was exerTouching the general question the court cised when Congress declared that the sussaid: “That Congress cannot delegate legis- pension should take effect upon a named lative power to the President is a principle contingency. What the President was reuniversally recognized as vital to the integ. quired to do was simply in execution of the rity and maintenance of the system of gov- act of Congress. It was not the making of ernment ordained by the Constitution. The law. He was the mere agent of the lawact of October 1, 1890, in the particular un- making department to ascertain and declare der consideration, is not inconsistent with the event upon which its expressed will was March 3d, 1817, chap. 39, 3 Stat. at L. 361; | gust 5th, 1854, chap. 269, 10 Stat. at L. 587; of January 7th, 1824, chap. 4, 4 Stat. at L. i1 Stat. at L. 790; of March 6th, 1866, chap. 3; of May 24th, 1828, chap. 111, 4 Stat. at L. 12, 14 Stat. at L. 3, 26 Stat. at L. 616, chap. 308, U. S. Comp. Stat. 1901, p. 2856; of act 1244; of act June 26th, 1884, chap. 121, 23 of May 31st, 1830, chap. 219, 4 Stat. at L. Stat. at L. 57, U. S. Comp. Stat. 1901, p. 425, U. S. Comp. Stat. 1901, p. 2848; of Au- 2851.

to take effect. It was

It was a part of the law | ing to the "importation of impure and unitself as it left the hands of Congress that wholesome tea." The act provided for the the provisions, full and complete in them. appointment by the Secretary of the Treasselves, permitting the free introduction of ury of a board of seven tea experts, who sugars, molasses, coffee, tea, and hides, from should prepare and submit to him standard particular countries, should be suspended, samples of that article. One section of the in a given contingency, and that, in case act provided: “That the Secretary of the of such suspensions, certain duties should be Treasury, upon the recommendation of the imposed.” Again: “ "The true distinction,' said board, shall fix and establish uniform as Judge Ranney, speaking for the supreme standards of purity, quality, and fitness for court of Ohio, has well said, 'is between the consumption of all kinds of teas imported delegation of power to make the law, which into the United States, and shall procure necessarily involves a discretion as to what and deposit in the custom houses of the it shall be, and conferring authority or dis- ports of New York, Chicago, San Francisco, cretion as to its execution, to be exercised and such other ports as he may determine, under and in pursuance of the law. The duplicate samples of such standards; that first cannot be done; to the latter no valid said Secretary shall procure a sufficient objection can be made.' Cincinnati, W. & number of other duplicate samples of such Z. R. Co. v. Clinton County, 1 Ohio St. 88. standards to supply the importers and dealIn Moers v. Reading, 21 Pa. 188, 202, the ers in tea at all ports desiring the same at language of the court was: 'Half the stat-cost. All teas, or merchandise described as utes on our books are in the alternative, tea, of inferior purity, quality, and fitness depending on the discretion of some person for consumption to such standards shall be or persons to whom is confided the duty of deemed within the prohibition of the 1st determining whether the proper occasion ex section hereof.” [$ 3.] In that case it was ists for executing them. But it cannot be contended that the act was unconstitutionsaid that the exercise of such discretion al, as making the right to import tea deis the making of the law.' So, in pend upon the arbitrary action of the SecLocke's Appeal, 72 Pa. 491, 498, 13 retary of the Treasury and a board apAm. Rep. 716, 721: "To assert that a law pointed by him; as excluding from import is less than a law because it is made to de- wholesome, genuine and unadulterated tea; pend on a future event or act is to rob the and, as discriminating unequally in the adlegislature of the power to act wisely for mission of the different kinds of teas for imthe public welfare whenever a law is passed port, as well as in the right to sell and purrelating to a state of affairs not yet devel-chase that article. The act conferred, it was oped, or to things future and impossible to objected, upon the Secretary and the board, fully know. The proper distinction, the the uncontrolled power of fixing standards court said, was this: "The legislature can- of purity, quality, and fitness for consumpnot delegate its power to make a law; but tion, and thus to prescribe arbitrarily what it can make a law to delegate a power to teas may be imported and dealt in. The determine some fact or state of things upon question of constitutional law so raised was which the law makes, or intends to make, thus disposed of by the court: “The claim its own action depend. To deny this would that the statute commits to the arbitrary be to stop the wheels of government. There discretion of the Secretary of the Treasury are many things upon which wise and useful the determination of what teas may be imlegislation must depend which cannot be ported, and therefore in effect vests that known to the lawmaking power, and must, official with legislative power, is without therefore, be a subject of inquiry and de- merit. We are of opinion that the statute, termination outside of the halls of legis- when properly construed, as said by the

, lation. What has been said is equally ap- circuit court of appeals, but expresses the plicable to the objection that the 3d section purpose to exclude the lowest grades of tea, of the act invests the President with treaty. whether demonstrably of inferior purity, or making power. The court is of the opinion unfit for consumption, or presumably so bethat the 3d section of the act of October 1, cause of their inferior quality. This, in ef1890, is not liable to the objection that it fect, was the fixing of a primary standard, transfers legislative and treaty-making pow- and devolved upon the Secretary of the Treaser to the President."

ury the mere executive duty to effectuate The latest case bearing on the general the legislative policy declared in the statquestion is Buttfield v. Stranahan, 192 U. ute. The case is within the principle of S. 470, 496, 48 L. ed. 525, 535, 24 Sup. Ct. Marshall Field & Co. v. Clark, 143 U. S. Rep. 349, 355. That case involved the con- 649, 36 L. ed. 294, 12 Sup. Ct. Rep. 495, stitutionality of the act of Congress of where it was decided that the 3d section March 2d, 1897 (29 Stat. at L. 604, chap. of the tariff act of October 1, 1890, was not 358, U. S. Comp. Stat. 1901, p. 3194), relat. repugnant to the Constitution as confer.

ring legislative and treaty-making power on, ticular bridge alleged to constitute an unthe President, because it authorized him to reasonable obstruction to free navigation, suspend the provisions of the act relating and direct legislation covering each case, to the free introduction of sugar, molasses, separately, would be impracticable, in view coffee, tea, and hides. We may say of the of the vast and varied interests which relegislation in this case, as was said of the quire national legislation from time to time. legislation considered in Marshall Field & By the statute in question Congress declared Co. v. Clark, that it does not, in any real in effect that navigation should be freed sense, invest administrative officials with from unreasonable obstructions arising from the power of legislation. Congress legis- bridges of insufficient height, width of span, lated on the subject as far as was reason or other defects. It stopped, however, with ably practicable, and, from the necessities this declaration of a general rule, and imof the case, was compelled to leave to ex- posed upon the Secretary of War the duty ecutive officials the duty of bringing about of ascertaining what particular cases came the result pointed out by the statute. To within the rule prescribed by Congress, as deny the power of Congress to delegate such well as the duty of enforcing the rule in a duty would, in effect, amount but to de- such cases. In performing that duty the claring that the plenary power vested in Secretary of War will only execute the Congress to regulate foreign commerce could clearly-expressed will of Congress, and will not be efficaciously exerted.''

not, in any true sense, exert legislative or It would seem too clear to admit of seri-judicial power. He could not be said to exous doubt that the statute under which the ercise strictly legislative or judicial power Secretary of War proceeded is in entire har- any more, for instance, than it could be mony with the principles announced in for- said that executive officers exercise such mer cases. In no substantial, just sense power when, upon investigation, they asdoes it confer upon that officer, as the head certain whether a particular applicant for of an executive department, powers strictly a pension belongs to a class of persons who, legislative or judicial in their nature, or under the general rules prescribed by Conwhich must be exclusively exercised by Congress, are entitled to pensions. If the pringress or by the courts. It has long been ciple for which the defendant contends rethe policy of the government to remove such ceived our approval the conclusion could not unreasonable obstructions to the free navi. be avoided that executive officers, in all the gation of the water ways of the United departments, in carrying out the will of States as were caused by bridges main Congress, as expressed in statutes enacted tained over them. That such an object was by it, have, from the foundation of the naof common interest and within the compe- tional government, exercised, and are now tency of Congress, under it's power to regu- exercising, powers as to mere details, that late commerce, everyone must admit: for are strictly legislative or judicial in their commerce comprehends navigation, and there nature. This will be apparent upon an exfore to free navigation from unreasonable amination of the various statutes that conobstructions is a legitimate exertion of fer authority upon executive departments that power.

Gibbons v. Odgen, 9 Wheat. in respect of the enforcement of the laws of 1, 189, 190, 6 L. ed. 23, 68, 69. As appropriate the United States. Indeed, it is not too to the object to be accomplished, as a means much to say that a denial to Congress of to an end within the power of the national the right, under the Constitution, to delegovernment, Congress, in execution of a de- gate the power to determine some fact or clared policy, committed to the Secretary of the state of things upon which the enforceWar the duty of ascertaining all the facts ment of its enactment depends, would be essential in any inquiry whether particular “to stop the wheels of government” and bridges, over the water ways of the United bring about confusion, if not paralysis, in States, were unreasonable obstructions to the conduct of the public business. free navigation. Beyond question, if it had To this may be added the consideration so elected, Congress, in some effective mode that Congress, by the act of 1899, did not and without previous investigation through invest the Secretary of War with any powexecutive officers, could have determined for er in these matters that could reasonably itself, primarily, the fact whether the bridge be characterized as arbitrary. He cannot here in question was an unreasonable ob- act in reference to any bridge alleged to be struction to navigation, and, if it was found an unreasonable obstruction to free navigato be of that character could, by direct legis- tion without first giving the parties an oplation, have required the defendant to make portunity to be heard. He cannot require such alterations of its bridge as were requis- any bridge of that character to be altered, ite for the protection of navigation and com- even for the purpose of rendering navigamerce over the water way in question. But | tion through or under it reasonably free, investigations by Congress as to each par- | easy, and unobstructed, without giving pre