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, 1899, I, Elihu tion 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 and completed on or before the expiration of eighteen months from the date of service hereof." At the request of the Bridge Company, the time fixed by Secretary Root for altering, changing, and elevating the bridge was extended by his successor, Secretary Taft, to December 1st, 1904. By order of the latter officer the time was extended to January 1st, 1905. In the opinion of the district court, delivered on a motion in arrest of judgment, it "The obstruction here involved was said: consists of a bridge over the Allegheny river just above its junction with the Monongahela at Pittsburg. The Allegheny river rises in Pennsylvania, flows north into New York state, and thence back into Pennsylvania. The latter state, by act of March 21, 1798 (3 Smith's Laws, p. 320), enacted the Allegheny, 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 the 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 which 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 5 desirable refuge to the vessels that are ex-feet above their normal depths, and backs posed to danger from the breaking up of ice in the headwaters of the other. The Union bridge, at the mouth of the Anegheny, was erected at a time when the Secretary of War was not given specific control over navigable streams, and was not authorized to inhibit the construction of bridges which were likely to obstruct navigation; but it appears that an army engineer, Colonel Merrill, in charge of the district, publicly announced that this bridge was an obstruction to navigation when it was erected. It was erected, therefore, in the face of the information given by the best authority that could be consulted in that matter in the government. These are the facts that I find independently of any previous adjudication; but, added to this is the finding of my predecessor, Mr. Root, to exactly the same effect, upon which he based an order that the bridge, as an obstruction to navigation, be abated. This matter is now before me on a petition for rehearing of Mr. Root's order. As an original question I should have ruled as Mr. Root ruled, and a fortiori because the orders of this Department are not to be lightly set aside, and are to be treated as a decree in equity would be, and be set aside only upon a showing of a palpable error or its water to the first dams of the Allegheny The first principal question raised by the defendant is whether the 18th section of the river and harbor act of March 3d, 1899, is in violation of the Constitution of the United States as delegating legislative and judicial powers to the head of an executive department of the government. This question, the government contends, has been determined in its favor by the principles heretofore an nounced by this court, and need not be discussed as if now presented for the first time. In its judicial as well as legal aspects the question is of such importance as to justify a full reference to prior decisions. The earliest case is that of The Aurora v. United States, 7 Cranch, 382, 3 L. ed. 378, which involved the question whether Congress could make the revival of a law (which had ceased to be in force) depend upon the existence of certain facts, to be ascertained by the President and set forth in a proclamation by him. The court said: "We can see no sufficient reason why the legislature should not exercise its discretion in reviving the act of March 1st, 1809 [2 Stat. at L. 528, chap. 24], either expressly or conditionally, as their judgment should direct. The 19th section of that act, declaring that it should continue in force to a certain time, and no longer, could not restrict their power of extending its operation without limitation upon the occurrence of any subsequent combination of events." Referring to this language, we said in the subsequent case of Marshall Field & Co. v. Clark, 143 U. S. 649, 683, 36 L. ed. 294, 307, 12 Sup. Ct. Rep. 495, 501: "This certainly is a decision that it was competent for Congress to make the revival of an act depend upon the proclamation of the President, showing the ascertainment by him of the fact that the edicts of certain nations had been so revoked or modimodified that they did not violate the neutral commerce of the United States. The same principle would apply in the case of the suspension of an act upon a contingency to be ascertained by the President and made known by his proclamation." McKinley tariff act of 1890 [26 Stat. at L. 612, chap. 1244, § 3] which provided for the imposition, in a named contingency (to be determined by the President and manifested by his proclamation), of duties upon sugar, molasses, and other specified articles, which the act had placed in the free list. By that section it was declared that "with a view to secure reciprocal trade with countries producing the following articles and for this purpose, on and after the first day of January, eighteen hundred and ninety-two, whenever, and so often as the President shall be satisfied that the government of any country producing and exporting sugars, molasses, coffee, tea, and hides, raw and uncured, or any of such articles, imposes duties or other exactions upon the agricultural or other products of the United States, which, in view of the free introduction of such sugar, molasses, coffee, tea, and hides into the United States, he may deem to be reciprocally unequal and unreasonable, he shall have the power, and it shall be his duty, to suspend, by proclamation to that effect, the provisions of this act relating to the free introduction of such sugar, molasses, coffee, tea, and hides, the production of such country, for such time as he shall deem just, and in such case and during such suspension duties shall be levied, collected, and paid upon sugar, molasses, coffee, tea, and hides, the product of or exported from such designated country, as follows, namely." Here follows in the act provisions indicating the particular duties to be collected, after the President's proclamation upon sugars, molasses, coffee, tea, hides, etc. It was contended in the Field Case that the above 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 legisgress 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 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 remay commit something to the discretion of sult of that examination of legislative precthe other departments." In Marshall Field & Co. v. Clark, just cited, 143 U. S. 649, 680, 683, 691, 692, 36 L. ed. 294, 306, 307, 309, 310, 12 Sup. Ct. Rep. 495, 500, 501, 504, 505, the question arose as to the constitutionality of that section of the at L. 565, 566; of February 9th, 1799, chap. †Act of June 13th, 1798, chap. 53, 1 Stat. at L. 565, 566; of February 9th, 1799, chap. 2, 1 Stat. at L. 613; of April 18th, 1806, chap. 29, 2 Stat. at L. 379; of December 19th, 1806, chap. 1, 2 Stat. at L. 411; of March 3d. 1815, chap. 77, 3 Stat. at L. 224; of edents was thus stated: "The authority that principle. It does not, in any real sense, invest the President with the power of legislation. For the purpose of securing reciprocal trade with countries producing and exporting sugar, molasses, coffee, tea, and hides, Congress itself determined that the provisions of the act of October 1, 1890, permitting the free introduction of such articles, should be suspended as to any country producing and exporting them that im given to the President by the act of June 4, 1794 [1 Stat. at L. 372, chap. 41], to lay an embargo on all ships and vessels in the ports of the United States, 'whenever, in his opinion, the public safety shall so require,' and under regulations, to be continued or revoked, 'whenever he shall think proper;' by the act of February 9, 1799, to remit and discontinue, for the time being, the restraints and prohibitions which Congress had pre-posed exactions and duties on the agricultuscribed with respect to commercial intercourse with the French Republic, 'if he shall deem it expedient and consistent with the interest of the United States,' and 'to revoke such order whenever, in his opinion, the interest of the United States shall require;' by the act of December 19, 1806, to suspend, for a named time, the operation of the nonimportation act of the same year, 'if, in his judgment, the public interest should require it;' by the act of May 1, 1810 [2 Stat. at L. 606, chap. 39, § 4], to revive a former act, as to Great Britain or France, if either country had not, by a named day, so revoked or modified its edicts as not 'to violate the neutral commerce of the United States;' by the acts of March 3, 1815, and May 31, 1830, to declare the repeal, as to any foreign nation, of the several acts imposing duties on the tonnage of ships and vessels, and on goods, wares, and merchandise imported into the United States, when he should be 'satisfied' that the discriminating duties of such foreign nations, 'so far as they operate to the disadvantage of the United States,' had been abolished; by the act of March 6, 1866, to declare the provisions of the act forbidding the importation into this country of neat cattle and the hides of neat cattle, to be inoperative, 'whenever, in his judgment,' their importation 'may be made without danger of the introduction or spread of contagious or infectious disease among the cattle of the United States,'-must be regarded as unwarranted by the Constitution, if the contention of the appellants in respect to the 3d section of the act of October 1, 1890, be sustained." ral and other products of the United States, which the President deemed, that is, which he found to be, reciprocally unequal and unreasonable. Congress itself prescribed, in advance, the duties to be levied, collected, and paid, on sugar, molasses, coffee, tea, or hides, produced by or exported from such designated country, while the suspension lasted. Nothing involving the expediency or the just operation of such legislation was left to the determination of the President. The words, 'he may deem,' in the 3d section, of course, implied that the President would examine the commercial regulations of other countries producing and exporting sugar, molasses, coffee, tea, and hides, and form a judgment as to whether they were reciprocally equal and reasonable, or the contrary, in their effect upon American products. But when he ascertained the fact that duties and exactions, reciprocally unequal and unreasonable, were imposed upon the agricultural or other products of the United States by a country producing and exporting sugar, molasses, coffee, tea, or hides, it became his duty to issue a proclamation declaring the suspension, as to that country, which Congress had determined should occur. He had no discretion in the premises except in respect to the duration of the suspension so ordered. But that related only to the enforcement of the policy established by Congress. As the suspension was absolutely required when the President ascertained the existence of a particular fact, it cannot be said that, in ascertaining that fact, and in issuing his proclamation, in obedience to the legislative will, he exercised the function of 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. 11 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 a part of the lawing 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 Treas er to the President." ury the mere executive duty to effectuate the legislative policy declared in the statute. The case is within the principle of Marshall Field & Co. v. Clark, 143 U. S. 649, 36 L. ed. 294, 12 Sup. Ct. Rep. 495, where it was decided that the 3d section of the tariff act of October 1, 1890, was not repugnant to the Constitution as confer The latest case bearing on the general question is Buttfield v. Stranahan, 192 U. S. 470, 496, 48 L. ed. 525, 535, 24 Sup. Ct. Rep. 349, 355. That case involved the constitutionality of the act of Congress of March 2d, 1897 (29 Stat. at L. 604, chap. 358, U. S. Comp. Stat. 1901, p. 3194), relat 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 judicial power. He could not be said to exercise strictly legislative or judicial power any more, for instance, than it could be said that executive officers exercise such power when, upon investigation, they ascertain whether a particular applicant for a pension belongs to a class of persons who, under the general rules prescribed by Congress, are entitled to pensions. If the principle for which the defendant contends received our approval the conclusion could not be avoided that executive officers, in all the departments, in carrying out the will of Congress, as expressed in statutes enacted by it, have, from the foundation of the national government, exercised, and are now exercising, powers as to mere details, that are strictly legislative or judicial in their nature. This will be apparent upon an examination of the various statutes that confer authority upon executive departments in respect of the enforcement of the laws of the United States. Indeed, it is not too much to say that a denial to Congress of the right, under the Constitution, to dele It would seem too clear to admit of serious doubt that the statute under which the Secretary of War proceeded is in entire harmony with the principles announced in former cases. In no substantial, just sense does it confer upon that officer, as the head of an executive department, powers strictly legislative or judicial in their nature, or which must be exclusively exercised by Congress or by the courts. It has long been the policy of the government to remove such unreasonable obstructions to the free navigation of the water ways of the United States as were caused by bridges maintained over them. That such an object was of common interest and within the competency of Congress, under its power to regulate commerce, everyone must admit: for commerce comprehends navigation, and therefore to free navigation from unreasonable obstructions is a legitimate exertion of that power. Gibbons v. Odgen, 9 Wheat. 1, 189, 190, 6 L. ed. 23, 68, 69. As appropriate to the object to be accomplished, as a means to an end within the power of the national government, Congress, in execution of a de-gate the power to determine some fact or clared policy, committed to the Secretary of War the duty of ascertaining all the facts essential in any inquiry whether particular bridges, over the water ways of the United States, were unreasonable obstructions to free navigation. Beyond question, if it had so elected, Congress, in some effective mode and without previous investigation through executive officers, could have determined for itself, primarily, the fact whether the bridge here in question was an unreasonable obstruction to navigation, and, if it was found to be of that character could, by direct legislation, have required the defendant to make such alterations of its bridge as were requisite for the protection of navigation and commerce over the water way in question. But investigations by Congress as to each par the state of things upon which the enforcement of its enactment depends, would be "to stop the wheels of government" and bring about confusion, if not paralysis, in the conduct of the public business. To this may be added the consideration that Congress, by the act of 1899, did not invest the Secretary of War with any power in these matters that could reasonably be characterized as arbitrary. He cannot act in reference to any bridge alleged to be an unreasonable obstruction to free navigation without first giving the parties an opportunity to be heard. He cannot require any bridge of that character to be altered, even for the purpose of rendering navigation through or under it reasonably free, easy, and unobstructed, without giving pre |