bridge specified in the order of the Secre- , which the Bridge Company contends would tary of War will be a taking of the piop- seriously impair the exercise of the benefierty of the Bridge Company for public use ? cent power of the government to secure the We think not. Unless there be a taking, free and unobstructed navigation of the within the meaning of the Constitution, no water ways of the United States. We canobligation arises upon the United States to not give our assent to that principle. In make compensation for the cost to be in-conformity with the adjudged cases, and in curred in making such alterations. The order that the constitutional power of Condamage that will accrue to the Bridge Com-gress may have full operation, we must adpany, as the result of compliance with the judge that Congress has power to protect Secretary's order, must, in such case, be navigation on all water ways of the United deemed incidental to the exercise by the States against unreasonable obstructions, government of its power to regulate com- even those created under the sanction of a merce among the states, which includes, as state, and that an order to so alter a bridge we have seen, the power to secure free navi. over a water way of the United States that gation upon the water ways of the United it will cease to be an unreasonable obstrucStates against unreasonable obstructions. tion to navigation will not amount to a takThere are no circumstances connected with ing of private property for public use for the original construction of the bridge, or which compensation need be made. with its maintenance since, which so tie the Independent of the grounds upon which hands of the government that it cannot ex- we thus place our decision, it is appropriate ert its full power to protect the freedom of to observe that the conclusion reached finds navigation against obstructions. Although support in the charter of the Bridge Comthe bridge, when erected under the authority pany and in the law of Pennsylvania, as of a Pennsylvania charter, may have been a declared by its highest court. The charter lawful structure, and although it may not of the company, as we have seen, expressly have been an unreasonable obstruction to warned the company that its bridge must commerce and navigation as then carried on, not obstruct navigation,—that is, in legal it must be taken, under the cases cited, and effect, navigation as it then was, or might upon principle, not only that the company, be, at any subsequent time. In Dugan v. when exerting the power conferred upon it by the state, did so with knowledge of the Bridge Co. 27 Pa. 303, 309, 311, 67 Am. Dec.

464, we have the case of a bridge company paramount authority of Congress to regulate commerce among the states, but that on which was conferred the franchise to it erected the bridge subject to the possi- erect and maintain a toll-bridge across Mobility that Congress might, at some future nongahela river, coupled, however, with the time, when the public interest demanded, condition that such bridge should not be exert its power by appropriate legislation to erected “in such manner as to injure, stop, protect navigation against unreasonable ob- or interrupt the navigation of such river structions. Even if the bridge, in its orig. by boats, rafts, or other vessels.” The suinal form, was an unreasonable obstruction preme court of Pennsylvania interpreted to navigation, the mere failure of the United these words as meaning that “the bridge States, at the time, to intervene by its of- was to be so built as not to injure, stop, or ficers or by legislation and prevent its erec- interrupt the navigation, either then or now, tion, could not create an obligation on the whether in its infancy or full growth.” The part of the government to make compensa - same general question arose in Chicago, B. tion to the company if, at a subsequent & Q. R. Co. v. Illinois, 200 U. S. 589, 50 L. time, and for public reasons, Congress should ed. 607, 26 Sup. Ct. Rep. 348. This forbid the maintenance of bridges that had court held that the adjudged cases “nega. become unreasonable obstructions to navi- tive the suggestion of the railway company gation. It is for Congress to determine that the adequacy of its bridge and the when it will exert its power to regulate in-opening under it for passing the water of terstate commerce. Its mere silence or in

the creek at the time the bridge was conaction when individuals or corporations, un

structed determine its obligations to the der the authority of a state, place unreasonable obstructions in the water ways of public at all subsequent periods. In Cooke the United States, cannot have the effect

v. Boston & L. R. Corp. 133 Mass. 185, 188, to cast upon the government an obligation it appeared that a railroad company had not to exert its constitutional power to reg- statutory authority to cross a certain highulate interstate commerce except subject to way with its road. The statute provided the condition that compensation be made or that if the railroad crosse

that if the railroad crossed any highway secured to the individuals or corporation it should be so constructed as not to im. who may be incidentally affected by the pede or obstruct the safe and convenient use exercise of such power. The principle for of the highway. And one of the conten

v.

tions of the company was that the statute | UNITED STATES FIDELITY & GUARANlimited its duty and obligation to provide

TY COMPANY, Piff. in Err., for the wants of travelers at the time it exercised the privilege granted to it. The UNITED STATES OF AMERICA, Suing for court said: “The legislature intended to

me Benefit of James S. Kenyon, Doing

Business as Burrows & Kenyon. provide against any obstruction of the safe and convenient use of the highway for all Courts—jurisdiction of Federal circuit court

time; and if, by the increase of population -United States as plaintiff. in the neighborhood, or by an increasing use The United States is the real, and of the highway, the crossing, which, at the not merely the nominal, plaintiff, so as to outset, was adequate, is no longer so, it is sustain the original jurisdiction of a Federal the duty of the railroad corporation to make circuit court under the judiciary acts of such alteration as will meet the present 1887, 1888 (24 Stat. at L. 552, chap. 373, 25 needs of the public who have occasion to use 1901, p. 508), without regard to the amount

Stat. at L. 433, chap. 866, U. S. Comp. Stat. the highway. In Lake Erie & W. R. Co. in dispute, in a suit authorized by the act v. Cluggish, 143 Ind. 347, 42 N. E. 743, the of August 13, 1894 (28 Stat. at L. 279, $ 5, court said (quoting from Lake Erie & w. chap. 282, U. S. Comp. Stat. 1901, p. 2316), R. Co. v. Smith, 61 Fed. 885): "The duty to be brought in its name, for the use and of a railroad to restore a stream or high- benefit of a material man, upon the bond of way which is crossed by the line of its road a contractor for a public work, which the is a continuing duty; and if, by the in- statute requires shall contain the specific, crease of population or other causes, the special obligation directly to the United crossing becomes inadequate to meet the make payments to all persons supplying him new and altered conditions of the country, labor and materials in the prosecution of it is the duty of the railroad to make such the work. alterations as will meet the present needs of the public.' So, in Indiana ex rel. Mun

[No. 173.] cie v. Lake Erie & W. R. Co. 83 Fed. 284, 287, which was the case of an overhead Argued January 18, 1907. Decided Februcrossing lawfully constructed on one of the

ary 25, 1907. streets of a city, the court said: 'If, by crossing has become inadequate to meet the Island to review a judgment for the plainthe growth of population or otherwise, the INUERRORto the Circuit Court of the

United States for the present needs of the public, it is the duty tiff in an action brought by the United of the railroad company to remedy the defect by restoring the crossing so that it States, for the use and benefit of the matewill not unnecessarily impair the usefulness rial man, upon the bond of a contractor for of the highway.'”

a public work. Affirmed. Some stress was laid in argument upon

See same case below, 132 Fed. 82.

The facts are stated in the opinion. the fact that compliance with the order of

Messrs. Seeber Edwards, George S. Coopthe Secretary of War will compel the Bridge Company to make a very large expenditure er, and James E. Smith for plaintiff in error.

Mr. Edward D. Bassett for defendant in in money. But that consideration cannot

error. affect the decision of the questions of constitutional law involved. It is one to be Mr. Justice Harlan delivered the opinaddressed to the legislative branch of the ion of the court: government. It is for Congress to deter- By an act of Congress approved August mine whether, under the circumstances of 13th, 1894, entitled "An Act for the Proa particular case, justice requires that com- tection of Persons Furnishing Materials and pensation be made to a person or corpora- Labor for the Construction of Public tion incidentally suffering from the exercise Works," it was provided: “That hereafter by the national government of its constitu- any person or persons entering into a formal tional powers.

contract with the United States for the These are all the matters which require construction of any public building, or the notice at our hands; and, perceiving no er- prosecution and completion of any public ror of law on the record, the judgment must work, or for repairs upon any public buildbe affirmed.

ing or public work, shall be required, beIt is so ordered.

fore commencing such work, to execute une

usual penal bond, with good and sufficient Mr. Justice Brewer and Mr. Justice Peck- sureties, with the additional obligations ham dissent.

that such contractor or contractors shall

promptly make payments to all persons supMr. Justice Moody did not participate in plying him or them labor and materials in the consideration or decision of the case. the prosecution of the work provided for in

such contract; and any person or persons, a contractor, for use in the construction of making application therefor, and furnish- the proposed government building, materials ing affidavit to the department under the of the value of $66.05, for which the latdirection of which said work is being, or ter neglected and refused to pay. Damages has been, prosecuted, that labor or mate to the amount of $500 were claimed in the rials for the prosecution of such work has declaration. been supplied by him or them, and payment The defendant, the United States Fidelity for which has not been made, shall be fur- & Guaranty Company, pleaded that it did nished with a certified copy of said con- not owe the sum demanded. The plaintiff tract and bond, upon which said person or introduced testimony, but the defendant inpersons supplying such labor and materials troduced none, and it appearing upon the shall have a right of action, and shall be face of the declaration that the value of authorized to bring suit in the name of the the matter in dispute was less than $2,000, United States for his or their use and bene- it moved that the action be dismissed for fit against said contractor and sureties, and want of jurisdiction in the circuit court. to prosecute the same to final judgment and That motion was denied, and judgment for execution: Provided, That such action and $206.47 was entered against the Fidelity & its prosecutions shall involve the United Guaranty Company for the use and benefit of States in no expense.

Sec. 2. Provided, Kenyon. United States v. Churchyard, 132 that in such case the court in which such Fed. 82. action is brought is authorized to require This case is here upon a certificate as to proper security for costs in case judgment the original jurisdiction of the circuit court is for the defendant.” 28 Stat. at L. 278, of the United States of this action. chap. 280, U. S. Comp. Stat. 1901, p. 2523. A circuit court of the United States, as

On the same day—August 13th, 1894– provided in the judiciary acts of 1887, 1888, Congress passed an act providing that when- may take original cognizance of any suit, ever any recognizance, stipulation, bond, or at common law or in equity, arising under undertaking conditioned for the faithful per- the laws of the United States, if the value formance of any duty, or for doing or re- of the matter in dispute exceeds $2,000, exfraining from doing anything in such re-clusive of interest and costs. [24 Stat. at cognizance, stipulation, bond, or undertak- L. 552, chap. 373] 25 Stat. at L. 433, chap. ing specified, is, by the laws of the United 866, U. S. Comp. Stat. 1901, p. 508. But States, required or permitted to be given if, within the meaning of that act, the with one or more sureties, it should be law- United States is the plaintiff in the action, ful to accept such instrument from a cor- then jurisdiction exists in a circuit court poration having power to guarantee the without regard to such value. United fidelity of persons holding positions of pub-States v. Sayward, 160 U. S. 493, 40 L. lic or private trust, and to execute and ed. 508, 16 Sup. Ct. Rep. 371; United guarantee bonds and undertakings in judi- States v. Shaw, 3 L.R.A. 232, 39 Fed. 433; cial proceedings. The act provided that any United States v. Kentucky River Mills, 45 surety company doing business under the Fed. 273; United States v. Reid, 90 Fed. provisions of that act "may be sued in re- 522. spect thereof in any court of the United The contention of the Fidelity Company States which has now or hereafter may have is that the government, in this case, is to jurisdiction of actions or suits upon such be deemed a nominal party only, its name recognizance, stipulation, bond, or under- being used as plaintiff simply under the autaking, in the district in which such re-thority of the above act of 1894, chap. 280. cognizance, stipulation, bond, or undertaking In support of this position our attention is was made or guaranteed, or in the district called to the following, among other cases: in which the principal office of such com- Browne v. Strode, 5 Cranch, 303, 3 L. ed. pany is located.” 28 Stat. at L. 279,

28 Stat. at L. 279, § 5, 108; McNutt v. Bland, 2 How. 9, 14, 11 L. chap. 282, U. S. Comp. Stat. 1901, p. 2316. ed. 159, 161; Maryland use of Markley v.

Proceeding under the above acts the Unit- Baldwin, 112 U. S. 490, 28 L. ed. 822, 5 Sup. ed States, in 1899, made a written contract ct. Rep. 278; Stewart v. Baltimore & O. with one Churchyard to furnish labor, ma- R. Co. 168 U. S. 445, 42 L. ed. 537, 18 Sup. terials, tools, and appliances for the con- ct. Rep. 105. struction of a public building, taking from Browne v. Strode was a suit in the circuit him the required bond with the United court for the district of Virginia in which States Fidelity & Guaranty Company, a the persons named in the declaration as corporation, as surety.

plaintiffs were justices of the peace, all citiThe present action, brought in the circuit zens of Virginia. The suit was on a bond court on that bond, was by the United given by an executor in conformity with States, “suing herein for the benefit and on a Virginia statute, and was for the recovery behalf of James S. Kenyon," who furnished of a debt due from the testator in his life

time to an alien, a British subject. The de- of the United States is concerned, as though fendant was a citizen of Virginia. This Markley was alone named as plaintiff; and court held that the circuit court had juris- the action was properly removed to that diction, notwithstanding the justices and court." the defendant were all citizens of the same Stewart v. Baltimore & O. R. Co. was an state. This was, we assume, upon the action against a railroad company by an ground that the justices were nominal par- administrator to recover damages for the ties only, while the beneficial party was an benefit of a widow whose husband's death alien, and the defendant a citizen of the was alleged to have been caused by the negstate in which the suit was brought. ligence of the defendant company. In the

McNutt v. Bland was a suit upon a bond course of the discussion of the controlling given by a sheriff and running to the gov- questions in that case, the court observed, ernor of the state, conditioned for the faith in passing, that, "for purposes of jurisdicful performance of the duties of his office. tion in the Federal courts, regard is had to The statute authorized suit to be brought the real rather than to the nominal party,” and prosecuted from time to time at the and that, even in an action of tort, “the cost of any party injured until the whole real party in interest is not the nominal amount of the penalty was recovered. The plaintiff, but the party for whose benefit the suit was brought in the name of the govern- recovery is sought.” or for the use of certain parties who were This case differs from those just cited, citizens of New York. The court held that and stands, we think, on exceptional grounds. the sheriff and his sureties, citizens of The United States is not here a merely nomMississippi, could be sued by the parties in inal or formal party. It has the legal right, interest in their own name, and that no was a principal party to the contract, and, sound reason could be perceived “for deny in view of the words of the statute, may ing the right of prosecuting the same cause be said to have an interest in the performof action against the sheriff and his sure- ance of all its provisions. It may be that ties in the bond, by and in the name of the the interests of the government, as involved governor, who is a purely naked trustee for in the construction of public works, will be any party injured. He is a mere conduit subserved if contractors for such works are through whom the law affords a remedy to able to obtain materials and supplies with the person injured by the acts or omissions certainty and promptly. To that end Conof the sheriff; the governor cannot prevent gress may have deemed it important to asthe institution or prosecution of the suit, sure those who furnish such materials and nor has he any control over it. The real and supplies that the government would exert only plaintiffs are the plaintiffs in the ex- its power directly for their protection. It ecution, who have a legal right to make the may well have thought that the government bond available for their indemnity, which was under some obligation to guard the inright could not be contested in a suit in a terests of those whose labor and materials state court of Mississippi, nor in a cir- would go into a public building. Hence, the cuit court of the United States, in any statute required that, in addition to a penal other mode of proceeding than on the sher- bond in the usual form, one should be taken iff's bond."

that would contain the specific, special obMaryland use of Markley v. Baldwin, 112 ligation directly to the United States that U. S. 490, 492, 28 L. ed. 822, 823, 5 Sup. the contractor or contractors "shall promptCt. Rep. 278, 279, was an action in a stately make payments to all persons supplying court on an administrator's bond in the him or them labor and materials in the name of the state for the benefit of one prosecution of the work." The government Markley, a citizen of New Jersey, the obli- is a real party here because the declaration gors in the bond being citizens of Maryland. opens, "The United States, suing herein for The action was removed to the circuit court the benefit of and on behalf of James Kenof the United States. After referring to yon

comes and complains," and althe cases of Browne v. Strode and McNuttleges that the “defendants became and are v. Bland, the court said: "The justices of indebted to the United States for the benefit the peace in the one case and the governor of the said James S. Kenyon.” In a large in the other were mere conduits through sense the suit has for its main object to whom the law afforded a remedy to per- enforce that provision in the bond that sons aggrieved, who alone constituted the requires prompt payments by the contractor complaining parties. So, in the present to material men and laborers. The bond is case, the state is a mere nominal party; she not simply one to secure the faithful percould not prevent the institution of the ac- formance by the contractor of the duties he tion, nor control the proceedings or the judg- owes directly to the government in relament therein. The case must be treated, so tion to the specific work undertaken by far as the jurisdiction of the circuit court him. It contains, as just stated, a special

.

stipulation with the United States that the brought by the United States within six contractor shall promptly make payments months after completion of the contract, to all persons supplying labor and materials then the person supplying labor or material in the prosecution of the work specified in to the contractor “shall have a right of his contract. This part of the bond, as did action, and shall be and are hereby auits main provisions, ran to the United thorized to bring suit in the name of the States, and was therefore enforceable by United States in the circuit court of the suit in its name. We repeat, the present United States in the district in which said action may fairly be regarded as one by contract was to be performed and executed, the United States itself to enforce the spe- irrespective of the amount in controversy in cific obligation of the contractor to make such suit, and not elsewhere, for his or their prompt payment for labor and materials fur- use and benefit, against said contractor and nished to him in his work. There is, there his sureties, and to prosecute the same to fore, a controversy here between the United final judgment and execution.” States and the contractor in respect of that It is true that this statute can have no matter. The action is none the less by the direct application here, because the present government as a litigant party, because only action was instituted long prior to its pasone of the persons who supplied labor or sage and after the trial court had decided materials will get the benefit of the judg- the question of the jurisdiction of the cirment. We are of opinion, in view of the cuit court. As the act of 1905 does not peculiar language of the act of 1894 for the refer to cases pending at its passage, the protection as well of the United States as question of jurisdiction depends upon the of all persons furnishing materials and labor law as it was when the jurisdiction of the for the construction of public works, that circuit court was invoked in this action. it is not an unreasonable construction of the Nevertheless, that act throws some light on words in the judiciary act of 1887, 1888, the meaning of the act of 1894, chap. 280, “or in which controversy the United States for the protection of material men and laborare plaintiffs or petitioners,” to hold that ers, and tends to sustain the view based on the United States is a real, and not a mere the latter act, namely, that, in suits brought nominal, plaintiff in the present action, and in the name of the government for their therefore that the circuit court had juris- benefit, the United States is a real litigant, diction.

not a mere nominal party, and that, of This interpretation of the statute finùs such suits, the government being plaintiff some support in the above act of 1894, chap. therein, and having the legal right, the cir282, passed the same day as the act chap. cuit court may take original cognizance 280, for the protection of material men and without regard to the value of the matter laborers, and which provides that suits in dispute. There are cases which take the against a fidelity or guaranty corporation, opposite view, but the better view, we think, accepted as surety in any recognizance, stip is the one expressed herein. ulation, bond, or undertaking given to the The judgment is affirmed. United States, may be sued in any court of the United States having jurisdiction of

Mr. Justice Brewer dissents. suits upon such instrument. There is in that act no express limitation as to the amount involved in suits of that character in either of the acts passed in 1894. Tak- WESTERN TURF ASSOCIATION, Piff. in ing the two acts together, there is reason to say that Congress intended to bring all suits embraced by either act, when brought

HYMAN GREENBERG. in the name of the United States, within the Error to state court-Federal question. original cognizance of the circuit courts of

1. The judgment of the highest court of the United States, without regard to the a state, sustaining, as a legitimate exertion amount in dispute. And this view as to of the police power of the state, a statute the intention of Congress is strengthened the validity of which was challenged as reby an examination of the act of February | pugnant to the Federal Constitution, is 24th, 1J05 (33 Stat. at L. 811, chap. 778, reviewable in the supreme Court of the U. S. Comp. Stat. Supp. 1905, p. 493), United States by writ of error. * which amends the above statute of 1894, Constitutional law-equal protection of the chap. 280. After providing that persons sup

laws-regulating admission to places of plying labor and materials for the con

public amusement.

2. The lessee in possession of a race struction of a public work shall have the

course is not denied the equal protection of right to intervene in any suit brought by the laws by a state statute under which it the United States against the contractor. is compelled to recognize its own tickets that act declares that, if no such suit is' of admission in the hands of persons who

Err.,
V.