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navigation on all water ways of the United States against unreasonable obstructions, even those created under the sanction of a state, and that an order to so alter a bridge over a water way of the United States that it will cease to be an unreasonable obstruction to navigation will not amount to a taking of private property for public use for which compensation need be made.

bridge specified in the order of the Secre- | which the Bridge Company contends would tary of War will be a taking of the pop- 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 deemed incidental to the exercise by the government of its power to regulate commerce among the states, which includes, as we have seen, the power to secure free navigation upon the water ways of the United States against unreasonable obstructions. There are no circumstances connected with the original construction of the bridge, or with its maintenance since, which so tie the hands of the government that it cannot exert its full power to protect the freedom of navigation against obstructions. Although the bridge, when erected under the authority of a Pennsylvania charter, may have been a lawful structure, and although it may not have been an unreasonable obstruction to commerce and navigation as then carried on, it must be taken, under the cases cited, and upon principle, not only that the company, when exerting the power conferred upon it by the state, did so with knowledge of the paramount authority of Congress to regulate commerce among the states, but that it erected the bridge subject to the possibility that Congress might, at some future time, when the public interest demanded, exert its power by appropriate legislation to protect navigation against unreasonable obstructions. Even if the bridge, in its original form, was an unreasonable obstruction to navigation, the mere failure of the United States, at the time, to intervene by its officers or by legislation and prevent its erec-interrupt the navigation, either then or now, tion, could not create an obligation on the part of the government to make compensation to the company if, at a subsequent time, and for public reasons, Congress should forbid the maintenance of bridges that had become unreasonable obstructions to navigation. It is for Congress to determine when it will exert its power to regulate in

terstate commerce. Its mere silence or inaction when individuals or corporations, under the authority of a state, place unreasonable obstructions in the water ways of the United States, cannot have the effect to cast upon the government an obligation not to exert its constitutional power to regulate interstate commerce except subject to the condition that compensation be made or secured to the individuals or corporation who may be incidentally affected by the exercise of such power. The principle for

Independent of the grounds upon which we thus place our decision, it is appropriate to observe that the conclusion reached finds support in the charter of the Bridge Company and in the law of Pennsylvania, as declared by its highest court. The charter of the company, as we have seen, expressly warned the company that its bridge must not obstruct navigation, that is, in legal effect, navigation as it then was, or might be, at any subsequent time. In Dugan v. Bridge Co. 27 Pa. 303, 309, 311, 67 Am. Dec. 464, we have the case of a bridge company on which was conferred the franchise to erect and maintain a toll-bridge across Monongahela river, coupled, however, with the condition that such bridge should not be erected "in such manner as to injure, stop, or interrupt the navigation of such river by boats, rafts, or other vessels." The supreme court of Pennsylvania interpreted these words as meaning that "the bridge was to be so built as not to injure, stop, or

whether in its infancy or full growth." The
same general question arose in Chicago, B.
& Q. R. Co. v. Illinois, 200 U. S. 589, 50 L.
ed. 607, 26 Sup. Ct. Rep. 348. This
court held that the adjudged cases "nega-
tive the suggestion of the railway company
that the adequacy of its bridge and the
opening under it for passing the water of
the creek at the time the bridge was con-
structed determine its obligations to the
public at all subsequent periods. In Cooke
v. Boston & L. R. Corp. 133 Mass. 185, 188,
it appeared that a railroad company had
statutory authority to cross a certain high-
way with its road. The statute provided
way with its road.
that if the railroad crossed any highway
it should be so constructed as not to im-
pede or obstruct the safe and convenient use
of the highway. And one of the conten-

V.

UNITED STATES OF AMERICA, Suing for
ne Benefit of James S. Kenyon, Doing
Business as Burrows & Kenyon.
Courts-jurisdiction of Federal circuit court
-United States as plaintiff.

The United States is the real, and not merely the nominal, plaintiff, so as to sustain the original jurisdiction of a Federal circuit court under the judiciary acts of 1887, 1888 (24 Stat. at L. 552, chap. 373, 25 Stat. at L. 433, chap. 866, U. S. Comp. Stat. 1901, p. 508), without regard to the amount in dispute, in a suit authorized by the act of August 13, 1894 (28 Stat. at L. 279, § 5, chap. 282, U. S. Comp. Stat. 1901, p. 2316), to be brought in its name, for the use and benefit of a material man, upon the bond of a contractor for a public work, which the statute requires shall contain the specific, special obligation directly to the United States that the contractor shall promptly labor and materials in the prosecution of make payments to all persons supplying him the work.

tions of the company was that the statute | UNITED STATES FIDELITY & GUARANlimited its duty and obligation to provide TY COMPANY, Plff. in Err., for the wants of travelers at the time it exercised the privilege granted to it. The court said: "The legislature intended to provide against any obstruction of the safe and convenient use of the highway for all time; and if, by the increase of population in the neighborhood, or by an increasing use of the highway, the crossing, which, at the outset, was adequate, is no longer so, it is the duty of the railroad corporation to make such alteration as will meet the present needs of the public who have occasion to use needs of the public who have occasion to use the highway. In Lake Erie & W. R. Co. v. Cluggish, 143 Ind. 347, 42 N. E. 743, the court said (quoting from Lake Erie & W. R. Co. v. Smith, 61 Fed. 885): "The duty of a railroad to restore a stream or highway which is crossed by the line of its road is a continuing duty; and if, by the increase of population or other causes, the crossing becomes inadequate to meet the new and altered conditions of the country, it is the duty of the railroad to make such alterations as will meet the present needs of the public.' So, in Indiana ex rel. Muncie 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 streets of a city, the court said: 'If, by the growth of population or otherwise, the crossing has become inadequate to meet the present needs of the public, it is the duty of the railroad company to remedy the defect by restoring the crossing so that it will not unnecessarily impair the usefulness of the highway."

Some stress was laid in argument upon the fact that compliance with the order of the Secretary of War will compel the Bridge

Company to make a very large expenditure

[No. 173.]

ary 25, 1907.

N ERROR to the Circuit Court of the United States for the District of Rhode tiff in an action brought by the United Island to review a judgment for the plainStates, for the use and benefit of the material man, upon the bond of a contractor for a public work. Affirmed.

See same case below, 132 Fed. 82.
The facts are stated in the opinion.
Messrs. Seeber Edwards, George S. Coop-
er, and James E. Smith for plaintiff in error.

Mr. Edward D. Bassett for defendant in error.

Mr. Justice Harlan delivered the opinion of the court:

in money. But that consideration cannot affect the decision of the questions of constitutional law involved. It is one to be addressed to the legislative branch of the 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 corporation incidentally suffering from the exercise by the national government of its constitutional powers.

These are all the matters which require notice at our hands; and, perceiving no error of law on the record, the judgment must be affirmed.

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Labor for the Construction of Public Works," it was provided: "That hereafter any person or persons entering into a formal contract with the United States for the construction of any public building, or the prosecution and completion of any public work, or for repairs upon any public building or public work, shall be required, before commencing such work, to execute the usual penal bond, with good and sufficient

Mr. Justice Brewer and Mr. Justice Peck- sureties, with the additional obligations ham dissent.

Mr. Justice Moody did not participate in the consideration or decision of the case.

that such contractor or contractors shall promptly make payments to all persons supplying him or them labor and materials in the prosecution of the work provided for in

The defendant, the United States Fidelity & Guaranty Company, pleaded that it did not owe the sum demanded. The plaintiff introduced testimony, but the defendant introduced none, and it appearing upon the face of the declaration that the value of the matter in dispute was less than $2,000, it moved that the action be dismissed for want of jurisdiction in the circuit court. That motion was denied, and judgment for $206.47 was entered against the Fidelity & Guaranty Company for the use and benefit of Kenyon. United States v. Churchyard, 132 Fed. 82.

This case is here upon a certificate as to the original jurisdiction of the circuit court of the United States of this action.

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 for which has not been made, shall be furnished with a certified copy of said contract and bond, upon which said person or persons supplying such labor and materials shall have a right of action, and shall be authorized to bring suit in the name of the United States for his or their use and benefit against said contractor and sureties, and to prosecute the same to final judgment and execution: Provided, That such action and its prosecutions shall involve the United States in no expense. Sec. 2. Provided, that in such case the court in which such action is brought is authorized to require proper security for costs in case judgment is for the defendant." 28 Stat. at L. 278, chap. 280, U. S. Comp. Stat. 1901, p. 2523. On the same day-August 13th, 1894Congress passed an act providing that whenever any recognizance, stipulation, bond, or undertaking conditioned for the faithful performance of any duty, or for doing or refraining from doing anything in such recognizance, stipulation, bond, or undertaking specified, is, by the laws of the United States, required or permitted to be given with one or more sureties, it should be lawful to accept such instrument from a corporation having power to guarantee the fidelity of persons holding positions of public or private trust, and to execute and guarantee bonds and undertakings in judicial proceedings. The act provided that any surety company doing business under the provisions of that act "may be sued in respect thereof in any court of the United States which has now or hereafter may have jurisdiction of actions or suits upon such recognizance, stipulation, bond, or undertaking, in the district in which such recognizance, stipulation, bond, or undertaking was made or guaranteed, or in the district in which the principal office of such company is located." 28 Stat. at L. 279, § 5, chap. 282, U. S. Comp. Stat. 1901, p. 2316. Proceeding under the above acts the United States, in 1899, made a written contract with one Churchyard to furnish labor, materials, tools, and appliances for the construction of a public building, taking from him the required bond with the United States Fidelity & Guaranty Company, a corporation, as surety.

The present action, brought in the circuit court on that bond, was by the United States, "suing herein for the benefit and on behalf of James S. Kenyon," who furnished

But

A circuit court of the United States, as provided in the judiciary acts of 1887, 1888, may take original cognizance of any suit, at common law or in equity, arising under the laws of the United States, if the value of the matter in dispute exceeds $2,000, exclusive of interest and costs. [24 Stat. at L. 552, chap. 373] 25 Stat. at L. 433, chap. 866, U. S. Comp. Stat. 1901, p. 508. if, within the meaning of that act, the United States is the plaintiff in the action, then jurisdiction exists in a circuit court without regard to such value. United States v. Sayward, 160 U. S. 493, 40 L. ed. 508, 16 Sup. Ct. Rep. 371; United States v. Shaw, 3 L.R.A. 232, 39 Fed. 433; United States v. Kentucky River Mills, 45 Fed. 273; United States v. Reid, 90 Fed. 522.

The contention of the Fidelity Company is that the government, in this case, is to be deemed a nominal party only, its name being used as plaintiff simply under the authority of the above act of 1894, chap. 280. In support of this position our attention is called to the following, among other cases: Browne v. Strode, 5 Cranch, 303, 3 L. ed. 108; McNutt v. Bland, 2 How. 9, 14, 11 L. ed. 159, 161; Maryland use of Markley v. Baldwin, 112 U. S. 490, 28 L. ed. 822, 5 Sup. Ct. Rep. 278; Stewart v. Baltimore & O. R. Co. 168 U. S. 445, 42 L. ed. 537, 18 Sup. Ct. Rep. 105.

Browne v. Strode was a suit in the circuit court for the district of Virginia in which the persons named in the declaration as plaintiffs were justices of the peace, all citizens of Virginia. The suit was on a bond given by an executor in conformity with a Virginia statute, and was for the recovery of a debt due from the testator in his life

time to an alien, a British subject. The de- 1 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 state. This was, we assume, upon the ground that the justices were nominal parties only, while the beneficial party was an alien, and the defendant a citizen of the state in which the suit was brought.

McNutt v. Bland was a suit upon a bond given by a sheriff and running to the governor of the state, conditioned for the faithful performance of the duties of his office. The statute authorized suit to be brought and prosecuted from time to time at the cost of any party injured until the whole amount of the penalty was recovered. The suit was brought in the name of the governor for the use of certain parties who were citizens of New York. The court held that the sheriff and his sureties, citizens of Mississippi, could be sued by the parties in interest in their own name, and that no sound reason could be perceived "for denying the right of prosecuting the same cause of action against the sheriff and his sureties in the bond, by and in the name of the governor, who is a purely naked trustee for any party injured. He is a mere conduit through whom the law affords a remedy to the person injured by the acts or omissions of the sheriff; the governor cannot prevent the institution or prosecution of the suit, nor has he any control over it. The real and only plaintiffs are the plaintiffs in the execution, who have a legal right to make the bond available for their indemnity, which right could not be contested in a suit in a state court of Mississippi, nor in a circuit court of the United States, in any other mode of proceeding than on the sheriff's bond."

Maryland use of Markley v. Baldwin, 112 U. S. 490, 492, 28 L. ed. 822, 823, 5 Sup. Ct. Rep. 278, 279, was an action in a state court on an administrator's bond in the name of the state for the benefit of one Markley, a citizen of New Jersey, the obligors in the bond being citizens of Maryland. The action was removed to the circuit court of the United States. After referring to the cases of Browne v. Strode and McNutt v. Bland, the court said: "The justices of the peace in the one case and the governor in the other were mere conduits through whom the law afforded a remedy to persons aggrieved, who alone constituted the complaining parties. So, in the present case, the state is a mere nominal party; she could not prevent the institution of the action, nor control the proceedings or the judgment therein. The case must be treated, so far as the jurisdiction of the circuit court

Stewart v. Baltimore & O. R. Co. was an action against a railroad company by an administrator to recover damages for the benefit of a widow whose husband's death was alleged to have been caused by the negligence of the defendant company. In the course of the discussion of the controlling questions in that case, the court observed, in passing, that, "for purposes of jurisdiction in the Federal courts, regard is had to the real rather than to the nominal party," and that, even in an action of tort, "the real party in interest is not the nominal plaintiff, but the party for whose benefit the recovery is sought."

This case differs from those just cited, and stands, we think, on exceptional grounds. The United States is not here a merely nominal or formal party. It has the legal right, was a principal party to the contract, and, in view of the words of the statute, may be said to have an interest in the performance of all its provisions. It may be that the interests of the government, as involved in the construction of public works, will be subserved if contractors for such works are able to obtain materials and supplies with certainty and promptly. To that end Congress may have deemed it important to assure those who furnish such materials and supplies that the government would exert its power directly for their protection. It may well have thought that the government was under some obligation to guard the interests of those whose labor and materials would go into a public building. Hence, the statute required that, in addition to a penal bond in the usual form, one should be taken that would contain the specific, special obligation directly to the United States that the contractor or contractors "shall promptly make payments to all persons supplying him or them labor and materials in the prosecution of the work." The government is a real party here because the declaration opens, "The United States, suing herein for the benefit of and on behalf of James Kenyon comes and complains," and alleges that the "defendants became and are indebted to the United States for the benefit of the said James S. Kenyon." In a large sense the suit has for its main object to enforce that provision in the bond that requires prompt payments by the contractor to material men and laborers. The bond is not simply one to secure the faithful performance by the contractor of the duties he owes directly to the government in relation to the specific work undertaken by him. It contains, as just stated, a special

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stipulation with the United States that the contractor shall promptly make payments to all persons supplying labor and materials in the prosecution of the work specified in his contract. This part of the bond, as did its main provisions, ran to the United States, and was therefore enforceable by suit in its name. We repeat, the present action may fairly be regarded as one by the United States itself to enforce the specific obligation of the contractor to make prompt payment for labor and materials furnished to him in his work. There is, therefore, a controversy here between the United States and the contractor in respect of that matter. The action is none the less by the government as a litigant party, because only one of the persons who supplied labor or materials will get the benefit of the judgment. We are of opinion, in view of the peculiar language of the act of 1894 for the protection as well of the United States as of all persons furnishing materials and labor for the construction of public works, that it is not an unreasonable construction of the words in the judiciary act of 1887, 1888, "or in which controversy the United States are plaintiffs or petitioners," to hold that the United States is a real, and not a mere nominal, plaintiff in the present action, and therefore that the circuit court had jurisdiction.

This interpretation of the statute finds some support in the above act of 1894, chap. 282, passed the same day as the act chap. 280, for the protection of material men and laborers, and which provides that suits against a fidelity or guaranty corporation, accepted as surety in any recognizance, stipulation, bond, or undertaking given to the United States, may be sued in any court of the United States having jurisdiction of suits upon such instrument. There is in that act no express limitation as to the amount involved in suits of that character

brought by the United States within six months after completion of the contract, then the person supplying labor or material to the contractor "shall have a right of action, and shall be and are hereby authorized to bring suit in the name of the United States in the circuit court of the United States in the district in which said contract was to be performed and executed, irrespective of the amount in controversy in such suit, and not elsewhere, for his or their use and benefit, against said contractor and his sureties, and to prosecute the same to final judgment and execution."

It is true that this statute can have no direct application here, because the present action was instituted long prior to its passage and after the trial court had decided the question of the jurisdiction of the circuit court. As the act of 1905 does not refer to cases pending at its passage, the question of jurisdiction depends upon the law as it was when the jurisdiction of the circuit court was invoked in this action. Nevertheless, that act throws some light on the meaning of the act of 1894, chap. 280, for the protection of material men and laborers, and tends to sustain the view based on the latter act, namely, that, in suits brought in the name of the government for their benefit, the United States is a real litigant, not a mere nominal party, and that, of such suits, the government being plaintiff therein, and having the legal right, the circuit court may take original cognizance without regard to the value of the matter in dispute. There are cases which take the opposite view, but the better view, we think, is the one expressed herein. The judgment is affirmed.

Mr. Justice Brewer dissents.

Err., V.

HYMAN GREENBERG.

Error to state court-Federal question.

in either of the acts passed in 1894. Tak- WESTERN TURF ASSOCIATION, Plff. in ing the two acts together, there is reason to say that Congress intended to bring all suits embraced by either act, when brought in the name of the United States, within the original cognizance of the circuit courts of the United States, without regard to the amount in dispute. And this view as to the intention of Congress is strengthened by an examination of the act of February 24th, 1J05 (33 Stat. at L. 811, chap. 778, U. S. Comp. Stat. Supp. 1905, p. 493), which amends the above statute of 1894, chap. 280. After providing that persons supplying labor and materials for the construction of a public work shall have the right to intervene in any suit brought by the United States against the contractor. that act declares that, if no such suit is

1. The judgment of the highest court of a state, sustaining, as a legitimate exertion of the police power of the state, a statute the validity of which was challenged as repugnant to the Federal Constitution, is reviewable in the supreme Court of the United States by writ of error. * Constitutional law-equal protection of the laws-regulating admission to places of public amusement.

course is not denied the equal protection of 2. The lessee in possession of a race. the laws by a state statute under which it is compelled to recognize its own tickets of admission in the hands of persons who

*Ed. Note.-For cases in point, see vol. 13, Cent. Dig. Courts, § 1051.

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