Counsel for Appellant.

at lock and dam No. 7, the present value of said lock and dam No. 7 is not less than $450,000, said value being predicated upon said present and prospective tolls; that said lock and dam No. 7 are a portion of said company's works, which consist of seven dams, each furnished with a lock or locks.

"That the navigation which is sought by these proceedings to be made free was mainly created and made possible at all seasons by the construction and maintenance of the company's works.

"That a large portion of the tolls received by the company is charged upon merchandise and articles carried between points of shipment and delivery entirely within the State of Pennsylvania, and constituting internal commerce of said State, and that a portion of the tolls collectible at lock and dam No. 7, for the use of said lock and dam, is clfargeable for merchandise, goods and passengers carried between points of shipment and delivery in the State of Pennsylvania, the transportation being wholly within the State as to said portion.

"To which offer of testimony counsel for the United States objected, for the reason that the same was incompetent and irrelevant; whereupon the court sustained the objection and rejected the evidence."

The result of the trial was a finding by the court that the value of the lock and dam number seven was $209,000,"not considering or estimating in this decree the franchise of this company to collect tolls." Such amount was the sum adjudged and decreed to be paid by the United States to the Navigation Company for the property condemned. The company brought the case to this court by both writ of error and appeal.

Mr. Wayne McVeagh and Mr. Johns McCleave, (with whom was Mr. Thomas D. Carnahan on the brief,) for appek lant and plaintiff in error, cited Cardwell v. American Bridge Co., 113 U. S. 205; Willson v. Blackbird Creek Marsh Co., 2 Pet. 245; Pound v. Turck, 95 U. S. 459; Huse v. Glover, 119 U. S. 543; Sands v. Manistee River Improvement Co., 123 U. S. 288; Charles River Bridge v. Warren Bridge, 11 Pet. 420; Pennsylvania Railroad v. Balt. & Ohio Railroad, 60

Argument for Appellees.

Maryland, 263; Commonwealth v. Pittsburgh & Connellsville Railroad, 58 Penn. St. 26; Isom v. Miss. Central Railroad, 36 Mississippi, 300; United States v. Great Falls Mfg. Co., 112 U. S. 645; Bridge Company v. United States, 105 U. S. 470 ; County of Mobile v. Kimball, 102 U. S. 691; Packet Co. v. Keokuk, 95 U. S. 80; Montgomery County v. Schuylkill Bridge Co., 110 Penn. St. 54.

Mr. Attorney General and Mr. Solicitor General for appellees and defendants in error.

The principal question at bar is whether the proviso in the River and Harbor Act of August 11, 1888, is valid. This question was raised in various forms upon the trial, the contention of the appellant being that the franchise is no less property than the material structure of the lock and dam, and that therefore the same cannot be taken or destroyed by the government, directly or indirectly, without compensation. On behalf of the government, on the contrary, it was claimed by the district attorney, and held by the court, that the right of the United States to regulate and absolutely control the navigation of the Monongahela River was supreme and paramount; that it was not within the power of the State to grant to any corporation or persons a franchise in, or connected with, the navigation of said river which was not wholly subordinate to the rights of the United States; that any franchise granted by the State had, as matter of law, necessarily within. it, as a condition, that it might be terminated at any time. by an act of the United States, and that therefore no injury entitled to compensation could accrue to any party claiming such franchise, by reason of the exercise of such paramount right by the United States.

I. Has the appellant, as against the United States, a vested property in the franchise to maintain and take toll for the use of this lock and dam? By clause 3, section 8, article 1, of the Constitution, there is vested in Congress power "to regulate commerce with foreign nations, and among the several States, and with the Indian tribes." Under this grant

Argument for Appellees.

the authority of Congress to control the navigation of all streams which are highways of commerce between the States has been uniformly asserted by Congress and never succ fully denied in the courts. It is true there are numerous decisions upholding the exercise of a regulating power over such channels of commerce by the States, but in every case it has been admitted that such exercise could be upheld only because and so long as Congress failed to assert its jurisdiction.

It is presumed that it will not be questioned by appellants that the Monongahela River, at the point under discussion, was a navigable channel of interstate commerce. Certainly such a contention could not be successfully maintained. Escanaba Company v. Chicago, 107 U. S. 678; Barney v. Keokuk, 94 U. S. 324; The Montello, 20 Wall. 430; The Genesee Chief, 12 How. 443; Bridge Co. v. United States, 105 U. S. 470; Gilman v. Philadelphia, 3 Wall. 713; Willamette Bridge Co. v. Hatch, 125 U. S. 1.

In Bridge Co. v. United States, Chief Justice Waite, delivering the opinion of the court, said (at page 479): "the power of Congress in respect to legislation for the preservation of interstate commerce is just as free from State interference as any other subject within the sphere of its legislative authority. The action of Congress is supreme, and overrides all that the States can do. Where, therefore, Congress in a proper way declares a bridge across a navigable river of the United States to be an unlawful structure, no legislation of a State can make it lawful. Those who act on state authority alone necessarily assume all the risks of legitimate Congressional interference." This case is instructive, not only in the clearness of the opinion of the Chief Justice, speaking for the majority of the court, but because the dissenting opinions bring out with more distinctness the points decided.

In The Willamette Bridge Case, the late Mr. Justice Bradley, in the opinion of the court, said (p. 12): "We do not doubt. that Congress, if it saw fit, could thus assume the care of said streams, in the interest of foreign and interstate commerce; we only say that, in our opinion, it has not done so by the clause in question. And although, until Congress acts, the

VOL. CXLVIII-21

Argument for Appellees.

States have the plenary power supposed, yet, when Congress chooses to act, it is not concluded by anything that the States, or individuals by its authority or acquiescence, have done, from assuming entire control of the matter, and abating any erections that may have been made, and preventing any others from being made, except in conformity with such regulations as it may impose. It is for this reason, viz., the ultimate (though yet unexerted) power of Congress over the whole subject matter, that the consent of Congress is so frequently asked to the erection of bridges over navigable streams. It might itself give original authority for the erection of such bridges when called for by the demands of interstate commerce by land; but in many, perhaps the majority, of cases, its assent only is asked, and the primary authority is sought at the hands of the State." The Willamette Bridge and The Escanaba Bridge cases above cited. See also Gilman v. Philadelphia, 3 Wall. 713; Martin v. Mott, 12 Wheat. 19; Luther v. Borden, 7 How. 1, 43.

III. The foregoing propositions being established, the maintenance of appellant's contention that it has in this franchise. a vested property as against the United States is impossible. The truth is that in condemning and paying the appellant for its material improvements Congress makes a concession which could not have been enforced by law. It was entirely competent for Congress to have enacted and enforced a law forbidding the collection of any further tolls by this corporation, as being an unlawful obstruction or interference with interstate commerce, making in said law no provision whatever for any payment to the owners of the property. It has not, however, seen fit to enforce the extreme legal rights of the Government, but recognizing the large expenditures of money made by this company, and the equity growing out of such expenditures, provision has been made for the reimbursement of all such expenditures. Veazie Bank v. Fenno, 8 Wall. 533, 547. IV. But not only is the demand for compensation on account of the destruction of this franchise unfounded as against the United States, but such a demand could not be maintained even against the State of Pennsylvania. In the legis

Argument for Appellees.

lation constituting the charter of appellant, through which alone it obtains any rights in the premises, the State distinctly reserved the option to take possession of this property upon the payment of the cost of material improvements, and expenses, with six per cent interest, less dividends.

In view of these enactments, it is clear that this corporation has no contract with the State of Pennsylvania for an unlimited franchise. Its property is always subject to be taken by the State as provided in the sections quoted. Much less can appellant demand compensation for the franchise from the government of the United States, with which it has no contract in the premises, and which is simply exercising a paramount authority derived directly from the Constitution of the United States, the supreme law of the land.

V. It is said that by the act of March 3, 1881, (21 Stat. 471,) Congress has impliedly recognized and confirmed a vested. right in the premises.

To this proposition there are two very ready answers. First: the legislation of 1881 does not by its terms amount to a contract between the government and appellant in the premises. The Bridge Company v. The United States, 105 U. S. 570. Second: it is incompetent for a legislature to barter away or conclude itself in the exercise of any constitutional grant of legislative power. The legislature of Pennsylvania, itself, has held that the right of the Navigation Company in the case at bar is a revocable license. Monongahela Navigation Co. v. Coons, 6 W. & S. 101; Susquehanna Canal Co. v. Wright, 9 W. & S. 9; S. C. 42 Am. Dec. 312; New York & Erie Railroad v. Young, 33 Penn. St. 175; McKeen v. Delaware Canal Co., 49 Penn. St. 424; Freeland v. Pennsylvania Railroad, 66 Penn. St. 91. See also Bailey v. Phil. Wilm. & Balt. Railroad, 4 Harr. (Del.) 389; S. C. 44 Am. Dec. 593; Rundle v. Del. & Raritan Canal Co., 14 How. 80.

In conclusion, we submit that the power of Congress over this subject matter is plenary. In re Rapier, 143 U. S. 110, 134.

Mr. C. Newell and Mr. D. T. Watson also filed a brief for appellee.