Railroad-Bridges across the Mississippi River. RAILROAD-BRIDGES ACROSS THE MISSISSIPPI RIVER. Provisions of the acts of April 1, 1872, chap. 73, and June 4, 1872, chap. 281, relative to the location and construction of railroad-bridges across the Mississippi River, examined, and the authority of the Secretary of War in the premises stated and defined. DEPARTMENT OF JUSTICE, June 7, 1873. SIR: The Milwaukee and Saint Paul Railway Company having, under authority of an act of Congress approved April 1, 1872, (17 Stat., 44,) located their railway-bridge to cross the Mississippi River at the city of La Crosse, Wisconsin, and submitted their location, with plans of bridge, for your approval, your communication of the 16th ultimo states the following questions for opinion: 1. Does the act of June 4, 1872, confer on the Secretary of War any other authority than to inquire whether or not a bridge erected at the site chosen by the railroad company would obstruct the navigation of the river, or be inconvenient of access to other railroads? 2. In determining the question of convenience of access in respect to other railroads, whether the Secretary of War is to consider only such roads as are now constructed or in process of construction, or whether he may take into consideration any roads contemplated to be made; and 3. Whether the act of June 4, 1872, confers on the Secretary of War the power to locate said bridge, or can he merely approve or disapprove of the location made by the company, as provided by section 5 of the act of April 1, 1872. The act of April 1, 1872, authorized the construction of four bridges across the Mississippi. Its 1st section authorized the building of a bridge at such point on the river, within fifteen miles of the town of Clinton, Iowa, as might "accommodate the Chicago, Burlington and Quincy Railroad and its connections on the west side of the river," &c. The 2d section specified the plan of the bridge; the 3d provides that it shall be a post-route; and the 4th that all railway companies desiring to use it shall have equal rights and Railroad-Bridges across the Mississippi River. privileges in its passage, in the use of its machinery and fixtures, and in the approaches to it, "under and upon such terms and conditions as shall be prescribed by the Secretary of War, upon hearing the allegations and proofs of the parties, in case they shall not agree." The 5th section is as follows: "That the structure herein authorized shall be built and located under and subject to such regulations for the security of navigation of said river as the Secretary of War shall prescribe, and the said structure shall be at all times so kept and managed as to offer reasonable and proper means for the passage of vessels through or under said structure, and the said structure shall be changed at the cost and expense of the owners thereof, from time to time, as Congress may direct, so as to preserve the free and convenient navigation of said river. And the authority to erect and continue said bridge shall be subject to revocation and modification by law whenever the public good shall, in the judgment of Congress, so require, without any expense or charge to the United States." By the 6th section, the Muscatine Western Railroad Company is authorized to build a bridge across the river at the city of Muscatine, Iowa; by the 7th, authority is given to the Western Union Railroad Company, or another company named, or both, to construct a bridge" at any point they may select," between the counties of Carroll and Whitesides, Illinois, and the counties of Jackson and Clinton, Iowa; and by the 8th section the Milwaukee and Saint Paul Railway Company have authority to build a bridge "at any point they may select," between the county of La Crosse, in the State of Wisconsin, and the county of Houston, in the State of Minnesota. Each of the sections authorizing the building of the three last-named bridges has the following provision: "The bridge authorized to be built by this section is hereby declared to be a post-route, and has all the privileges, and is subject to all the terms, restrictions, and requirements contained in the foregoing sections of this act." The duty prescribed to the Secretary of War in this act relates to two particulars; the more important of the two concerning the freedom and security of navigation. The bridges are to be "built and located under and subject to Railroad-Bridges across the Mississippi River. such regulations for the security of navigation as the Secre tary of War shall prescribe;" and next, he is to see to it that all railway companies desiring to use the bridges shall have equal rights and privileges in the passage of the same, &c. The first of these duties devolved upon the Secretary requires him to determine whether a proposed location of either of the bridges will (to use the language of the decisions relating to the subject) materially obstruct navigation; every bridge across a navigable river, no matter how carefully located or constructed, being in common understanding supposed to be in some degree obstructive to navigation. If he shall find that a bridge at the proposed location will materially obstruct navigation, upon his disapproval it will not be lawful to build a bridge at that location. He may modify the proposed location, as, for instance, by prescribing the connections of the bridge with the banks of the river, protections for the preservation of the banks, the direction of the bridge, and the location of piers in reference to the channel of the river; and he may prescribe other regulations as to details and plan of construction, in harmony with the requirements in relation thereto contained in the 2d section of the act; all such regulations as to location and construction looking to "the security of navigation," the principal end cared for in all the acts authorizing the building of bridges over the Mississippi and other navigable rivers and waters. But, obviously, this authority to "prescribe regulations" for location and construction does not empower the Secretary to locate a bridge for either of the corporations authorized by the act to build such bridge, or, in other words, to require the bridge to be built between any two points on the river which he may select. The corporation or person authorized by the act is to locate and build the bridge, submitting the location and plan to his judgment. He is to determine, first, whether the location will involve a material obstruction to navigation. If he shall think that it will not, his approval, so far as that consideration is concerned, is due. His authority as to the matter of location is conveyed in the clause "shall be built and located under and subject to such regulations for the security of navigation of said river as the Secretary of War shall prescribe," and he is not more authorized by these words Railroad-Bridges across the Mississippi River. to locate the bridges than he is to build them. It is hardly to be understood that they authorize him to build the bridges, But, further, it is to be observed in the case of the Milwau. kee and Saint Paul Company that it is authorized to build its bridge at any point it may select between two counties; that is, in fact, at any point on the river within a reach of twelve or fifteen miles. So, then, the selection of a site within that distance is the privilege of the company. Whether that selection is objectionable because a bridge built at the site would interfere with free navigation, or be inconvenient of access to other railways so located as to need the use of it, is for the Secretary of War to determine. He can approve or disapprove, but the act does not give him authority to locate. Next, he is to consider the convenience of "railway companies desiring to use" the bridges. If he shall find that a bridge crossing the river at the location submitted will, in addition to its non-interference with free navigation, be convenient of access to railway companies desiring to use it, the conditions to justify his approval are satisfied. This seems to me to be the measure of the authority of the Secretary of War in regard to the location of the bridges under the terms of this act. Your second question (what I have above said being in reply to your first and third) is, whether the requirement as to convenience of access for other railroads than that of the company authorized to build a bridge relates only to roads now constructed or in process of construction, or, also, to roads con. templated. The words of the said act of April 1, on this subject, refer to railway companies "desiring to use" the bridges. Under this language I should consider that the convenience of railway companies authorized to cross the river at the time when the Secretary is to exercise his supervisory authority, and showing an intention to avail themselves of the privilege of passage by the proposed bridge, must be consulted; but that it is not obligatory upon the Secretary to inquire and decide as to the possibility or probability that a company contemplating the construction of a road may desire to use a bridge. This would be to exercise prospective authority over the railway system in the important matter of transit over the Mississippi, probably not contemplated by Congress. After requiring that all bridges hereafter constructed over Railroad-Bridges across the Mississippi River. and across the Mississippi River, under authority of an act of Congress, shall be subject to all the terms, restrictions, and requirements of the 5th section of the act of April 1, the act of June 4, referred to by you, reads as follows: "And in locating any such bridge, the Secretary of War shall have due regard to the security and convenience of navigation, to convenience of access, and to the wants of all railways and ighways crossing said river." These two acts are in pari materia, and are to be taken and considered together as one act. I do not think that the latter act intends to do more than to add somewhat to those matters named in the former which the Secretary of War is to take into consideration when he comes to act upon the location and plan of bridge made and proposed by the company. Section 5 of the act of April makes provision for the "security" of navigation, but the expression is extended in the act of June so as to read "security and convenience" of navigation. Particular inquiry as to the effect of this new phraseology is unnecessary, for under either act it would seem to be the duty of the Secretary to see that the interests of navigation are not interfered with by the bridge further than is necessary for its construction under the grants and limitations of the acts in question. I think that the construction herein before given to the words "desire to use," in the act of April, sufficiently explains what I understand the words "convenience of access and wants of all railways" to mean, as they occur in the act of June. With respect to the subject of highways, I respectfully refer to my opinion of August 7, 1872, (see ante, p. 92.) To sum up all the questions, I should think the proper mode of procedure would be for the company to submit its location and plan of a bridge to the Secretary, and if he finds that they do not interfere with the navigation of the river more than is necessary to construct the bridge as provided for in section 2 of the act of April, and that, with a due regard to the interests of the company, it is convenient of access and use by other railways proposing to cross upon it, then the Secretary's approval ought to be given; but if he has objections on any of said grounds, the company, when they are made known, ought to have an opportunity to obvi |