for any proceedings at law or in equity relative to the two bridges referred to." I have to request that you will advise me whether you are satisfied with the conclusions reached by Mr. Searle, or if not whether you de sire me to further instruct him, and how. Very respectfully, The SECRETARY OF WAR. A. II. GARLAND, Attorney-General. LETTER OF THE DISTRICT ATTORNEY TO THE ATTORNEY-GENERAL OF THE UNITED STATES. DISTRICT OF MINNESOTA, SIR Replying to your letter of 10th ultimo, wherein you instruct me to investigate the statements made by Major Mackenzie, and to report whether in my opinion there is a necessity for any proceedings at law or in equity for the enforcement of the provisions of the act of August (July) 5, 1884, in respect to two bridges now being built across the Mississippi River at Saint Paul, one by the city of Saint Paul, and one by the Minnesota and Northwestern Railroad, and also to advise you under what authority the railroad is building its bridge, I have to say that immediately upon receipt of the same I communicated with the city and the railroad officials relative to the matters therein referred to, and have just received this day a reply thereto from the mayor of Saint Paul. Hence my delay in replying. (1) In regard to the city bridge.-Upon examining the proposed site of this bridge I find that no steps have been taken as yet towards its construction, and from copies of letters which you inclosed me from Mayor and City Engineer of Saint Paul, dated January 9 and 10, 1885, and a copy of my letter to the Mayor of Saint Paul, dated February 14, 1885, and the inclosed letter of the Mayor, dated March, 1885, it would appear that the city does not intend to begin the construction of said bridge until the plans therefor have been approved by the Honorable Secretary of War, as required by section 4 of said act. So far, therefore, as this bridge is concerned, I can see no necessity for any action whatever, as yet. (2) In regard to the railroad bridge.-I inclose a letter from A. B. Stickney, esq., president of the railroad, concerning the whole ground. It appears therefrom that this bridge is being built under authority contained in its charter, which was enacted by the late Territory of Minnesota, March 4, 1854, and is entitled "An act to incorporate the Minnesota and Northwestern Railroad Companies," and several acts amendatory thereof. It further appears that the bridge is not being built under any authority conferred by the city of Saint Paul, pursuant to the act of July 5, 1884 (chapter 215) nor under any other act of Congress. It would therefore follow that chapter 281, approved June 4, 1872 (17 Gen. Stat., 215), is misapplicable to this bridge. It therefore follows, as I understand the case of Escanaba and Lake Michigan Transportation Company vs. Chicago, 107 U. S., 678, that in the absence of any such act of Congress the legislature of Minnesota has full power to authorize the construction of this bridge, and that the public authori ties of the United States have no power to interfere with it upon their own motion, even should it unnecessarily obstruct the navigation of the river. But after examining the bridge, I am of the opinion that it does not unnecessarily obstruct the navigation of the river. There is a waterway of 150 feet on each side of the pivotal pier. The water-way of the bridge at Hastings is but 130 feet. As Hastings is 20 miles below this bridge, it follows that every boat that passes through this bridge must first pass through a water-way 20 feet narrower than that here afforded. I may add that most of the boats land at levees below this bridge, and that the commerce above it is comparatively trifling. I would therefore state that in my opinion there is no necessity for any proceedings at law or in equity relative to the two bridges referred to in yours of the 10th instant. Respectfully, Hon. ATTORNEY-GENERAL. D. B. SEARLE, United States Attorney. LETTER OF THE SECRETARY OF WAR TO THE ATTORNEY-GENERAL OF THE UNITED STATES. WAR DEPARTMENT, Washington City, April 15, 1885. SIR: I have the honor to acknowledge the receipt of your letter of the 3d instant, with inclosures relative to the proposed construction bridges over the Mississippi River, at Saint Paul, Minnesota, and in reply to state, so far as the bridge contemplated to be built by the city au thorities at that point is concerned that, through correspondence and conference had by this Department with the Mayor of that city, it is believed that a result satisfactory to all concerned will doubtless be reached at an early period. This bridge is to be constructed under the provisions of an act of Congress approved July 5, 1884. It appears from the communication of the United States District Attorney at Saint Paul, however, that the railroad bridge across the Mississippi now t process of construction at nearly the same point as that selected for the city bridge, and underneath it, has never been authorized by Congress but that the corporation engaged in the work claim to have been fully empowered in that behalf by an act of the Territorial legislature of Minnesota, passed in 1854, and acts amendatory thereof. The District Attorney expresses himself as satisfied that the authority claimed is ample, and that no proceedings at law or in equity are necessary in the premises. In his conclusions I am unable to concur, and beg to cali your attention to the delay which occurred on the part of that officer to report upon the matter submitted to his care. The letter of the Pres dent of the railroad company to him, the claims in which he concedes and makes the basis of his own judgment, bears date February 19,! 1885, while his own letter does not appear to have been written until March 30,? succeeding. In the mean time, as this office is informed by a reputable citizen of Saint Paul, such rapid progress has been made in the work that the piers of the bridge are about ready for the superstructure to be placed upon them. It is remarked that while in the act authorizing the city of Saint Paul to construct bridges Congress appears to have exercised great care in providing proper restrictions as to the height and width of spans, the railroad bridge is being built near the water and regardless of the right of supervision which has been repeatedly declared by Congress to be inherent in the General Government. It is also remarked that although the act of July 5, required that the main span of bridges over the channel of the stream should be 250 feet, the plan submitted for my approval contemplated a span of 300 feet, and this office is advised that a pier of the railroad bridge placed in the channel is 40 feet in width. The papers relating to this matter are herewith returned, and the question is submitted for your determination as to what action shall be taken to enforce the rights of the Government and give effect to the duty resting upon it to protect the navigation of the Mississippi River. Very respectfully, your obedient servant, WM. C. ENDICOTT, The Honorable the ATTORNEY-GENERAL. LETTER OF THE ATTORNEY-GENERAL OF THE UNITED STATES TO THE SECRETARY OF WAR. DEPARTMENT OF JUSTICE, SIR: Your communication of April 15, 1985, with accompanying papers relative to the matter of the railroad bridge across the Mississippi River at Saint Paul, Minnesota, has been received, and I beg leave to reply as follows: It seems a railroad bridge is being constructed by the Minnesota and Northwestern Railroad Company across the Mississippi River at Saint Paul, with a pivot-draw over the main channel, under the authority of an act of the Territory of Minnesota, entitled "An act to incorporate the Minnesota and Northwestern Railroad Company," and acts amendatory thereof, and also under the alleged authority of the general laws of the State of Minnesota. By the act of Congress of July 5, 1884, chap. 215, power is given to the Common Council of Saint Paul to erect or to authorize the erection of "one or more foot and carriage or railroad bridge or bridges across the Mississippi River, extending from such point or points to be selected as lie between the easterly and westerly boundaries of said city to a point or points on the opposite side of said river, now known as the sixth ward of said city," &c. The act further provides that any bridge or bridges built thereunder may, by direction of said Common Council, be built as a draw-bridge, with a pivot or other form of draw; and, if built as a draw-bridge, that the draw shall be over the main channel of the river at an accessible and the best navigable point, with spans giving a clear width of water-way of not less than 160 feet on each side of the central or pivot pier of the draw, &c. The bridge in course of construction by said company is located within the limits described in the last-mentioned act, and while the spans of its draw give a narrower water-way than is required by that act (it being but 150 feet on each side of the pivot-pier), this bridge in other respects fails to meet the requirements of the same act. Such is substantially the case presented by the papers, and you submit for my determination the question "as to what action shall be taken to enforce the rights of the Goverment, and give effect to the duty resting upon it to protect the navigation of the Mississippi River." As the Mississippi River above, at, and for some distance below the city of Saint Paul is wholly within the State of Minnesota, the principle enunciated by the Supreme Court of the United States in Wilson rs. the Blackbird Creek Marsh Company (2 Pet., 250), Gilman v. Philadel phia (3 Wall., 713), Pound v. Turck (95 U. S., 459), and Escanaba Company v. Chicago (107 U. S. 678), applies to this case, namely, that until Congress acts, and by appropriate legislation assumes control of the subject, the power of a State over bridges across navigable streams within its limits is plenary; but that when this power is exercised so as to nu necessarily obstruct navigation, Congress may interfere and remove the obstruction. The power of Congress to regulate bridges over navigable waters is paramount, and where it comes in conflict with that of the State the latter necessarily becomes ineffective. Yet in the case last above cited the court observes that, "to render the action of the State invalid in constructing or authorizing the construction of bridges over one of its navigable streams, the General Government must directly in terfere so as to supersede its authority and annul what it has been done in the matter;" and this doctrine is announced and recognized in Bridge Company v. United States (105 U. S., 470), and Miller v. The Mayor, &c. (109 U. S., 385), and especially by a decision rendered at the present term of the Supreme Court of the United States in Gloucester Ferry Company v. The Commonwealth. Assuming, then, that the construction of the railroad bridge referred to is authorized by the laws of the State of Minnesota, this would seem to be sufficient for the purpose, unless the authority imparted by those laws is in conflict with, or has been superseded or invalidated by, Congressional legislation. If such authority is unaffected by any existing law of Congress, the railroad company above named may undoubtedly act thereunder, and in so doing it will only subject itself to the risk of future Congressional interference. Congress has passed no general law regulating the erection of bridges across the Mississippi. Numerous acts have been passed by it, author izing the erection of such bridges at particular localities, the provisions whereof are similar to those contained in the aforesaid act of July 5, 1884. That act does not expressly prohibit the building of any bridge at the locality therein described other than such as is authorized thereby, and whether it does so by implication is a question of construction. It de clares that "any bridge or bridges constructed under this act and ac cording to its provisions and conditions shall be a lawful structure or structures." If this affirmative declaration may be construed to include the negative one, viz, that "any bridge not constructed under this act, &c., shall be an unlawful structure," which is at least doubtful, it would in effect annul any authority derived under the State to erect a bridge of any sort in that locality. But suppose the act has that effect, and the bridge now being erected by the railroad company is not a lawful structure, what action, if any, are the officers of the General Government authorized to take in the premises? There is no law of Congress under which criminal proceed. ings can be instituted by them; and without authority of Congress it is questionable whether of their own motion, and simply in vindication of the general public right of navigation, they can institute any civil proceeding on behalf of the United States, such as an information to enjoin the erection of the bridge, or to abate it, as a nuisance (see 15 Opin., 526). Where, however, the interests of the United States are di rectly concerned, as, for example, if the structure should threaten injury to or interfere with any work of the General Government for the improvement of the river, a civil proceeding to protect such work may be instituted in its behalf in the proper Circuit Court (U. S. v. Duluth, 1 Dill., 469). But as regards the right of navigation, the public law of the United States appears to leave the vindication of this right wholly to those who sustain injury thereto from unlawful obstructions or otherwise through the institution by them of appropriate civil proceedings for relief. I am accordingly inclined to the conclusion that, in the existing state of the law, the facts of the present case (as they appear in the accom panying papers) afford no ground for a judicial proceeding on behalf of the United States against the railroad company; and that, until Congress makes some adequate provision upon the subject, the officers of the United States can in this case take no action " to enforce the rights of the Government and give effect to the duty resting upon it to protect the navigation of the Mississippi River." Very respectfully, Hon. Wм. C. ENDICOTT, A. H. GARLAND, Secretary of War. REPORT OF MAJOR JARED A. SMITH, CORPS OF ENGINEERS. UNITED STATES ENGINEER OFFICE, Portland, Me., December 30, 1886. GENERAL: In compliance with instructions in General Orders No. 7, from Headquarters Corps of Engineers, dated November 30, 1886, I have the honor to submit the following report: Regarding the railroad and highway bridge between Portsmouth, N. H., and Kittery, Me., my annual report for Cocheco River, New Hampshire, for fiscal year ending June 30, 1886, contained the following paragraph: The bridge across the Piscataqua River, near Portsmouth Harbor, has its draw very narrow and badly arranged, so that it is generally a very inconvenient, slow, and tedious process to pass vessels through. In passing through the draw with the tide it is in general necessary to moor the vessel and allow it to drop through the narrow space stern foremost, requiring great pains to accomplish it without injury. My report of a preliminary examination on the Kennebec River, Maine, submitted on the 27th instant, contained the following paragraphs: The draw of the bridge from Gardiner to Pittston is difficult and somewhat dangerous to pass, owing to the lack of suitable piers as guides to the current and guards for the passing vessel. I give this upon the statement of pilots and others, without personal knowledge obtained from observation. The bridge seems to have had an effect in forming a shoal in front of the wharves immediately above, and the shoal has extended downward until it has injured the channel through the draw. Opposite the railroad wharf the shallow water causes great inconvenience and expense in getting vessels to and from the landing. Referring to the injuries caused by a freshet in 1870, the same report says: The same freshet carried away the toll-bridge at Hallowell, leaving the piers in the river. The remains of the bridge piers are now submerged at high water and form a dangerous obstacle, on which many vessels have been injured. |