United States v. Baltimore Ohio Railroad Company

• Decision Date: 10 June 1913
• Docket Number: No. 118,118
• Citation: 229 U.S. 244,57 L.Ed. 1169,33 S.Ct. 850
• Parties: UNITED STATES, Plff. in Err., v. BALTIMORE & OHIO RAILROAD COMPANY
• Court: U.S. Supreme Court

229 U.S. 244

33 S.Ct. 850

57 L.Ed. 1169

UNITED STATES, Plff. in Err.,

v BALTIMORE & OHIO RAILROAD COMPANY.

No. 118.

Argued October 19 and 20, 1911.

Decided June 10, 1913.

Assistant Attorney General Harr for plaintiff in error.

Messrs. B. M. Ambler, W. W. Van Winkle, and Mason G. Ambler for defendant in error.

Mr. Chief Justice White delivered the opinion of the court:

This writ of error seeks the reversal of a judgment discharging the defendant in error here from further prosecution under an indictment which alleged a violation of the act of March 3, 1899 [30 Stat. at L. 1121, chap. 425], in refusing to alter, as directed by the Secretary of War, a bridge across the Ohio river, connecting Parkersburg, West Virginia, and Belpre, Ohio. The case was tried to a jury, and at the close of the evidence, by direction of the court, a verdict of not guilty was returned, whereupon the judgment was entered which is under review.

The facts established by the evidence, so far as material to be stated, may thus be summarized.

The bridge in question was completed in the year 1871, in full compliance with an act of Congress approved July 14, 1862 (12 Stat. at L. chap. 167, p. 569), which prescribed the height, width of span, and other requirements for bridges erected above the Kentucky line (mouth of Big Sandy river), and in § 5 it was provided that 'any bridge or bridges erected under the provisions of this act shall be lawful structures, and shall be recognized and known as post routes . . . and the officers and crews of all vessels, boats, or rafts navigating the said Ohio river are required to regulate the use of the said vessels and of any pipes or chimneys belonging thereto, so as not to interfere with the elevation, construction, or use of any of the bridges erected or legalized under the provisions of this act.' The act contained no express reservation of right to alter or amend it in any respect.

On October 29, 1904, the United States attorney for the northern district of West Virginia, by direction of the attorney general, filed in the circuit court of the United States for the northern district of West Virginia a bill of complaint on behalf of the United States against the Parkersburg Branch Railroad Company, a West Virginia corporation, John W. Davis, its receiver, and the Baltimore & Ohio Railroad Company. The bill in effect charged that the bridge in question was owned, operated, and controlled by the defendants, that the bridge had been constructed under the act of 1862, and averments were made as to the provisions of various statutes subsequently passed by Congress concerning the construction of bridges across the Ohio river, viz., § 7 of the act of December 17, 1872 (17 Stat. at L. 398, chap. 4), and §§ 2 and 4 of the act of February 14, 1883 (22 Stat. at L. 414, chap. 44), and the provisions of other statutes conferring additional powers upon the Secretary of War in regard to the control and regulation of the navigable waters of the United States, viz., §§ 4 and 7 of the act of September 19, 1890 (26 Stat. at L. 426, chap. 907), and § 9 of the act of March 3, 1899 (30 Stat. at L. 1121, chap. 425). In substance it was charged that the spans of the bridge in question the present main span being 349 feet in width and the adjacent span of the same width—were wholly inadequate to accommodate the present commerce of the Ohio river at the point where built, and constituted a serious and dangerous obstruction to the navigation of the Ohio river at such point, and it was averred that the Secretary of War, under the supervisory power conferred upon him by the statutes referred to, 'in recent years has required that all bridges over the Ohio river shall have channel spans ranging from 600 to 800 feet in length.' It was further averred that the railroad company, under the pretense of renewing the old bridge, was erecting a new structure on the site of the old, despite the fact that the government, 'through its proper officers,' had refused to grant authority so to do, except 'on condition of removing the pier between spans 38 and 39 of the said bridge, and uniting spans 38 and 39 in one span, thus making the channel span to the said bridge approximately 698 feet. It was also alleged 'that the construction of this proposed new bridge, without the consent or approval of the United States, to which is intrusted by the Constitution the protection of this great water way of commerce among the several states, will be in violation of law, and to the great and irreparable injury of the United States and the commercial interests intrusted to its care.' The prayer of the bill was as follows:

'Your orator avers that there is no adequate remedy at law in the premises, and therefore prays that a temporary restraining order enjoining the defendants, their agents, servants, employees, workmen, contractors, and others whomsoever, from constructing or proceeding to construct the contemplated bridge or any bridge across the Ohio river from Parkersburg to Belpre, with a channel span of not less than 698 feet, and without the consent of Congress and the approval of the Secretary of War and the Chief of Engineers, until the final hearing of this cause, when your orator prays that such temporary injunction may be made perpetual; and that the existing bridge operated by the said railroad company between Parkersburg, West Virginia, and Belpre, Ohio, be declared and decreed to be an unreasonable obstruction to the navigation of the Ohio river, and that the said railroad company be required within a reasonable time to remove the same, or replace same with such a bridge as shall conform to existing law. And your oratorprays for such other relief as may be proper in the premises.

The defendants, in their answer, recited the history of the bridge and alleged it to be a lawful structure, and averred that under the authority vested by the act of 1862, they possessed the right to maintain the bridge not only during the life of the first superstructure thereof, but by the renewal of the superstructure from time to time as might be required for the maintenance of the bridge as a post ronte, etc. It was expressly averred that the defendants were proceeding merely to renew the superstructure of the bridge by providing a steel superstructure of much greater weight and strength than that now in use, and that it was not contemplated or intended to make any change whatever in the piers of the bridge, any lowering of the height of the channel spans, or any other change which in any respect or in any degree will or can possibly affect the navigation of the Ohio, river at the point where the bridge stands.

The motion for a permanent injunction as prayed in the bill was heard upon bill, answer, and affidavits, and was decided on February 4, 1905, in an opinion by District Judge Jackson. The injunction was refused. 134 Fed. 969. It was held that the construction of the bridge under the authority conferred by the act of 1862 created a vested right to the use of the bridge of which the defendants could not be deprived without just compensation. It was also held that the defendants were not building or attempting to build a new bridge, but were simply replacing the old superstructure, and that 'the right to repair the bridge, to alter it or to improve it, for the safety of the public, is incident to the power to build it.' The court thus concluded the opinion:

'It must appear, from what we have said, that an injunction furnishes no remedy for the grievances complained of in the bill. This is the third application that has been made for an injunction before the judges of this court against the Baltimore & Ohio Railroad Company, involving the act of 1862. Judge Goff heard the case of the United States against the Baltimore & Ohio Railroad Company, which was an application for an injunction to prevent reconstruction of the Benwood Bridge. He dismissed the bill on March 27, 1900. Judge Goff and I heard the case of the Baltimore & Ohio Railroad Company against Leidecker, one of the United States engineers, in...