United States v. Louisville Bridge Co.

• Decision Date: 20 May 1916
• Parties: UNITED STATES v. LOUISVILLE BRIDGE CO.
• Court: U.S. District Court — Western District of Kentucky

233 F. 270

UNITED STATES v. LOUISVILLE BRIDGE CO.

United States District Court, W.D. Kentucky.

May 20, 1916

Perry B. Miller, U.S. Dist. Atty., of Louisville, Ky.

Chas H. Gibson and William W. Crawford, both of Louisville, Ky for defendant.

EVANS District Judge.

By an act approved February 17, 1865 (13 Stat. 431, c. 38) authority was given the Louisville & Nashville Railroad Company and the Jeffersonville Railroad Company (stockholders in the Louisville Bridge Company) to construct a railroad bridge of a specified character over the Ohio river at the head of the Falls of the Ohio. The authority thus given was made subject to the provisions of a previous act approved July 14, 1862 (12 Stats. 569, c. 167).

Under its charter and the authority given by Congress the defendant constructed its bridge. After its completion in 1870 it was inspected by the Board of Engineers of the United States Army. When certifying the result to the government and to the defendant, among other things the Board said:

'The board have no changes to recommend in this bridge, which they consider a first-class structure throughout, and very much less an obstruction than it might have been, had its builders limited themselves to giving only what they were compelled by law to give. On the contrary, they have chosen to build according to the highest of the three authorized plans, and have exceeded the heights and widths that even this plan required, spending $150,000 more than was necessary to comply with the letter of the law. Instead of a 300-foot opening at low water, one of their channel spans gives 380 feet, and the other 352 1/4 feet.'

During the 45 years which have followed, the bridge, thus constructed, has been continuously used as a railroad bridge.

By the eighteenth section of the act approved March 3, 1899 (30 Stats. 1153, c. 425), making appropriations for the construction, repair, and preservation of certain public works on rivers and for other purposes, the Secretary of War was authorized, and it was made his duty, when he had good reason to believe that any railroad or other bridge then constructed or which might thereafter be constructed over any of the navigable waterways of the United States was an unreasonable obstruction to the free navigation of such waters, or was of insufficient height, or width of span, or otherwise, or where there was difficulty in passing the draw by rafts, steamboats, or other water craft, after giving the bridge owner reasonable opportunity to be heard, to give notice to such owner, specifying the changes required and the time within which they were reasonably to be completed. Penalties were prescribed for failure to make the changes required, etc.

It is conceded that all the preliminary steps required by the section were properly taken by the Secretary of War. Afterwards that officer in due course served upon the defendants a notice as follows:

'Form No. 6.

'War Department.

'Washington, D.C., December 12th, 1914.

'To Charles H. Gibson, President Louisville Bridge Company, 906 Realty Building, Louisville, Kentucky:

'Take notice that-- Whereas, the Secretary of War has good reason to believe that the bridge of the Louisville Bridge Company across the Ohio river at Louisville, Kentucky (commonly known as the 'Ohio Falls' bridge), is an unreasonable obstruction to the free navigation of the said Ohio river (which is one of the navigable waterways of the United States) on account of (1) insufficient horizontal clearance of the channel span crossing the main navigable channel known as 'Indiana Chute,' and (2) insufficient width of opening in the existing swing span crossing the Louisville and Portland Canal.

'And whereas, the following alterations, which have been recommended by the Chief of Engineers, are required to render navigation through or under it reasonably free, easy, and unobstructed, to wit:

'(1) That the span of said bridge crossing 'Indiana Chute' be so changed as to provide a horizontal opening 600 feet wide in the clear.

'(2) That the existing swing span of said bridge across the Louisville and Portland Canal, be changed to a lift span giving a horizontal clearance of 200 feet, and a vertical clearance, when open, of 78 feet above pool level of 412 feet, U.S. datum.

'And whereas, three years from the date of service of this notice, is a reasonable time in which to alter the said bridge as described above:

'Now, therefore, in obedience to, and by virtue of, section eighteen of an act of the Congress of the United States entitled 'An act making appropriations for the construction, repair, and preservation of certain public works on rivers and harbors, and for other purposes,' approved March 3, 1899, the Secretary of War does hereby notify the said Louisville Bridge Company to alter the said bridge as described above, and prescribes that said alterations shall

be made and completed on or before three years from the date of service hereof.

(Signed) Lindley M. Garrison, Secretary of War.'

The response of the Bridge Company to this notice was as follows:

'Louisville Bridge Company.

'President's Office.

'Louisville, Nov. 26, 1915.

'To the Secretary of War, Washington, D.C.:

'In re Reconstruction of Superstructure of Louisville Bridge.

'Referring to the correspondence and conference heretofore had concerning the above matter, I beg to advise you that I am instructed to say:

'First. The Louisville Bridge Company claims and insists on the right to renew its superstructure on the existing masonry, without making any changes in the length of any of the existing spans, so that, when completed, it will not interfere with navigation any more than it does now.

Second. The company intends to at once commence and continue the work of renewing its superstructure as above stated, it being its purpose to first reconstruct the five northern spans of the bridge, including the span over the Indiana channel.

'If you desire it, detailed plans showing the proposed reconstruction will be furnished you.

'Very respectfully,

(Signed) Chas. H. Gibson, President.'

In this situation the United States filed its bill of complaint against the defendant, in which, having stated in substance that the defendant had failed and refused, and intended to continue to fail and refuse, to comply with the notice given by the Secretary of War, prayed the court to enjoin the defendant from erecting, or causing to be erected, or from taking any steps whatsoever towards the erection, or the causing of the erection, of a bridge contrary to the requirements set forth in the notice of the Secretary of War aforesaid, or from reconstructing the superstructure of its present bridge upon its present piers in such a manner as to leave a span contrary to the provisions of said order and notice of the Secretary of War, or from taking any steps whatsoever to that end, or from doing any of the matters or things which it threatens to do in its letter of November 26, 1915.

The defendant answered the bill, and the parties filed a stipulation agreeing that the material facts were as therein set forth; but we are stating only such of them as may be essential for present purposes. One clause in their agreement was in this language, namely:

'It is expressly agreed and here stipulated between complainant and respondent that the sole question to be determined in this case is the legality of the order of the Secretary of War as applied to the bridge of the respondent.'

The case thus presented is of very great importance, alike to the defendant and to the public, and the general question upon which it is agreed the decision must turn, and various illustrative propositions supposed more or less to bear upon it, have been discussed with great earnestness and ability. While, in view of the certainty of an appeal, it is not necessary that we should go into much detail, we will, as briefly and clearly as may be, state the grounds upon which we rest our conclusion.

Section 18 of the act of 1899 has often been under consideration by the Supreme Court. Its constitutionality has been called in question, but the court distinctly held it to be constitutional in Union Bridge Co. v. United States, 204 U.S. 364, 388, 27 Sup.Ct. 367, 51 L.Ed. 523, Monongahela Bridge Co. v. United States, 216 U.S. 177, 30 Sup.Ct. 356, 54 L.Ed. 435, and Hannibal Bridge Co. v. United States, 221 U.S. 194, 31 Sup.Ct. 603, 55 L.Ed. 699.

While this general proposition must be regarded as settled nevertheless attempted applications of the provisions of the section possibly might be subject to constitutional restriction. To illustrate: There is no clause in the act of 1862, or in that of 1865, either authorizing or forbidding renewals of the superstructure. There is no clause in either act reserving the power to amend its provisions, and there is nothing in section 18 of the act of 1899 which gives or contemplates the giving of compensation to the owner of a bridge in case the Secretary of War shall act under its provisions. In view of this condition of applicable legislation, the defendant insists that the Secretary's order, though within the letter of the statute, would, if enforced, be an unconstitutional violation of its rights, first, because, in the absence of the reservation of the right to amend the previous acts, Congress could not make section 18 of the act of 1899 applicable to this bridge; and, second, because to put the Secretary's order into effect would take the defendant's property to the extent of at least $450,000 for public use without compensation, in violation of the fifth amendment to the Constitution of the United States. The last of these propositions must be regarded as having been...