LONG
J.
This is
a petition for mandamus to compel the common council
of the city of Detroit to rescind and set aside its action
appointing certain persons, who are also made parties hereto
as superintendent, assistant superintendents, engineers,
assistant engineers, gate-tenders, and sweepers of Belle Isle
bridge and its approaches, and to turn over the possession
and control of said bridge to the relators, and also
commanding such superintendent, assistant superintendents,
engineers, assistant engineers, gate-tenders, and sweepers to
surrender their positions so held by them, under the action
of the common council. Upon filing the petition in this
court, an order to show cause was issued, and the parties
have all appeared and answered. Substantially the facts set
out in the petition are admitted; the controversy between the
parties being purely questions of law arising out of the
construction of the statute of the United States authorizing
the construction of the bridge over the navigable waters of
the Detroit river, and the statutes of this state authorizing
the common council of the city of Detroit to borrow money for
its construction, and appointing the commissioners of parks
and boulevards. The act of congress was
approved July 20, 1886, and is entitled "An act to
provide for the construction of a bridge across the west
channel of the Detroit river to connect Belle Isle park with
the main-land." 24 U.S. St. at Large, 147.
"Section
1. Be it enacted by the senate and house of representatives
of the United States of America in congress assembled, that
the assent of congress is hereby given to the municipality
known as the 'City of Detroit,' a body corporate
existing by and under the laws of the state of Michigan, to
erect a bridge across the Detroit river between any point on
the north-western bank of said river within the limits of
said corporation aforesaid, and the island in the Detroit
river heretofore known as 'Belle Isle,' and now known
and designated as 'Belle Isle Park,' the said bridge
to be devoted to such general use as may be prescribed by the
municipal authorities of the city of Detroit.
"Sec.
2. That the bridge authorized to be erected by this act shall
be so located and constructed that the channel of said
Detroit river shall not be unreasonably obstructed, but that
a draw or pivot span of not less than one hundred and
twenty-five feet clear opening on each side of the pivot-pier
shall be located over the above specified channel, in such a
manner that one or both of the openings of said draw or pivot
span can be conveniently and safely reached and passed by
boats pursuing the ordinary channel of the river; that one
opening, at least, of a draw or pivot span shall be over the
best and most convenient channel of the river for such
classes of river traffic as shall find it convenient to use
said channel.
"Sec.
3. That the height at which said bridge shall be constructed
above the surface of the river shall be such as may be
approved by the secretary of war.
"Sec.
4. That all draw or pivot spans authorized by this act shall
be operated by steam or other reliable mechanical power, and
shall be opened promptly upon such signals as are now
prescribed by law for the passage of boats through draws or
bridges, and such other and further regulations as may be
prescribed in the premises.
"Sec.
5. That piers upon which said bridge is built shall be
parallel with the current of the river, and so as to avoid
producing cross-currents or bars dangerous to navigation; and
if, after construction, any piers are found to produce the
above-mentioned effects, the nuisance shall be abated or
corrected by, or at the expense of, the corporation owning or
operating said bridge, and when advised by the secretary of
war.
"Sec.
6. That it shall be the duty of the municipal corporation
authorized to erect a bridge under this act to maintain, at
its own expense, from sunset to sunrise of
each day throughout the season of navigation, and during
heavy fogs, such lights on the bridge as may be required by
the light-house board, for the security of navigation.
"Sec.
7. That any bridge constructed under this act, and according
to its limitations, shall be a lawful structure, and shall be
recognized and known as a post-route, over which the mails,
troops, and munitions of war of the United States may be
transported at no higher charge than is made for
transportation of said mails, troops, and munitions of war
over railroads and public highways leading to said bridge;
and the United States shall have the right of way for postal
telegraph lines and appliances across said bridge.
"Sec.
8. That before commencing work on the bridge contemplated in
this act it shall be the duty of the municipal authorities of
the city of Detroit to submit to the secretary of war, for
his examination, a design and drawing of the bridge and
piers, and a map of the location, giving, for the space of
one-half mile above and one-half mile below the proposed
location, the topography of the banks of the river, the shore
lines at high and low water, the direction of the current,
and soundings showing accurately the bed of the stream, and
such other and further information as the secretary of war
may require for a full and satisfactory understanding of the
subject.
"Sec.
9. That, when the secretary of war is satisfied that the
provisions of this act have been complied with in the matter
of location and the submission of plans, the building of the
piers may at once commence; but, if it shall appear that the
conditions prescribed by this act cannot be complied with at
the location where it is desired to construct the bridge, the
secretary of war shall, after considering all remonstrances
filed against the building of said bridge, and furnishing
copies of remonstrances to the board of engineers provided
for in this act, detail a board of experienced engineers from
the engineer corps of the United States army to examine the
case, and may, on their recommendation, authorize and direct
such modifications as appear necessary.
"Sec.
10. That the secretary of war may, in his discretion, appoint
one or more
army engineers to supervise and personally examine the
construction of said bridge; and that the proposed bridge
shall only be a lawful structure when built as approved by
the secretary of war, who shall have authority, by and with
the advice of the engineers detailed by him, to order such
change in construction or appliances as he may deem necessary
for the safety of said bridge and the convenience of
navigation.
"Sec.
11. That in case of any litigation from any obstruction, or
alleged obstruction, to navigation, created by the
construction of any bridge under this act, the cause or
question arising may be heard by the district
court of the United States of any state in which any portion
of said obstruction or bridge touches.
"Sec.
12. That the municipal laws and ordinances of the city of
Detroit may be enforced on said bridge, and the care,
control, and the use of the same shall be governed by
ordinances of the city enacted, as though said bridge was a
public street in said city.
"Sec.
13. That the right to alter, amend, or repeal this act, and
to require the removal of material obstructions to
navigation, by the construction of any bridge under its
provisions, is hereby expressly reserved, without any
liability of the government for damages on account of such
alterations, amendment, or repeal, or on account of the
prevention, or the requiring of the removal of any such
obstruction; and if any change be made in the plan of any
bridge constructed under this act, during the progress of the
work thereon, or before the completion of said bridge, such
change, shall be subject to the approval of the secretary of
war; and any change in the construction or, any alteration of
any such bridge, and the removal of any such obstruction,
that may be directed at any time by congress or the secretary
of war, shall be made at the cost and expense of the owners
of the said bridge." Approved July 20, 1886
It
appears that on May 21, 1889, George H. Russell, William
Livingstone, Jr., John Erhard, and William K. Parcher were
appointed by the common council, on the nomination of the
mayor, commissioners of parks and boulevards, in accordance
with an act entitled "An act supplemental to the charter
of the city of Detroit, and relating to parks, boulevards
and other public grounds in said city, and to repeal act
number three hundred and seventy-four of the Local Acts of
1879, entitled 'An act to provide for the establishment
and maintenance of a broad street or boulevard about the
limits of the city of Detroit, and through portions of the
townships of Hamtramck, Greenfield, and Springwells, in the
county of Wayne,' approved May 21, 1879." The
commissioners duly qualified under the act, and entered upon
the discharge of their duties. On August 12, 1889, the common
council, assuming authority over the commission in the
custody and control of the bridge connecting Belle Isle Park
with the main-land of the city, (which bridge had then been
constructed, as will be noted hereafter,)
without the assent or concurrence of the commission, and
against their protest, formally appointed for the bridge one
superintendent, one assistant superintendent, one engineer,
four assistant engineers, four gate-keepers, and two
sweepers, fixing, in detail, their salaries, which aggregate
$11,300. These...
