United States v. City of Moline

• Decision Date: 03 July 1897
• Citation: 82 F. 592
• Parties: UNITED STATES v. CITY OF MOLINE. [1]
• Court: U.S. District Court — Northern District of Illinois

82 F. 592

UNITED STATES v. CITY OF MOLINE. ^[1]

United States District Court, N.D. Illinois.

July 3, 1897

John C Black, U.S. Dist. Atty.

W. W Odell and W. R. Moore, for defendant.

GROSSCUP District Judge.

The information, read in connection with the plans for the building of the Illinois & Mississippi Canal, shows that it is the purpose of the United States to construct a canal from the Illinois river, at or near the town of Hennepin, to the Mississippi river, at or above the mouth of Rock river together with the necessary feeders thereto; that at Milan about five or six miles below what is known as the 'Moline Bridge,' to a point about five or six miles above this bridge, the proposed canal is to follow the bed of and use Rock river as a part thereof; that Rock river is situated in the state of Illinois, within this district, and is a navigable water way of the United States; that the bridge known as the 'Moline Bridge,' and owned and controlled by the city of Moline, is now, and will be when said canal is finished, an unreasonable obstruction to the navigation of said water way; that the secretary of war, in pursuance of statute, has notified the city of Moline so to alter the bridge by putting in draws, etc., as will make said river at said point practically navigable; that the period for making such changes has passed, and the city of Moline still neglects and refuses to conform to the requirements of such notice and order of the secretary of war, and continues to maintain such obstruction, whereby its acts in the premises are a misdemeanor, under section 5 of the act of September 19, 1890.

The motion to quash necessarily admits the truth of the averments of the information. The city, by its counsel, in effect contends: First, that the river in question is wholly within the state of Illinois, and has never been declared, by the government of the United States, to be a navigable stream; second, that the bridge in question was lawfully authorized by the legislature of Illinois, is the lawful property of the city of Moline, and cannot be taken or injured by the government of the United States without just compensation; third, that the proceedings of the secretary of war giving rise to this information are in pursuance of a statute unconstitutional, and therefore void. Many statutes of the state of Illinois providing for and authorizing dams and bridges across Rock river are exhibited by counsel in support of this contention, and have been judicially taken notice of in the disposition of this motion.

The constitution confers upon congress the exclusive right to regulate interstate commerce. A water way like Rock river, emptying into the Mississippi river, though lying wholly within the state of Illinois, is, if navigable, one of the highways of interstate commerce. It leads, with its connections, from points within Illinois to points in other states, and is thus a part of the water way which, as an entirety, interconnects cities in many states, and carries the commerce of many states. Any obstruction to such a water way, in the face of a mandate of congress that the river shall be used as one of its interstate water ways, is open to removal by the proper authority of the United States government. The fact that the state may have authorized the structure is of no avail from the moment that the government of the United States determines to employ the river as such an interstate highway.

Has congress indicated such a purpose? The act of 1888 provides for the location of a canal from the Illinois river, at or near the town of Hennepin, to the Mississippi river, at or near the mouth of Rock river, to be 80 feet wide at the water line, and to have a depth of not less than 7 feet of water, with locks, feeders, etc., and that the secretary of war shall cause to be made and submitted to congress detailed plans and estimates for such construction. In pursuance of this act the canal was, by the secretary of war, duly located, and detailed plans and estimates for its construction submitted, which plans and estimates included the use of Rock river, averred by the information to be navigable, from a point five or six miles below the bridge in question to a point five or six miles above. Following this action of the war department, the congress of 1889-90 passed an act authorizing the secretary of war to construct the canal upon the plans and specifications submitted, with power to make certain alterations in respect of the locks and feeders, and with the necessary powers of eminent domain. Following this, the congress of 1891-92 made appropriations for the construction of such canal, and the acquirement of right of way; and every congress since has continued such appropriations. These acts clearly indicate a defined purpose upon the part of congress, as far back, at least, as 1889 or 1890, to use Rock river for a distance of several miles above and below the bridge in question as a part of the proposed water way. As a navigable water of the United States, congress had, at any time, the right to enter upon its improvement; and the plans adopted by congress in effect adopt the river, for the distance pointed out, as a part of the proposed water way. The acts of congress, read in connection with the plans and specifications of the war department upon which the acts proceed, look to a navigable water way from the Illinois river to the Mississippi, and utilize towards that end so much of the Rock river-- a stream admittedly navigable-- as seem best adapted to that purpose. The improvement, therefore, is, in effect, an improvement in the navigability of the river. The effect of all these acts is that congress has taken into its jurisdiction, as one of the navigable waters of the United States, that portion of Rock river where this bridge is located, intending thereby to make it a part of the proposed water way from the Illinois river to the Mississippi river. From the moment of such a declaration, the power of congress over the portion of the river designated is supreme. Any obstructions, however authorized by the state law, must yield to this superior authority.

But the right of congress to remove the obstruction does not, of itself, exempt the government of the United States from the duty of making just compensation for such property rights as are taken.

Monongahela Nav. Co. v. U.S., 148 U.S. 312, 13 Sup.Ct.622. The right of congress to interfere with such property rests simply upon its power to regulate commerce. It has no other right touching such property. But, says Justice Brewer, for the supreme court, in Monongahela Nav. Co. v. U.S., supra:

'Like the other powers granted to congress by the constitution, the power to regulate commerce is subject to all the limitations imposed by such instrument, and among them is that of the fifth amendment we have heretofore quoted. Congress has supreme control over the regulation of commerce; but if, in exercising that supreme control, it deems it necessary to take private property, then it must proceed subject to the limitations imposed by this fifth amendment, and can take only on payment of just compensation. The power to regulate commerce is not given in any broader terms than that to establish post offices and post roads; but, if congress wishes to take private property upon which to build a post office, it must either agree upon the price with the owner, or in condemnation pay just compensation therefor.'

The inquiry, then, is: Has the city of Moline a property right in this bridge inconsistent with the control to be taken by congress, and the changes made in consequence thereof? If so compensation must be first made. The ownership...