These are no doubt weighty considera- | the Constitution from passing laws that tions, and raise a grave question, but they impair the obligation of contracts, and in do not necessarily dispose of it. Clearly, its enactments the presence or absence of the acts were passed under the power of such a reservation has not the same peculiar Congress to regulate commerce. That power significance that it has in state legisla is a very great power, and in its nature tion. It is no doubt a circumstance, but continuing, not being exhausted by any not by any means conclusive. particular exercise. We need not go so far At the time the Acts of 1862 and 1865 as to say that Congress could not in any were passed, it was not customary for Concase, by contract or estoppel, prevent itself gress to include in legislation of this charfrom modifying or revoking a regulation acter an express reservation of a power of once made and substituting another in its future control or repeal. In an Act of place without compensation. But when August 31, 1852 (chap. 111, 10 Stat. at L. private rights of an indefeasible nature are 112, §§ 6 and 7), certain bridges already sought to be derived from regulatory pro- in existence across the Ohio river were devisions established in the exercise of this clared to be lawful structures. The next power, the case is peculiarly one for the acts of a similar character appear to have application of the universal rule that been those now under consideration. Congrants of special franchises and privileges temporaneously with the second of these, are to be strictly construed in favor of an act was passed (chap. 39, 13 Stat. at the public right, and nothing is to be taken L. 431) declaring a bridge then under conas granted concerning which any reasonable struction across the Ohio between Cincindoubt may be raised. As this court, speak-nati and Covington to be a lawful strucing through Mr. Chief Justice Waite, de- ture. In neither of these was there any clared in Newport & C. Bridge Co. v. express reservation of future control. United States, 105 U. S. 470, 480, 26 L. succeeding years 1 numerous bridge acts ed. 1143, 1147: "Congress, which alone were passed containing in one form or anexercises the legislative power of the gov- other a reservation of the power to alter ernment, is the constitutional protector of or amend the act or to withdraw the assent foreign and interstate commerce. Its super-given. vision of this subject is continuing in its nature, and all grants of special privileges, affecting so important a branch of governmental power, ought certainly to be strictly construed. Nothing will be presumed to have been surrendered unless it was manifestly so intended. Every doubt should be resolved in favor of the government."

In

But

These provisions may well have been inserted from abundant caution, and because provisions of like character had become familiar in state legislation. obviously, they throw no direct light upon the intent of Congress in preceding legislation.

While scrutinizing the acts of 1862 and 1865 in the effort to determine the legisThe absence of an express reservation of lative intent as therein expressed, we should the right to alter or amend is not con- primarily consider the fact that they were clusive. As is well understood, reservations exertions of a power to regulate commerce. of this kind have a peculiar fitness in state Such a regulation, designed as it is to furlegislation, being traceable historically to nish a guiding rule for future conduct, carthe decision of this court in Dartmouth ries with it the suggestion that it may College v. Woodward, 4 Wheat. 518, 4 L. not always remain unchanged. And since ed. 629, that a corporate charter is a con- our interstate and foreign commerce is a tract within the meaning of that clause of thing that grows with the growth of the art. 1, § 10, of the Constitution, which de- people, and its instrumentalities change clares that no state shall pass any law im-with the development and progress of the pairing the obligation of contracts, so that a state law altering such a charter in a material respect without the consent of the corporation is unconstitutional and void; and the suggestion in the concurring opinion of Mr. Justice Story (p. 675) that the reservation of a power to alter or amend the charter would leave the state free to enact subsequent amendatory legislation. Miller v. New York, 15 Wall. 478, 494, 21 L. ed. 98, 103; Greenwood v. Union Freight R. Co. 105 U. S. 13, 20, 26 L. ed. 961, 964; Spring Valley Waterworks v. Schottler, 110 U. S. 347, 352, 28 L. ed. 173, 175, 4 Sup. Ct. Rep. 48. Congress is not prevented by

country, it was not natural that Congress, in enacting a regulation of such commerce, should intend to put shackles upon its own power in respect of future regulation. The act declared that the bridge, when erected,

1 Acts of July 25, 1866 (chap. 246, § 13, 14 Stat. at L. 244); February 27, 1867 (chap. 98, 14 Stat. at L. 412); February 21, 1868 (chap. 10, 15 Stat. at L. 37); July 6, 1868 (chap. 134, 15 Stat. at L. 82); July 20, 1868 (chap. 179, 15 Stat. at L. 121); February 19, 1869 (chap. 37, 15 Stat. at L. 272); March 3, 1869 (chap. 139, 15 Stat. at L. 336); Joint Resolution of March 3, 1869 (15 Stat. at L. 347).

against the grantee, as the familiar rule requires, we are constrained to hold that the Acts of 1862 and 1865 conferred upon appellant no irrepealable franchise to maintain its bridge precisely as it was originally constructed, and created no vested right entitling appellant to compensation under the 5th Amendment in case Congress should thereafter, in the exercise of its power to regulate commerce, require changes to be made in the interest of navigation.

should be "a lawful structure;" but there are no words of perpetuity, nor any express covenant against a change in the law. There is a proviso in the 1865 Act that the bridge and draws shall be so constructed as not to interrupt the navigation of the river,—an evident modification of that clause of the 1862 Act which required vessels to be so regulated as not to interfere with the bridge. It is possible to construe the proviso as referring solely to the time of original construction, and as satisfied if the bridge and draws did not then obstruct This being so, the authority of Congress navigation; but this would disregard the to compel changes was precisely the same fundamental rule that requires strict con- as if the bridge had been constructed under struction of such grants as against the state legislation without license from Conprivate right. In the light of that rule, the gress, as in Union Bridge Co. v. United true meaning rather is that the bridge and States, 204 U. S. 364, 388, 400, 51 L. ed. draws should be so constructed as not at 523, 534, 539, 27 Sup. Ct. Rep. 367; Mononany time to interrupt navigation. (See gahela Bridge Co. v. United States, 216 U. West Chicago Street R. Co. v. Illinois, 201 S. 177, 193, 54 L. ed. 435, 442, 30 Sup. U. S. 506, 515, 521, 50 L. ed. 845, 848, Ct. Rep. 356; or had been constructed un851, 26 Sup. Ct. Rep. 518.) Indeed, the der congressional consent or authorization proviso seems to have been so interpreted coupled with an express reservation of the by the recipients of the grant, for, as ap-right of revocation or amendment, as in pears from the stipulation, the original Newport & C. Bridge Co. v. United States, builders of the bridge did not limit them- 105 U. S. 470, 481, 26 L. ed. 1143, 1147; Hanselves to giving only what they were com- nibal Bridge Co. v. United States, 221 U. pelled by law to give, but, at large ex- S. 194, 207, 55 L. ed. 699, 704, 31 Sup. pense to themselves, exceeded the heights Ct. Rep. 603. We are aware that a dif and widths that the act required. ferent result was reached by the circuit court and circuit court of appeals in United States v. Parkersburg Branch R. Co. 134 Fed. 969, 74 C. C. A. 354, 143 Fed.

previous cases referred to in 134 Fed. 973. But, upon mature consideration, we have concluded that these decisions must be overruled.

It is true that Congress must have contemplated that a large investment of private capital would be necessary, and that the bridge when once constructed 224; and by the circuit court in some could not be abandoned or materially changed without a total or partial loss of value. This is a very grave consideration, and we have not at all overlooked it; but we cannot deem it controlling of the ques- Appellant cites Monongahela Nav. Co. v. tion presented. It may be assumed that United States, 148 U. S. 312, 37 L. ed. 463, the parties foresaw, what experience since 13 Sup. Ct. Rep. 622, but it is plainly dishas demonstrated, that it would be many tinguishable. There the Navigation Comyears before changing conditions of navi-pany under a state charter had constructed gation would render the bridge out of date, and that the investors were satisfied with the prospect of the profit to be gained from the use of the bridge in the meantime.

A circumstance perhaps bearing in the same direction is that appellant is a Kentucky corporation, chartered by an act of the legislature approved March 10, 1856 (Acts 1855-56, vol. 2, p. 426), which contains a proviso, "that said bridge shall be constructed so as not to obstruct navigation, further than the laws of the United States and the decisions of the Supreme Court of the United States shall hold to be legal."

locks and dams in the Monongahela river, to the great improvement of its navigation, and by a supplement to its charter had been required to commence the construction of lock and dam No. 7 in such manner and on such plan as would extend the navigation from its then present terminus to the state line. This work was to complete the company's improvements in the state of Pennsylvania. Thereafter Congress, in 1881, appropriated $25,000 for improving the Monongahela river in West Virginia and Pennsylvania, with the proviso that the money should not be expended until the Navigation Company had undertaken in Reviewing the entire question, bearing good faith the building of lock and dam No. in mind the nature of the subject matter, 7 and had given assurance to the Secretary the circumstances of the period of the of War of its ability and purpose to comenactments, and the language employed by plete the same. The company gave satisCongress, and construing this strictly factory assurance to the Secretary, com

37 S. C.-11.

menced the work in 1882, and completed two classes of bridges to which the term it in 1884. By Act of August 11, 1888 "now constructed" would properly apply (25 Stat. at L. 400, 411, chap. 860), Con- without affecting any vested right, namely gress authorized the Secretary of War to (1) bridges theretofore built under state purchase this lock and dam from the com- authority only, and (2) bridges theretofore pany, and in the event of his inability to built under congressional authority with a make a voluntary purchase within a speci- power of amendment or repeal expressly refied limit of expense, then to take proceed-served; and that full effect can be given to ings for their condemnation, with a proviso the language of § 18 without holding that that, in estimating the sum to be paid by it is a repeal by implication of the declarathe United States, the franchise of the tion of Congress in the Act of 1865 that corporation to collect tolls should not be the Ohio Falls bridge as constructed was a considered or estimated. It appeared that lawful structure and a post route of the the tolls received by the company for United States. But the 1899 Act is not the use of its works, including lock and dam only unqualified in its terms, but from the No. 7, averaged $240,000 per annum, that nature of the subject matter there is every the money value of the entire works and reason for giving it a universal applicafranchise was not less than $4,000,000, tion. As we have seen, appellant had no and that the actual toll receipts of lock and indefeasible right to maintain its bridge dam No. 7 were in excess of $2,800 per as originally constructed, and the absence annum, and would probably increase in the of an express right of repeal from the Acts near future. This court held the proviso of 1862 and 1865 has as little bearing upon excluding the franchise to collect tolls from the question of the practical justice or inconsideration in the condemnation proceed-justice of requiring an alteration in the ings to be inconsistent with the 5th bridge as it has upon the question of conAmendment (p. 336). But it will be ob- stitutional right. And of course, from the served that this was not a case of remov-point of view of the requirements of naviing a structure from the river on the ground that it interfered with navigation, but a taking over of a structure and employing it in the public use as an instrumentality of navigation. In short, there was a clear taking of the property of the company for public use as property, and an attempt at the same time to exclude from consideration an essential element of its value when ascertaining the compensation to be paid. The case has no bearing upon the one at bar.

Reference is made also to our recent decision in United States v. Baltimore & O. R. Co. 229 U. S. 244, 57 L. ed. 1169, 33 Sup. Ct. Rep. 851, and although this court merely affirmed the circuit court on the ground that the matter was res judicata, it is argued that we necessarily decided the questions raised in the present case in order to come to the conclusion that the question was one of res judicata. In view of the very plain language employed in the opinion (pp. 251, 254), the argument is baseless.

There remains only the contention that the Act of 1899, being a general act, does not by fair construction operate to repeal or modify the special rights conferred upon appellant by the Acts of 1862 and 1865. We deem this point likewise untenable. In terms the act applies without qualification to "any railroad or other bridge now constructed or which may hereafter be constructed over any of the navigable waterways of the United States." It is argued that at the time of its passage there were

gation, the particular phraseology of the acts by which the construction of the different bridges was authorized is altogether insignificant.

It may be conceded that the declaration of Congress in the Act of 1865 that the bridge was a lawful structure was conclusive upon the question until Congress passed some inconsistent enactment. As was said by Mr. Justice Nelson, speaking for the court in the Wheeling Bridge Case, 18 How. at p. 430, 15 L. ed. 436, although it may have been an obstruction in fact, it was not such in the contemplation of the law. But § 18 of the 1899 Act wrought a change in the law. (There were similar provisions in an Act of August 11, 1888, chap. 860, § 9, 25 Stat. at L. 400, 424; and in an Act of September 19, 1890, chap. 907, § 4, 26 Stat. at L. 426, 453; but we pass them by.) Congress thereby declared that whenever the Secretary of War should find any bridge theretofore or thereafter constructed over any of the navigable waterways of the United States to be an unreasonable obstruction to the free navigation of such waters on account of insuflicient height, width of span, or otherwise, it should be the duty of the Secretary, after hearing the parties concerned, to take action looking to the removal or alteration of the bridge, so as to render navigation through or under it reasonably free, easy, and unobstructed. As this court repeatedly has held, this is not an unconstitutional delegation of legislative or judicial power to the Secretary. Union Bridge Co. v. United

The chief contention of the plaintiffs is that the Secretary of the Interior misconstrued the law applicable to the facts conceded and proved, and that this resulted in the issue of patents to one set of claimants

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

when the other set was entitled to them. fields reduced to cultivation,-the tillable Under a familiar rule, if this were true, ground being regarded as an improvement. the plaintiffs would be entitled to the relief Blassingame took possession of all the lands sought. Ross v. Stewart, 227 U. S. 530, now in dispute, ditched a large part of 535, 57 L. ed. 626, 629, 33 Sup. Ct. Rep. them, brought practically all under culti 345. But was there any material miscon-vation, and erected substantial buildings struction of the law by the Secretary? We thereon, the estimated cost of this work besay material misconstruction, because, if his decision was otherwise right, its force was not lessened by anything he may have said concerning what was not material at the time.

ing $2,500. He remained in possession until December, 1902, and then sold to one Brimmage. Two or three months later Brimmage sold to one Reynolds, who went into possession of all but about 80 acres, presThe lands of the two tribes were being ently to be noticed, and afterwards made allotted in severalty among their members application for the allotment of the lands under the agreement set forth in § 29 of to his minor children, the contestees. the Act of June 28, 1898, chap. 517, 30 At no time during Blassingame's occuStat. at L. 505, and the supplemental agree-pancy was there any serious effort by any ment embodied in the Act of July 1, 1902, of the Campbells or by the guardian to dischap. 1362, 32 Stat. at L. 641. These agree-possess him. By a court decree he and his ments defined what should be a standard family had been adjudged to be members allotment, entitled each member to such an of the Chickasaw tribe and were accordingallotment, to be selected by or for him, and ly entitled to share in the occupancy and permitted the selection to be so made as to use of the tribal lands. By a later decree include his improvements, if any, but with- they lost this status, but not until after out exceeding a standard allotment. When the sale to Brimmage. The status of the the conflicting applications therefor were latter, as also that of Reynolds, was such made the lands in controversy were not that either could hold whatever passed by wild or vacant, but improved and occupied, Blassingame's sale. and the issues in the contest all centered about the ownership of the improvements. Both sides claimed to own them, and to have in consequence a preferred right of selection.

In November and December, 1902, Campbell's widow, three of his sons who then had attained their majority, and the guardian of two of his sons who were still minors, sold and quitclaimed to one Hill all The facts found by the Secretary of the of their rights in the lands in controversy Interior and his findings were not with- and the improvements thereon. Afterwards out evidence to sustain them-are as fol- Hill made application to have the lands lows: These lands were part of a much allotted to his minor children, the contestlarger body, containing 12,000 or 15,000 ants. His status was such that he could acres, which had been inclosed and occu-hold whatever he received from the Camppied by one Campbell in his lifetime. He bells. was a white man who had married into the Chickasaw tribe. Of the lands so inclosed he reduced 1,200 or 1,500 acres to cultivation and used the remainder for pasturing live stock. His dwelling and the improvements connected therewith were upon part of the inclosed lands, but not upon those in controversy. He died in 1896, leaving a widow, two married daughters, and five minor sons. A guardian for the minors was appointed, but permitted matters to drift without any particular control by him. The widow and minor sons continued to occupy the home place, and she, with the guardian's assent, looked after the cultivation and renting of the tillable fields and made some use of the pasture land. In Upon these facts the Secretary of the InJanuary, 1899, for a consideration not chal-terior concluded that the contestees, the lenged, she surrendered 640 acres of the inclosed land, with the improvements thereon, to one Blassingame. This tract embraced the lands in controversy. At that time the improvements on the latter consisted of a surrounding 4-wire fence and two or three

No improvements were added by Hill, save a short and unsubstantial fence, and when the contest was begun he had not been in possession of any part of the lands, save a tract of 80 acres or less. He had been in possession of it less than a year, and had entered without leave, and in disregard of such rights as had arisen out of Blassingame's occupancy and improvement for nearly four years. In this way Reynolds was prevented from taking possession of this tract.

The members of the Campbell family all selected and received other lands for their allotments, so none of those in dispute were needed for that purpose.

Reynolds children, had the better claim to the improvements and therefore the better right to select the lands for their allotments. In this we perceive neither any misconstruction nor any misapplication of the law. We assume, of course, that upon