The act of congress of 1866,37 which authorized a bridge to be constructed across the Missouri River at Kansas City, required that the distance of 160 feet between the piers of the bridge, which was called for by the act, should be obtained by the measuring along a line between said piers drawn perpendicularly to the faces of the piers and the current of the river; and as such a line drawn between the piers of the bridge of the plaintiff in error measured only 153 feet and a fraction of a foot, instead of the required 160 feet, it was held that it was not a lawful structure within the meaning of that act.38 If Congress authorizes the construction of a railway bridge across a navigable river, and prescribes the location and mode of its construction, and the bridge is built in conformity therewith, it is then a legal structure; but if it is apparent upon its completion, owing to its location or mode of construction, or through some change in the channel of the river, that such bridge is in fact an unreasonable obstruction to navigation, Congress can require it to be remodeled or to be entirely removed if that is the only remedy. If when constructed it is a legal structure its status cannot be charged by judicial action, or by any power short of that which legalized it in the beginning. And Congress may legalize a bridge after its erection."

§ 128. Power of Congress to Declare Bridge a Lawful Structure After Its Being Adjudged a Nuisance; or After Injunction Suit-Post-Route.40-Congress has power to provide by statute that a bridge is a lawful structure, and such act will be constitutional,41 although that bridge has, by decision rendered before the said enactment, been held to be a nuisance.42 The prior judgment, however, which related to 37 Act July 25, 1866, 14 Stat. 244, A. Chatfield Co. v. City of New § 10. Haven, 110 Fed. 788, 792.

the abatement of the bridge, proceeded upon the ground that the bridge was in conflict with the then existing regulations of commerce by Congress, and was executory, depending upon the bridge continuing to be an unlawful obstruction to the public right of free navigation, but that right having been so modified by the above-mentioned act of Congress that it no longer constituted an unlawful obstruction, the prior decree could not be enforced, and the authority to maintain the bridge existed from the moment of said enactment, for the authority then combined the concurrent powers of both governments, state and Federal, which are sufficient. The bridges concerning which this controversy arose were over the Ohio River, and the act of Congress declared them to be lawful structures at their then height and position, and required the officers and crews of vessels navigating the Ohio River to regulate their vessels so as not to interfere with the elevation and construction of said bridges.43 An act of Congress is also constitutional which provides that a certain bridge, theretofore erected over a river which divides two States, "shall be a lawful structure, and shall be recognized and known as a postroute.". Such an enactment means not only that the bridge shall be a post-route but also that as built, with its abutments, piers, superstructure, draw and height, it should have the sanction of law, and be maintained and used in that condition, and this is so, even though the statute is declared by its title to be an act declaring the bridge "a post-route." Such enactment also operates to abate an injunction suit, instituted prior to the passage of the act, to prevent erection of the bridge and to have it declared a nuisance, even though the case was ready for a hearing.44

I

See as to bridge as a nuisance as to free navigation of the Ohio Joyce on Law of Nuisances (ed. 1906), § 274.

43 The act was passed Aug. 31, 1852, 10 Stat. at L. 112, §§ 6, 7. Decree in former case was at May term, 1852. Said act was also held not invalid by reason of the compact,

River, made between Virginia and Kentucky with the sanction of Congress when the latter State was admitted into the Union.

44 Clinton Bridge, The, 10 Wall. (77 U. S.) 454, 20 L. ed. 969.

§ 129. Power of Congress to Grant Franchise to Railroads-Interstate Commerce-The Pacific Railroad Companies.-That Congress has power to construct, or to grant franchises to individuals or corporations to construct, railroads across the States and Territories of the United States is so held in relation to the statutes enacted by that body, conferring franchises of the most important character upon the Central Pacific Railroad Company; and the United States Supreme Court declares upon this subject as follows: "If, therefore, the Central Pacific Railroad Company is not a Federal corporation, its most important franchises, including that of constructing a railroad from the Pacific Ocean to Ogden City, were conferred upon it by Congress. It cannot be doubted that Congress, under the power to regulate commerce among the several States, as well as to provide for postal accommodations and military exigencies, had authority to pass these laws. The power to construct, or to authorize individuals or corporations to construct, National highways and bridges from State to State, is essential to the complete control and regulation of interstate commerce. Without authority in Congress to establish and maintain such highways and bridges, it would be without authority to regulate one of the more important adjuncts of commerce. This power in former times was exerted to a very limited extent, the Cumberland or National road being the most notable instance. Its exertion was but little called for, as commerce was then mostly conducted by water and many of our statesmen entertained doubts as to the existence of the power to establish ways of communication by land. But since, in consequence of the expansion of the country, the multiplication of its products, and the invention of railroads and locomotion by steam, land transportation has so vastly increased, a sounder consideration of the subject has prevailed and led to the conclusion that Congress has plenary power over the whole subject. Of course, the authority of Congress over the Territories of the United States, and its power to grant franchises exercisable therein, are, and ever have been, undoubted. But the wider power was very freely

exercised, and much to the general satisfaction, in the creation of the vast system of railroads connecting the East with the Pacific, traversing States as well as Territories, and employing the agency of state as well as Federal corporations." 45 As to the Central Pacific Company, it is a corporation of California recognized as such by the acts of Congress granting it aid and conferring upon it Federal franchises, and it was not the object of those acts to sever its allegiance to the State or transfer the powers and privileges derived from it; nor did those consequences result from the acceptance of the grant by the corporation; nor is the state franchise destroyed by or merged in the right granted under the acts of Congress so that taxation by the State of the franchise granted by it is precluded. was also held that the property of a corporation of the United States may be taxed by a State, but not through its franchise.46 Again, the Union Pacific Railway Company is, as to its road, property and franchises in Kansas, a corporation de facto created and organized under acts of Congress; and as to the same in Nebraska, it is strictly and purely a corporation deriving all its corporate and other powers from acts of Congress. The Texas and Pacific Railway Company is also a corporation, deriving its corporate powers from acts of Con

45 California v. Pacific Rd. Co., 127 U. S. 1, 39, 40, 32 L. ed. 150, 8 Sup. Ct. 1073, per Bradley, J., citing Pacific Rd. Removal Cases, 115 U. S. 1, 14, 18, 29 L. ed. 319, 5 Sup. Ct. 1113.

4o Central Pacific Rd. Co. v. California, 162 U. S. 91, 40 L. ed. 903, 16 Sup. Ct. 766, affirmed and followed in Southern Pacific Rd. Co. v. California, 162 U. S. 167, 16 Sup. Ct. 794, 40 L. ed. 929.

It

the United States? It seems to me that the franchise to build, operate and maintain a railroad from San Francisco to a point of junction with the Union Pacific Railroad is a unit, and that it is utterly impracticable to separate and sell so much of that franchise as originally came from the State, and leave intact that which was derived from the United States. The State cannot lawfully do anything to impair or cripple the franchises, rights and privileges derived from the United States." Central Pacific Rd. v. California, 162 U. S. 91, 165, 40 L. ed. 903, 16 Sup. Ct. 766, per Harlan, J., in dissenting

"It may be said that the franchise which the State may sell is that which was granted by it. But is the state franchise so distinct and separate from the franchise granted by the United States that it can be sold separately from the franchise granted by opinion.

gress.47 The United States has also granted aid to the Pacific railroads as well as aid in developing the telegraph system.

48 See Joyce on Electric Law (2d quire such companies to account for ed.), §§ 30-37a.