author: LAUBIE, J. COOK, J. BURROWS, J.,

text:
    BRIDGES — COUNTIES—NAVIGABLE STREAMS.
    [Ashtabula (7th) Circuit Court,
    September Term, 1905.]
    Cook, Burrows and Laubie, JJ.
    State ex rel. Harper v. Commissioners of Ashtabula Co.
    1. Secretary op Wab cannot Compel Removal op Established County Bkidqe, when.
    The secretary of war has no authority to order and compel the commissioners of a county to remove an established bridge over a navigable river wholly within the limits of the state and rebuild it in such a manner as to change the course of such river by straightening the same at the point in question, and throwing the channel fifty feet to the east.
    ' 2. Nob Compel Commissioners to Tear it Down without Compensation.
    Such secretary cannot require commissioners to tear down such bridge upon the ground that it is an unreasonable obstruction to the free navigation of such river without tendering compensation therefor,
    g. Injunction Lies to Restrain Removal op County Bkidse, when.
    The bridge in question having been lawfully erected by the county of Ashta-bula over a navigable stream wholly within such county, and before the congress attempted to confer authority upon such secretary to regulate the construction of bridges, the courts of the state have jurisdiction over such bridges and may enjoin the commissioners' of such county, on the petition of a taxpayer, from carrying out such order of such secretary, and from tearing down and removing such bridge and building a new and different one in its place, and changing the channel of such stream, and from issuing bonds and levying a tax to pay the expense thereof.
    [Syllabus by the court.]
    ERROR to Ashtabula common pleas court.
    M. G. Spaulding and E. H. Starkey, for plaintiff in error.
    A. C. White, B. F. Perry and C. L. Taylor, for defendants in error:
    Constitutionality of these statutes. ¡State v. Bridge Co. 59 U. S. (18 How.) 421 [15 L. Ed. 435] ; United States v. Copper Co. 196 U. S. 207 [25 Sup. Ct. Rep. 222; 49 L. Ed. 449]; Gilman v. Philadelphia, 70 U. S. (3 Wall.) 713 [18 L. Ed. 96]; United States v. Bridge Co. 45 Fed. Rep. 178; Miller v. New York, 109 U. S. 385 [3 Snp. Ct. Rep. 328; 29 L. Ed. .971]; United States v. Moline, 82 Fed. Rep. 592; Chatfield v. New Haven, 110 Fed. Rep. 788; Minnehaha Co. v. Thorne, 6 S. Dak. 449 [61 N. W. Rep. 688]; Senior v. Batterman, 44 Ohio St. 661 [11 N. E. Rep. 321] ; Stale -v. Turnpike Co. 37 Ohio St. 481; Chicago, B. & Q. Ry.'v. Cutts, 94 U. S. 163 [24 L. Ed. 94]; GentsQh v. State, 71 Ohio St. 151; State v. Spellmire, 67 Ohio St. 77 [65 N. E. Rep. 619]; State v. Graham, 16 Neb. 74. [19 N. W. Rep. 470]; State v. Pugh, 43 Ohio St. 98 [1 N. E. Rep. 439] ; Herrmann v. Cincinnati, 6 Circ. Dec. 151 (9 R. 357) ; Merrill v. Toledo, 3 Cire. Dec. 524 (6 R. 430) ; Costello v. Wyoming, 49 Ohio St. 202 [30 N. E. Rep. 613]; Cooley, Const. Lim. 390; Groesch v. State, 42 Ind. 547; Cincinnati Street By. v. Horstman, 72 Ohio St. 93; Darling v. Berry, 13 Fed. Rep. 659; State v. Eendle, 52 390; Groesch v. State, 42 Ind. 547; Cincinnati Street By. v..Horstman,. 72 Obio St. 93; Darling v. Berry, 13 Fed. Rep. 559; State v. Kendle, 52'. Ohio St. 346 [39 N. E. Rep. 947]; Walker v. Cincinnati, 21 Ohio St¡ 14. [8 Am. Rep. 24]; Barbier v. Connolly, 113 U. S. 27' [5 Sup. Ct. Rep. 357; 28 L. Ed. 923]; Giozza v. Tiernan, 148 U. S. 657 [13 Sup. Ct. Rep. 721; 37 L. Ed. 599]; New York Elevated By. In re, 70 N. T. 327; State• v. Franklin Co. {Comrs.) 35 Ohio St. 458; St. Joseph Co. {Comrs.) v. Pidge, 5 Ind. 13; Hutton v. Webb, 59 L. R. A. 36, note; Pennsylvania v~ Bridge Co. 59 U. S. (18 How.) 421 [15 L. Ed. 435],
   LAUBIE, J.

The case of the State of Ohio ex rel. Lewis Harper, a taxpayer, against the commissioners of Ashtabula county, is here upon error, and presents to Us a very grave question.

In the court of common pleas a demurrer was sustained to the petition and the case dismissed, which is the error complained of.

While Judge Cook agrees with me in the reversal, the reasons upon which I base it are my own. His reasons are stated in a separate opinion.

The action was brought to restrain the commissioners from issuing bonds and levying a tax to the amount of $200,000, for the purpose of removing a bridge over Ashtabula river, constituting a part of Bridge street in the city of Ashtabula, in this county, and building a new one in place thereof — a bridge that it is conceded is appropriate for the place, in perfect order and condition, not even needing any repairs, and not in any manner obstructing navigation and being but a short distance north from the navigable end of said river, which runs north into Lake Erie. What right have they to do it? They stand here declaring they have the right, and insisting upon that right.

There must be some legal right given them, under some provision of law to tear down a perfect bridge, constituting part of a principal street of a city, under the facts stated, and build a new one at this immense expense to this county.

There is no doubt of their right of control of the bridge, and they claim the right in question by virtue of a statute of this state passed March 24, 1904 (97 O. L. 53; Lan. 4258), evidently passed to meet this¡ case, and principally it is claimed, through the influence, and for the benefit, of the railroad companies that have built docks on the east bank of this river south of the harbor proper not only to, but south of, the bridge; the east bank is low and level, but the west bank is hilly and uneven along the point in question.

This part of the city is on the lake front, and is north of, and separated from, the main part of the city by one and a half miles of farm lands, and the navigable portion of the river ends about half way between these sections of the city; and the bridge in question constitutes part of the main street of said north section, and is the only people’s bridge across the river at this important section of the city.

Section 1 of said statute is as follows:

“Section 1. That the county commissioners of any county having control of any bridge or bridges which have been condemned or ordered removed by the war department of the United States, under authority of law, as an obstruction to navigation, shall have power to remove such bridge or bridges and to rebuild or replace the same or construct a new bridge or bridges over the stream or streams crossed by the bridge or bridges so condemned or ordered removed; and for this purpose such commissioners shall have power to purchase or appropriate property, in the manner provided by law, to widen the channels of such stream or streams. ’ ’

And Sec. 2 provides how they may issue bonds and levy a tax for this purpose.

The defendants claim that this statute not only confers upon them the power claimed, but that they are compelled to exercise it by reason of the fact that the secretary of war had condemned this bridge as an obstruction to navigation, and ordered them to remove and rebuild it as apparent from the allegations of the petition, and from the original order of the secretary, which they submit to us for consideration.

And yet counsel for defendants assert against the. right of the plaintiff to the injunction asked for, that it does not appear from the allegations of the petition that the bridge in question is a county bridge.

If this assertion was correct, and if this is not a county bridge, the commissioners could not have any control over it, and could not be required to remove and rebuild it at this expense to the county, and the injunction asked for should be granted without further' consideration. Such a claim deserves no consideration at our hands. The statute they rely upon could not be construed to include any but county bridges; and they, as well as the secretary of war, have been acting on the assumption that it is such a bridge.

We are therefore compelled to ascertain first, whether such order was made by the secretary; and, second, if made, did such secretary have the authority to make and enforce it.

The facts, as stated in the petition and therefore admitted to be true, and supported by the terms of such original order, are, that the secretary had ordered the commissioners merely to alter said bridge by removing the center pier, as it is called in the order, from the, river, because it is an obstruction to navigation, and to dredge at that point to -a depth of twenty-one feet below the mean level of Lake Erie, which of course would have the effect of widening the channel of such stream the width of such pier as it is admitted to be on the east bank of the river, and upon which this bridge swings.

Was that an order condemning this bridge as a whole and ordering its removal?

In one sense, it is a condemnation of the bridge, but the order directs only an alteration of it, by removing the so-called center pier.'

Defendants claim that such order in effect required them to remove the whole of the bridge, that the removal of the so-called center pier would destroy the bridge as a whole; that it could not thereafter be repaired and restored.

Such effect, or intention, is not apparent from the order and would have to be established by proper evidence in defense.

If such was the order in effect, it would render the next question in this case less difficult perhaps of solution.

That question — the main and decisive question in this case — is: •Could congress confer, and did it confer upon the secretary of war the authority to make and have enforced such order?

This question is in no wise affected by the action of the Ohio legislature in passing the statute of March 24, 1904 (97 O. L. 53):

First, because the effect, legality and constitutionality of acts of •congress and of the state legislature, are matters for the courts to determine; and the action of such legislature would be a mere nullity if •congress did not, or could not, vest such power in the secretary of war.

Secondly, because the act claimed to confer upon such .secretary the authority in question, provides that it is only the “lawful order" •of such secretary that may be enforced; and because such Ohio statute also provides for, and confers upon, the commissioners authority to act •only in cases wherein such secretary has the power “under lawful authority” to make such condemnation; in other words, that such power has been lawfully conferred upon such secretary; and that is the main question in this case. If congress did not, or could not, confer such authority .upon such secretary, the commissioners could not exercise the power specified in the Ohio statutes, and could not be held civilly or criminally responsible for disobeying such order; and could be enjoined -from obeying it in a proceeding like this.

The authority conferred upon the secretary of war in such eases is in the act of March 3, 1899 (30 U. S. Stat. at L. 1121), which superseded Secs. 4, 5 and 7 of the get of September 19, 1890 (26 U. S. Stat. at L. 426).

Section 4 of said last-named act was the one that defined the power conferred upon the secretary in such eases, and the wording of Sec. 18 of the act of 1899 which superseded said Sec. 4 conferring such power upon such secretary, is in precisely the same words, except that it provides the alterations, directed by the secretary to be made in the structures, shall be such as are recommended by the chief engineer of the department.

Said Sec. 18 also superseded said Sec. 5 of said act of 1890, making the wilful refusal or neglect to obey the lawful orders of such secretary a misdemeanor, and provides:

“If the persons, corporation, or association owning or controlling •any railroad or other bridge * * * wilfully fail or refuse to remove the same or to„ comply with the lawful order of the secretary of war in the premises, such persons, corporation, or association shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding five thousand dollars, and every month such persons, corporation, or association shall remain in default * * * shall be deemed a, new offense. ’ ’

It will be noticed that in this part of said See. 18 of said act of 1899, the word “association” is added to the words “persons or corporations,” used in the previous part of said section, and in the original 'act, in defining the owners or controllers of such railroad or other bridge.

Section 7 of said act of 1890 related to the building of bridges in the future.

The bridge in question here was built in 1889, by the county of Ashta-bula, through its commissioners, under authority from the state, and tlie Ashtabula river is wholly within the state of Ohio, and is only navigable for about three-fourths of a mile south from Lake Brie.

The effect of the act of September 19, 1890, hereinbefore referred to, upon the rights of the state, and the jurisdiction of the state courts,, over such structures, was determined in the case off Lake Shore & M. S. Ry. v. State, 12 O. F. D. 1 [165 U. S. 365; 17 Sup. Ct. Rep. 357; 41 L. Ed. 747].

The railroad company had built a solid bridge over the river in question here, a short distance south of this bridge; and the proceeding’ was in quo warranto upon the part of the state to compel the company,. upon tbe ground that tbe bridge was a public nuisance, in' that it obstructed navigation, to remove tbe bridge, or to so change it, by making a draw span, that navigation would not be obstructed; and such was tbe order of tbe state courts in tbe case.

Tbe defense set up by the company was, that tbe Ashtabula river was a navigable water way of the United States; that tbe act of congress of * 1890 bad taken away tbe right of tbe state as to all structures on or over such water ways and that tbe state courts bad no jurisdiction of the subject-matter.

Section 4 of said act of 1890, which was simply re-enacted in Sec. 18 of the act of 1899, as heretofore stated, was as follows:

“That whenever the secretary of war shall have good reason to believe that any railroad or other bridge now constructed, or which may hereafter be constructed, over any of the navigable water ways of the United States is an unreasonable obstruction to the free navigation of such waters on account of insufficient height, width of span, or otherwise, or where there is difficulty in passing the draw opening or the draw span of such fridge by rafts, steamboats, or other water craft, it shall be the duty of the said secretary, first giving the parties reasonable opportunity to be heard, to give notice to the persons or corporations owning or controlling such bridge so to alter the same as to render navigation through or under it reasonably free, easy, and unobstructed; and in giving such notice he shall specify the changes required to be made, and shall prescribe in each ease a reasonable time in which to make them.”

The Supreme Court affirmed the action and order of the state courts, and held that full power resided in the state as to the erection, removal or modification of bridges and other structures in navigable streams wholly within the limits of the state, in the absence of the exercise by congress of authority to the contrary. That the act of 1890 not only did mot abridge that power, but recognized its existence, and did not confer upon the secretary the right to determine when and where a bridge may be built. That the state court had jurisdiction, that it was not necessary to decide, and the court did not decide, whether the Ashtabula river was a water way of the United States or not; and that said act of 1890 simply created an additional remedy to prevent such structures from in- ■ terfering with commerce; meaning interstate commerce.

It is settled, therefore, that the power of the state, and the juris-' diction of its courts, over the then existing bridges on this river have not been taken away by the acts in question; nor have they been by any other acts subsequently passed by the congress, if they could be, but remain intact; and as the bridge in question here was built by this county under authority from the state, in 1889, the pertinent question arises:

Could congress delegate to the secretary of war the power to find and adjudge that the Ashtabula river is a water way of the United States, and that such bridge is an unreasonable obstruction to the free navigation of said river, and to order the county of Ashtabula, through its commissioners, to change and alter said bridge by destroying one of its piers, and to widen the channel of said stream by dredging at that point to the depth of twenty-one feet below the mean level of Lake Erie, and to rebuild said bridge according to the plans and specifications furnished by the secretary, and within the time fixed by him?

We have seen that the Supreme Court of the United States refused to pass upon the question whether this river was a water way of the United States or not.

It seems as if the court had doubts upon the question, or it would not have hesitated in holding that such stream was a water way of the United States, as thé question was made and relied upon by the railway company.

But, how could congress delegate the power and confer the judicial functions specified in said Sec. 4 of said act, and as re-enacted in said Sec. 18 of the act of 1899, upon a mere government official, functions belonging only to courts under the provisions of the constitution, which provides that the personal rights of citizens, and their property, cannot be taken from them, confiscated or destroyed, save upon just compensation, and by due process of law.

Congress is like any other representative body, and if it could, as a legislative act, make such finding and order itself as to this stream and bridge, it could not delegate such legislative power to a government official.

In support of the constitutionality of the act, it is claimed that the authority conferred upon the secretary of war by the act in question to determine what is an obstruction, is merely administrative in its character,— simply to aid congress in carrying out its legislative action, and not an authority to fix or make the law.

In what sense are such duties thus cast upon the secretary administrative and the secretary not thereby authorized to fix or make the law?

Congress has not only left the finding of every fact to the secretary, but every question of law and fact.

Here the whole power to find and adjudge such river to be such-water way, and such bridge to be an unreasonable obstruction to such water way, and to order its alteration, is vested solely id the secretary, and his action is final; and the owner is subject to a criminal action under the provisions of such act, if he refuses or neglects to obey such order.

If such power is merely administrative, why would it not also be •conferring administrative power to authorize the secretary to fine the owners of such bridge for refusing or neglecting to obey the secretary’s order, instead of appealing to the courts. If he may make such findings himself, and compel the owner to destroy part of such valuable structure, and expend his own money in rebuilding it, why could he not hold in contempt, and impose a fine on, such owner for refusing to obey the order ?

The powers thus attempted to be conferred upon such secretary, are not legitimately legislative either in their character, but judiciál solely, to be conferred upon, and exercised by, the courts alone; that is in part, as some of those powers even courts could not exercise.

While the Supreme Court of the United States, as in the case cited, has passed this act by as valid, yet its validity was not then and has never been questioned and brought to that court for consideration and decision.

The lower courts which have held it constitutional, in support thereof, have held that, “The power to determine what shall, or what shall not be in law an obstruction to navigation is vested in congress; ’ ’ and “Whether a thing obstructs navigation or not is a question not of law, but of fact.” Well, the same might be said of any crime, as the statutes define what constitutes a crime. If this assertion were true, it would be immaterial. But I cannot see why the questions whether a river is a water way of the United States, and whether a bridge over it is an unreasonable obstruction to navigation, are not mixed questions ■of law and fáct.

In Chatfield Co. v. New Haven, 110 Fed. Rep. 788, and United States v. Union Bridge Co. 000 Fed. Rep. 000, decided recently in the district court for the western district of Pennsylvania the district judges, held this act constitutional on the ground that it had been so decided by Judge Grosscup, in United States v. Moline, 82 Fed. Rep. 592; and which is the case relied upon here for the same purpose.

Those courts were mistaken, as well as counsel here, as to the effect of the holding in United States v. Moline, supra. It was a peculiar case, and Judge Grosscup held that while the act in question was unconstitutional in its general application, it was constitutional as applied to the case he had in hand, for the reason that the legislature in the grant to .-the company of the right to build the bridge had reserved the right to compel the company to alter it to a draw .'span bridge at any time in the-future, and that therefore the successor to the franchise, the city, had no right' to compensation, although the order was made by the secretary of war, as congress had declared the stream to be a water way of the United States, and had succeeded to the rights of the state in regard to the bridge.

The opinion is as peculiar as the case. On page 598, it is said that the proposition as to the validity of the act presents two questions:

“First. Is the bridge an obstruction to navigation? Second. Is it there by any such legal right that the government may not interfere with it in the respect designated without just compensation? The firsf question is purely administrative, and is one that congress can certainly delegate to the secretary of war. A thousand questions of equal momeiu to the parties interested, and of equal difficulty, are necessarily delegated to the great departments of the government every month. In the very nature of things, congress cannot dispose of them. A government of the size of this, operated upon such a conception, would be clogged immediately. ’ ’

A peculiar reason for giving such power to the war department instead of the judicial. The learned Judge, proceeds:

“The second question is undoubtedly judicial, and for that very reason is not subject, constitutionally, to the decision of eongress any more than of the secretary of war. If the bridge be there by legal rig ht, —if it be a franchise or property that cannot be taken except after j list compensation, — congress is powerless, either by general or special acts, to touch it. In the face of such property right congress is as helpless as the war department.”

At the close of the opinion the judge, referring to the crim’.nal action provided, for in the act says:

“This right of appeal to the judiciary in all questions in their nature judicial is preserved in the sections of the statute under discussion. The secretary of war has no power to carry out his decision respecting these obstructions except through a court. Any question, whether of law or fact, essentially judicial, may be raised under these informations. A court of the United States stands always, by the clear provisions of the act, between the decision of the secretary and its execution. There is, therefore, in the act, no delegation of-judicial power to the secretary that is not open to review in the courts. I hold, therefore, that the act, so far as it is applicable to the case in hand, is constitutional and valid.”

It is evident, therefore, that he held the act constitutional only so far as the ease he had before him was concerned, and on the ground I 'have stated — that - the defendant was not entitled to compensation.

But that is a legal question, to be determined before the order to •alter the bridge is made, and could not be decided by the secretary, and the criminal ease is only to punish the party for not obeying such order.

The right involved in his second question, conferred upon the secretary by the act, he declared was undoubtedly judicial as to such legal bridges, and it is impossible to believe that he intended to hold, and was holding, that the act was constitutional as applied to any and all bridges, and their owners, because such owners, when prosecuted criminally for disobeying the order, might plead the unconstitutionality of the act as a defense.

But how could that make the act constitutional1? Every act is subject to review by courts, and if that would make them constitutional, the review would be useless. But in such case the court simply would have to hold that the act was unconstitutional, and discharge the defendant, if the authority conferred upon the secretary was undoubtedly .judicial, as declared by Judge Grosscup, as to bridges included in his •second question, and which could not be conferred upon the secretary, nor exercised by congress itself;, and consequently the action of the secretary would be absolutely void.

“Oh, yes,’’ in effect say the defendants here, “but it can be adjudged unconstitutional only by the court in the criminal ease provided for in ■the act; and as we have agreed to obey the order, tear down the bridge and rebuild it, no such criminal action can be brought, and the county or its taxpayers cannot interfere, consequently the act is constitutional •as to this bridge. ’ ’

Is such an argument entitled to any consideration?

“But the test put by Judge Grosscup necessarily eliminates from ■consideration some very important elements.

His second question, or test, eliminates the constitutional provision, that the civil rights of citizens and their property, cannot be taken from them except by due process of law, and the' action provided for in this statute is a direct violation of such provision. It is a criminal action, to be instituted at the instigation of the secretary, to have the owners of such bridge punished for refusing or neglecting to obey his order.

The first question, or test, also eliminates an important proposition.

Instead of such test being whether such bridge is an obstruction to navigation, as he puts it, it should be whether it is an unreasonable obstruction, as declared in the act in question of March, 1890, which was passed to amend the original act of 1888, by the insertion of the word ■unreasonable, so as to make it read “unreasonable obstruction',” so that á bridge constituting a reasonable obstruction could not be ordered removed or altered.

The determination of what an unreasonable obstruction, as contra-distinguished from a reasonable one, clearly involves a question of law as well as of fact, just as in the determination of what is a reasonable time in which to perform an act as contradistinguished from an unreasonable time, which, all courts hold, involves a question of law as well as of fact; and time and again have set aside the verdict of juries on that very ground, their verdict being contrary to what, in the eye of the law, would be a reasonable time; and on that ground the act in question has been held unconstitutional.

In United States v. Bridge Co. 45 Fed. Rep. 178; and United States v. Commissioners of Muskingum Co., 7 O. F. D. 191 [50 Fed. Rep. 406] r the courts held the act unconstitutional because the power to determine whether a lawfully erected bridge was an unreasonable obstruction to-navigation was a judicial function — a mixed question of law and fact— which even courts could not determine without a constitutional jury; and could not be delegated to any subordinate authority or person.

How is it possible under the provisions of the constitution, for congress to confer upon the war department the authority to determine that a state, a county, a person or corporation has no legal right to maintain an established bridge over a river, and to order and compel such owner to tear it to- pieces, change and alter it according to plans and specifications furnished' by such department.

If it can confer such authority in such eases, why may not congress confer upon the secretary of war the power to hear and decide all cases where the rights of the general government and a state or its citizens, or others come in conflict?

To find and adjudge that a stream wholly within one state, and navigable less than a mile is a water way of the United States, when congress, had not defined what constitutes such a water way, and that a drawbridge over the same lawfully erected by the county where such navigable portion lies, under authority from the state, and constituting part of a street of a city, with a draw span the full width of the stream is an unreasonable obstruction to the free navigation of such stream and. to order certain parts of such bridge to be torn down and removed because thereof, is clearly the exercise of judicial functions belonging only to courts, and cannot be conferred upon, and exercised by, a mere government official, even as against private parties, let alone a civil division of a state. Beyond question it is condemning a lawfully erected structure, the property of a civil division of a state, as a public nuisance and ordering its removal by such owner, which only can be done by the finding of a constitutional jury or the judgment of a jurisdictional court, upon a specific legal indictment, complaint or other judicial procedure.

It is the compelling of a county, a civil division of the state, second only to the state itself, to destroy the efficiency and value of its property, not only without due process of law, but without compensation, and at its own expense, which in no event could legally be done unless such a structure was adjudged to be a public nuisance, as in the ease of Lake Shore & M. S. Ry. v. State, supra.

In whom can such authority be vested but the established courts of the government having jurisdiction over the subject-matter? and upon no other ground could the county, through its commissioners, be required to destroy the usefulness and value of such lawfully erected structure, by tearing away a valuable and necessary part thereof without compensation, and at its own expense.

Compelling the county to tear away and destroy a valuable part of its bridge, to the injury of the whole, and at its own expense, leaving out of view the rebuilding of it, on the mere order of a govérnment official, evidently is the taking of the property of such county, and without due process of law. To compel one thus to destroy not only the efficiency, but the existence of his property, deprives him of that property and of the money required to pay for doing the work, and, therefore, in effect, takes the property and money from him, and without due process of law.

It is immaterial upon what ground it is done. If because of its being a public nuisance, or, casting aside such name, because it is claimed to be an obstruction to navigation, it only can be done by due process of law.

And that is not all. The act in question authorizes the secretary to do this without finding that such structure in fact is an unreasonable obstruction to the free navigation of such streams. All he is required to do is to declare, as he has in this instance, that he has good reason to believe that it is such an obstruction. Such belief would authorize a court or a jury to find as a fact, and adjudge such bridge to be such an obstruction, but without such finding and judgment, such declaration would avail nothing.

Congress cannot constitutionally confer even upon courts the right to order the destruction in whole or in part, of a lawfully erected and valuably structure like this, without such finding and judgment.

But, if congress can delegate sueb power to tbe secretary of war, and tbe act in question is valid, the result is tbe same. The act does not confer authority on such secretary in regard to bridges owned by ¡ a county, a civil division of a state.

In construing a statute, where a particular matter or thing is named, followed by general words to include generally such matters or things, such general words are held only to mean and include matters and things of a similar nature to those specially named. And “or other bridges,” in this act means bridges similar to the ones specifically named; to wit, railroad bridges, and therefore only include such ás are owned or controlled by railroad or other private corporations, and not such as are owned by a civil division of a state, and controlled by its representatives. The whole act sustains this construction," as its provisions apply solely to individuals, railroad and other corporations and associations of a commercial or private character, as contradistinguished from other bodies, as a state or its divisions like a county. While county commissioners control county bridges, they do it merely as representatives of the county, and not as individuals or as a corporation or association.

The granting of power to “persons, corporations or associations” to build bridges and maintain them, by the United States, or a state, could never be construed to'/mean and include counties or their commisr si oners; nor can the statute in question be construed differently. ,

County commissioners cannot perform a duty or an act except such as the state authorizes them To perform as and for the county they repT resent as a part of the state.

• They have nothing to do with such matters personally as individuals, or as a corporation or association, and are not included within the legitimate, legal and ordinary meaning of such names; .and I think the act in question, which must be construed strictly, under the well-settled rules of law, cannot be construed as conferring upon the secretary authority to take action in regard to bridges that were lawfully constructed by such civil division of a state simply because the control of such bridges is vested by the state in such officials. Nor do I think congress had in' view, or intended to include, such bodies as county commissioners in the passing of such acts. Although such bodies may in some of the states, as in Ohio, have control of county bridges, they could not be held to obey such orders if as a body they have no money which they could devote to such work, and no right or authority to raise it for that purpose ; and' there is not a county in the states where the commissioners have such authority unless given in some special statute passed at the instance of interested parties, as claimed in this instance.

No sueb general power is vested in them, and congress knew it, :and conld not have intended to include such commissioners in the phrase “corporations or associations.” Nor was congress so ignorant of the meaning of these words, that it believed, or could be induced to believe, that a civil division of a state, or its representatives, were included in such designations.

But if such act includes county commissioners, where can be found the authority to support the claim that such secretary, or congress, has the right lawfully to order and compel the county of Ashtabula, through its commissioners to rebuild such bridge or to do the dredging described in such order and increase the present width of the channel of such stream, and within a prescribed time.

Where a structure is legally condemned as a public nuisance by reason of its obstructing navigation or otherwise, it is possible the owner may in a proper case, be legally ordered and compelled to remove it; but it is beyond me to imagine that such owner could legally be ordered and ■compelled to rebuild, and rebuild according to the plans and specifications of the body ordering its removal, and within a time specified in-such order or be arrested for noneompliance, and heavily fined, and for each month of noncompliance, as prescribed in such act. It would be rank despotism, that neither the legislative, executive or judicial ■department of this government could exercise. Therefore in this respect also the act in question is unconstitutional. Congress cannot order it ■done, nor confer the authority upon the courts. And how can the commissioners be lawfully ordered and compelled to do the dredging described in this order, and thus increase the present width of the channel -of this stream unless originally the stream was of that depth and width at that point, and was filled and narrowed by the county by placing the pier thereon or otherwise.

Instead however, of that being the case, it is conceded, and is a fact, that such-center pier, as it is named in such order, was placed on the bank of the river, and not in the river at all.

As there is no claim or pretense that the county or its officers extended the river bank at this point westward into the river, and after-wards built this pier thereon, how can congress constitutionally confer upon the secretary the authority to compel the county, or its commissioners, to do such dredging.

Having no authority to order and compel such commissioners to do such rebuilding and dredging, the order is nugatory, unlawful and unauthorized, as it is to be, and must be enforced as a whole or not at all.

But if the congress could confer the power on the secretary to make such order, evidently the object congress had in view was to render-navigation through or under such bridges “reasonably free, easy and unobstructed” by the removal of such parts of such bridge as unreasonably obstructs such navigation; and therefore congress conferred no-authority upon such secretary to order such removal unless such part, ordered to be removed, was such an obstruction, the removal of which would of itself produce such result.

The pier in this case is not such an obstruction, and its removal without the dredging directed in the order would avail navigation nothing. The order therefore was nugatory, — the secretary had no authority to make it. It must be viewed as a whole and cannot be divided. If such was the intention of congress, he cannot require the removal and destruction of a part of a valuable and important structure like this bridge unless such part is an unreasonable obstruction to the navigation of the river, the removal of which would of itself facilitate such navigation.

But further, the order of the secretary is not a lawful order, and cannot be enforced, and the commissioners held criminally liable for disobeying it, because he was mistaken as to each of the causes assigned by him as constituting the bridge an obstruction to navigation, and neither is true. As a fact the so-called center pier, upon which the bridge swings, is not and never was in the river, but placed on the natural east bank of the river, south of the harbor proper, east of the harbor line, the draw span being the full width of the river, — 120 feet, —and the faulty position of the navigable opening is caused, not by the bridge, but solely by the short, sharp curve in the river itself; all of which is admitted to be, and is, true.

The secretary did not find otherwise as facts, but simply that he had good reason to believe them to be true.

Why then should such an order be obeyed? Why should the commissioners under such an order, based upon a mistaken assumption of facts, undertake to and claim that they not only have the right to remove such bridge and build a new one at an expense to the taxpayers of this county at a cost of at least $200,000, but that they are compelled to do so.

It is alleged in the petition that the object to be accomplished by the order of the secretary of war is not to remove obstructions that are-caused by this bridge or any of its parts, but to straighten the channel of the stream, and especially for the benefit of the railroad companies, who own the docks at that point south of this bridge.

¡The statute of the state confers authority upon the commissioners,. when tbey are required to act in such, case, (wbicb they cannot do save under a lawful condemnation) to levy a tax and issue bonds and pay the expense of acquiring property for the purpose of widening the channel, not to straighten it; which is the object to be accomplished in this instance. That this is the object of the war department itself, is-apparent from the terms of the order. The order directs the commissioners not only to remove the center pier, which is at the po'int of the projecting elbow of the river bank, but to dredge at that point twenty- ■ one feet below the mean lake level, — cut the elbow off and straighten the • channel. • : ■ .

The original order has been submitted to us by counsel for the de-' fendants, as heretofore stated, and while we may not regard it in the decision of the case, I simply refer to it as showing that the statements of the petition are correct, and that I am looking at the case in a proper and legitimate light. It differs, however, very little in its wording., and none in legal effect from the order as stated in the petition.

This order was made upon a second application, the secretary of war having refused to interfere upon the first application. The grounds of his refusal are not stated, but must have been that the center pier or bridge was no obstruction to navigation, or that the stream was not ■a water way of the United States, or that he had no lawful authority to make such order.

Here is the order that finally was made:

“To the county commissioners of Ashtabula county, Ohio. Take notice, that whereas, the secretary of war has good reason'to believe that the drawbridge of the county of Ashtabula, Ohio, across the Ashtabula river at Bridge street, in the harbor of Ashtabula, Ashtabula,. Ohio, is an unreasonable obstruction to the free navigation of the said river and harbor, which are navigable water ways of the United States,, on account of an insufficient width of span, a faulty position of the-navigable opening, and the existence of the center pier and its fender in the river, there being difficulty in passing the draw opening or draw-span of such bridge by rafts, steamboats, or other water craft. And-whereas, the following alterations, which have been recommenced by the chief of engineers, are required to render navigation through it, reasonably free, easy and unobstructed, to wit: So alter said bridge as to afford a clear navigable opening not less than 140 feet between the fenders, and remove the present center pier and its fender and. •dredge at that point to a depth of twenty-one feet below mean lake level.”

In this, the original and only order, the drawbridge is characterized as an obstruction which, creates “difficulty in passing the draw or draw span of such bridge,” for three reasons,

First. “On account of an insufficient width of span,” — while the fact is, that the span is the full width of the river.-

Secondly. “A faulty position of the navigable opening,” — faulty only because it is just where this short curve is in the river, and,

Thirdly. “The existence of the center pier and its fender in the river,” and yet such pier is not in the river at all, nor is the bridge in the harbor proper, but south of it.

. The order therefore itself, viewed in the light of the admitted facts, shows that the object was, not simply to have existing obstructions to navigation caused by this bridge removed, but to straighten the course and channel of the river, which cannot be done save by the removal of such center pier.

That all parties so understood it is made more manifest, by the admitted facts stated in the petition herein, that an engineer of the war department at Cleveland, Ohio, and the defendant commissioners have agreed upon a plan for the rebuilding of the bridge, by which the west abutment is to be removed eastward fifty feet and placed in the present channel, and the street extended out to itj and the center pier removed eastward and the intermediate space on that side of the river dredged to the depth stated in the order, thus changing the course and channel of the stream fifty feet or more to the east, instead of removing the so-called center pier and its fender and dredging at that point to the depth stated.

Further this shows that the defendant commissioners are therefore intending to do, at a great expense to the taxpayers, that*which they are not expressly required to do by the order of the secretary of war, and for which they have no authority from the state.

Nor can they be compelled to obey the order itself. It is absolutely void, as no part of the bridge obstructs navigation. Whatever obstruction exists results from the natural crooked course of the stream itself.

This center pier is on the extreme point of the river bank elbow at this short curve. If the river had been straight, who would have said that a bridge whose draw span cleared the whole river was an obstruction to navigation?

The defendant commissioners assert that the order of the secretary of war, in effect, condemns and orders the whole bridge removed — that they are compelled to remove it and build a new one, and are acting lawfully in the matter.

The order of the secretary not only does not condemn and order tbe removal of the bridge, but he could not lawfully make such an order.

This bridge is a legitimate part of an important public street of the city of Ashtabula, and could not be ordered removed by the secretary of war, and the continuity of the street destroyed. The act in question does not attempt to confer upon the secretary such power. It confers upon him authority only to direct alterations to be made, and that is all he undertook to do by the order in question — to increase the width of the span to one hundred and forty feet — twenty feet of an increase ; which could easily be done, if it had to be done, by removing the so-called center pier, as the order substantially directs, twenty feet to the east, where the bridge could be swung upon it, as there is sufficient length to the bridge east of the pier to so arrange it with proper appliances.

Of their own motion the defendants intend,-if not restrained, to remove the present bridge entirely and build a jack knife or elevator bridge in place of it in the manner and style I have indicated, and there is no legislative authority, congressional or otherwise, which authorizes them to do it, and to levy a tax upon the taxpayers of the county to pay the large expense of doing it.

The courts of this state have jurisdiction over this bridge, the commissioners, and the county and its funds; and the taxpayers, who would bear the whole brunt of the matter, are entitled to protection and the remedy here sought, and which is the only remedy by which such proceedings may be stayed. There is no remedy open to these parties against the United States or its secretary of war, and if there was, it would be merely cumulative and not exclusive.

The case must be remanded to the common pleas court, with instructions to overrule the demurrer, and to grant a temporary injunction restraining the defendants from any action as prayed for, until the matter is finally decided.

COOK, J.

I concur in the judgment announced but do not concur in all the reasons assigned in support of the judgment. I do not think that the acts of September 19, 1890 (26 U. S. Stat. at L. 426), and of March 3, 1899 (30 U. S. Stat. at L. 1121), which conferred upon the secretary of war jurisdiction in casés of this character contravene the provisions of the federal constitution. The act of the secretary is merely an administrative act in carrying into effect the act of congress, and if congress could, by special act, constitutionally endow the secretary of war with power to remove a particular obstruction from a navigable river, why could not it empower him by a general. act to remove all obstructions as they arise? It is true it gives the power to The secretary to determine what obstructions to the free navigation of The river are unreasonable.

The same principle applies to all the administrative department. 'There must be the exercise of judgment. If the departments were deprived entirely of the exercise of judgment, they would be ineffective to carry into execution the acts of congress. To say that every time an obstruction is placed in a navigable river or that a bridge that, by reason of the enlarged use of the river, has become such an obstruction that it materially interferes with the free navigation of the river, or possibly entirely obstructs it, could not be removed except by a special act of congress or a proceeding in court for that purpose, does not seem to me to be tenable.

The only question that the secretary can decide is:

Is the bridge an unreasonable obstruction to the free navigation of the river? If he believes it is from the knowledge and information he has, then his ordering its removal is a mere administrative act. Whether it is there by legal right or not is a judicial question that must be determined upon a hearing in the courts, as provided for in the act of congress, and neither congress nor the secretary could finally determine that question. If found to be there under a legal right then the government must make compensation before it can be removed, and this right to appeal to the courts as we have said is fully provided for by the act of congress. United States v. Moline (City), 82 Fed. Rep. 592.

But the question in this ease is under the admitted facts: Was there any obstruction in the Ashtabula river to be removed? If as a matter of fact there was no obstruction in the river — and that is admitted as far as this action is concerned — then there was nothing for the secretary to base his order upon. His authority was to order the removal of an obstruction and yet the allegations of the petition as stated by my learned brother, in his very able opinion, clearly shows there was no obstruction and that by a combination between the representatives of the government and the county commissioners under a pretended order of the secretary of war, they, the commissioners, propose, except they are restrained by the taxpayers of the county, to pull down a pier and dredge out the space so occupied by the pier to a depth of twenty-one feet, at a point that was never in the river and therefore could not obstruct the river or navigation upon the river.

As shown by the petition this bridge was built in 1889 by the -county authorities under the direction of the state. Land was purchased by the county on which to place the pier. This land nor the pier was ever within the boundaries of the river or within the harbor line. There is no complaint about the draw or the bridge proper. It is of sufficient height and breadth, but what the order requires is, that the pier, which is concededly upon the county’s own land not within the boundaries of the river, and in no manner obstructs navigation further than a building upon the bank of the river, and entirely without its boundaries, would obstruct navigation, is ordered removed and the spacé dredged out to the depth of twenty-one feet in order to widen the river or straighten it.

The petition further avers that the • commissioners have promised and agreed under this so-called order of the secretary of war to remove this pier east fifty feet, dredge out the space and. further remove the west abutment opposite the pier, which stands on the bank of the river ■at the edge of the water fifty feet east into the river, fill in the intervening space between the bank of the river, and the west abutment and build an entirely new bridge of a different character all at the expense of the county, of $200,000 and all without tendéring any compensation to the county.

This is all conceded by the demurrer. For what purpose is it done ? It is said to straighten the river; that there is an elbow in the river and that the vessels now are so large that they cannot get up the river withr out this is done. Has the secretary of war any authority to require the county of Ashtabula to straighten the river at its own expense, or have the county commissioners any authority to agree with the government to carry out such a requirement? We think not, and that the taxpayers have a right to insist that the commissioners must stand upon their legal rights against such an arbitrary and illegal order, and if, by fraud or from fear, they refuse, that they may by the order of this ■court be required so to do.

It is immaterial what is the language of the order.' These are the averments of the petition which are admitted by the demurrer to be trae.

Under these circumstances the secretary of war under the act of congress, under which-he claims to be acting, has no authority to make •such an order, and to agree with the county commissioners to carry' it into effect in the manner proposed. It would be a fraud upon the county. Tbe commissioners still threaten to proceed in the manner stated, and they should be enjoined from so doing. Had the commissioners stood upon their rights, they could have contested all these questions in the federal courts. If informations were made or indictments found against them and the facts were as admitted by them in this suit, they could not possibly have been convicted; neither would the government be permitted by the federal courts to remove the pier and the bridge for the purpose of straightening the river until it paid the county full compensation for all damages that would result from the proposed improvement. United States v. Moline (City), supra. It is claimed that the act of March 24, 1904 (97 O. L. 53), of our general assembly, confers upon the commissioners authority to act as they propose to do. This act could only authorize the commissioners to act in a legal manner, if it could do that; as it was enacted no doubt for this special case, its constitutionality inight well be doubted. However, that might be, it does not authorize the commissioners to make an illegal and fraudulent agreement and combination with the officers of the government, to spend $200,000 of the people’s money.

BURROWS, J.,

dissenting.

In this action the court of common pleas held, on general demurrer to the petition, that it did not state facts sufficient to entitle the plaintiff to the relief therein demanded.

The circuit court, on error, reverses that judgment and directs the court of common pleas to overrule the demurrer and grant a temporary injunction as prayed for in the petition.

That there may be no mistake as to what the petition contains, a full copy, omitting the caption, is here given:

PETITION.
“The defendants are the duly elected, qualified and acting commissioners of Ashtabula county.
“Your relator is a citizen, resident and taxpayer of Ashtabula county, and brings this action for the benefit of said county and its taxpayers.
“On March 20, 1905, relator as such taxpayer, duly requested the prosecuting attorney of said county, in writing, to bring this action, and he refused to do so.
“The defendants are about to, and unless enjoined, they will construct a new bridge across the Ashtabula river, upon the line of Bridge street at Ashtabula barb'or in the city of Ashtabula, at a cost of two hundred thousand dollars, and ask for bids and enter into a contract for building the same, and issue and sell the bonds of said county in the sum of two hundred thousand dollars and appropriate the proceeds thereof to pay for the construction of said bridge, and levy a tax on the people of said county to provide for the redemption of said bonds and the interest to accrue thereon. They have advertised to sell said bonds and invited bids therefor.
“The defendants have not submitted to the voters of said county, the question as to the policy of building said bridge, and do not intend to do so.
“There has been no casualty requiring the construction of said bridge,' but it is intended to replace the one now in use at said place that is in good condition, repair, and perfectly safe for public travel.
“The defendants claim authority and the right to proceed as aforesaid under an act of the general assembly of the state of Ohio, entitled ‘An act to authorize county commissioners to issue bonds and levy a tax for the purpose of rebuilding, replacing or constructing anew any bridge or bridges condemned or ordered removed by the war department of the United States,’ passed March 24, 1904, and approved March 26, 1904, 97 O. L. 53 (Lan. 4258), and under an order claimed to have been issued by the war department of the United States, notifying the defendants to make certain changes and alterations in the bridge which now crosses the river at said place.
‘ ‘ Said order purports to have -been made by virtue of Sec. 18 of 30 U. S. Stat. at L. 1121, 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, and under the claim that said present bridge is an unreasonable obstruction to the navigation of said river and harbor (which are navigable waterways). Said act does not apply to counties or county commissioners, and confers no authority upon the war department or secretary of war to make the order aforesaid. Said act is only enforceable, as fully appears by its terms, by criminal prosecution, and by conviction and punishment for crime. If said act applies to counties, it contravenes the constitution of the United States, and exceeds the power granted to congress by the constitution, and it is therefore null and void.
“Said order was made arbitrarily, without authority of law, without hearing or evidence, and contrary to the facts. Before its issuance, Dan. R. Kingman, a United States engineer, called the defendants to several conferences, and in May, 1904, to what is claimed to be a final bearing before bim at Cleveland, Obio. No evidence whatever was ■offered at said pretended bearing to tbe effect that tbe present bridge is an unreasonable obstruction to navigation, and nothing whatever was ■offered in favor of tbe issuance of said order, except the statements, not under oath, of representatives of tbe Lake Shore and Michigan Southern Railway Company, and tbe Pennsylvania Company, that tbe proposed change would greatly benefit said railroad corporations, and enhance the value of their dock and river property at said harbor, and give to .said Pennsylvania Company at least fifty feet of additional dock frontage ; and that, if the order were made, said railroad corporations would ■contribute largely to the expense of building said new bridge. Thereupon said engineer stated that the order would be issued, and after-wards, to wit, in June, 1904, an order was issued as aforesaid, but not, however, until after the first application or recommendation of said engineer to the war department for said order had been refused and turned down by that department. All of which fully appears by the records of the office of said engineer at Cleveland, Ohio.
“Your relator informs the court that said railroad corporations own valuable docks and land's available for dock purposes at said harbor that will be greatly .enhanced in value by the proposed change (which change will be hereinafter specifically pointed out),.that said Pennsylvania Company owns docks on the west side of the river just south of and adjacent to said present bridge and will acquire by the proposed change at least fifty feet of additional dock frontage out of what is now the navigable channel of said river, that said United States engineer was induced to cause said order to be issued by the promise of said railroad corporations to contribute largely to the expense of the proposed new bridge, but that said corporations have ever since wholly failed and refused to contribute anything whatever therefor.
“Said present bridge was built by the commissioners of Ashtabula county, in 1889, with the approval of the lake carriers and vessel owners and their associations, has been in operation ever since, is now sound, in good condition, repair, and perfectly' safe for public travel. It is a swing bridge with a 120 foot draw, with its .navigable opening exactly over and substantially the entire width of the present and natural •channel of the river at that point and its center pier, on which the bridge swings, on the east side of the river, entirely east of the established dock and harbor lines of said harbor.
‘ ‘ Said bridge is not an unreasonable obstruction to navigation. The largest boats on the lakes are only fifty-five feet in width and less than 600 feet in length. At the point said bridge crosses there is a bend in the river with its outer curve to the west. If there is any difficulty in passing said bridge by the largest and longest boats it is owing to the shape of the river and not to any fault in the bridge.
“The order aforesaid notifies the defendants to entirely remove said center pier of the present bridge and dredge and excavate at said point to a depth of twenty-one feet below mean lake level, but makes no complaint or order concerning the west abutment of said bridge,
“The defendants propose, intend to, and will, unless enjoined, entirely remove the present bridge and excavate on the east side of the. river where its center pier now is to a depth of twenty-one feet below mean lake level, and build a new bridge of the jack knife or lift pattern with its east abutment in Bridge street (formerly a county road) at least fifty feet east of the established dock and harbor lines of the harbor, ■and about the same distance east of the water line of the river which very nearly coincides with the harbor line at that point, and its west abutment and the street leading thereto extended at least fifty feet out into the present and navigable channel of the river. This will cut off at least fifty feet from the west side of said navigable channel and constitute a serious obstruction to navigation, and will necessitate the ■dredging out and making a new navigable channel for said river east of the present one with its eastern boundary entirely east of and beyond the present eastern harbor and water lines of the river.
“Your relator informs the court that the object sought to be accomplished by said order, and the proposed plans and work of the ■defendants, is to straighten said river by moving its channel at least fifty feet east of the present location,, and permit the said Pennsylvania Company to fill in and reclaim for dock purposes an equal distance out of the west side of the present navigable channel of the river:
“The aforesaid act of the general assembly of the state of Ohio contravenes. ’ ’

Sections 1, 2, 19, 20, Art. 1; Secs. 22, 26, Art. 2; Secs. 5, 7, Art. 10; Secs. 2, 5, 6, Art. 12; Sec. 1, Art. 13 of the constitution- of Ohio, and the fifth and fourteenth amendments to the constitution of the United States. Said act contravenes other provisions of the state and federal constitutions, is void and of no effect, and confers no authority upon the defendants to do the acts intended. At the time said act was passed and ever since there has been no other bridge in the state under the control of county commissioners, claimed to have been condemned or ordered removed by the war department of the United States.

“Wherefore, your relator prays that the defendants be enjoined! from issuing and selling said bonds, and appropriating the proceeds to the building of said bridge, and levying said tax, and entering into contracts for said' purposes, and for such other and further relief as is-proper. ’ ’

This action was commenced on the relation of a taxpayer under favor of Rev. Stat. 1277, 1278 (Lan. 2655, 2656). The matters that may be investigated and enjoined in such proceedings are enumerated in Rev. Stat. 1277 (Lan. 2655), which provides: “The prosecuting-attorneys of the several counties of the state, upon being satisfied that-the funds of the county, or any public moneys in the hands of the county treasurer or belonging to the county, are about to be, or have-been, - misapplied, or that any such public moneys have been illegally-drawn out of, or withheld from, the county treasury, or that a contract-in contravention of the laws of this state has been, or is about to be entered into, or has been or is being executed, or that a contract wqs-procured by fraud or corruption, * # * may apply, by civil action in the name of the state, to a court of competent jurisdiction, to restrain such contemplated misapplication of funds, or the completion of any such-illegal contract not fully completed, * * *.”

Revised Statutes 1278 (Lan. 2656) provides that when the prosecuting attorney for any reason cannot bring the action, or refuses to do soon written request, the action may be instituted by a taxpayer in the name of the state.

An inspection of the petition shows that this action is based upon such allegations therein as charge that the defendants, as county commissioners, are “About to enter into a contract” for the building of a new bridge “in contravention of the laws of this state;” and accordingly, the whole question is whether it appears from the petition that-the proposed action of the commissioners-in contracting for the removal of the present bridge and building a new one, is in contravention of the laws of this state.'

Unquestionably, the authority of county commissioners to build bridges or raise money for that purpose must be conferred by statute, and any attempt on their part to do either in the absence of such authorization would be in contravention of the laws of this state. Prior to 1904 their power to build and repair bridges in their county when the cost did not exceed $10,000 was limited only by their discretion and judgment; but when the cost exceeded that sum, a vote in favor of the project was necessary. This limitation did not apply, however, in cases of casualties to certain important bridges. By the act of March 24, 1904, 97 O. L. 53 (Lan. 4258), county commissioners were authorized in cases therein'specified to remove and rebuild bridges at a cost not exceeding two hundred thousand dollars. This act is as follows:

“An act to authorize county commissioners to issue bonds and levy a tax for the purpose of rebuilding, replacing or constructing anew any bridge or bridges condemned or ordered removed by the war department of the United States.”

“Be it enacted by the general assembly of the state of Ohio:

“Section 1. That the county commissioners of any county having control of any bridge or bridges which have been condemned or ordered removed by the war department of the United States, under authority of law, as an obstruction to navigation, shall have power to remove such bridge or bridges and to rebuild or replace the same or construct a new bridge or bridges over the stream or streams crossed by the bridge or bridges so condemned or ordered removed; and for this purpose such commissioners shall have power to purchase or appropriate property, in the manner provided by law, to widen the channels of such stream or streams.”

It is self-evident that if this is a valid law, and the bridge had been lawfully condemned or ordered removed as provided in said act, the proposed action of the defendants was in pursuance of the laws of this state. The fact that the majority opinions go no further than to doubt its validity does not call for an extended discussion of this question; in as much as it is a settled rule of decision in this state and elsewhere that it is only when the irreconcilability of a legislative enactment with the constitution is clear and free from doubt that courts are warranted in declaring such enactment invalid. This sort of legislation is common in this state and has been from its earliest history. The amount of public money that may be expended by public officials for one public purpose or another, under one set of circumstances or another, has always been determined by the legislature and its competency to make such determination has never been questioned. . Indeed, if this law is not valid, why is not the statute giving authority for large expenditures in cases of casualties to highways and bridges, and all laws making discrimination as to the amounts that may be expended for public purposes under varying circumstances unconstitutional? The many authorities cited by counsel for the defendants and published in connection with the majority opinion fully cover this question.

The power to expend such sum of money for the purposes named in said act is made to depend upon the existence of the following facts: The bridge must be over a navigable waterway of the United States; it must have been condemned or ordered removed by the war department; and, such condemnation or order must be made under authority of law.

The action of the war department contemplated by this act is derived from See. 18 of 30 U. S. Stat. at L. 1121, which is as follows:

“That whenever the secretary of war shall have good reason to believe that any railroad or other bridge now constructed, or which may hereafter be constructed, over any of the navigable waterways of the United States, is an unreasonable obstruction to the free navigation of such waters on account of insufficient height, width of span, or otherwise, or where there is difficulty in passing the draw opening or the draw span of such bridge by rafts, steamboats, or other water craft, it shall be the duty of the said secretary, first giving- the parties reasonable opportunity to be heard, to give notice to the persons or corporations owning or controlling such bridge so to alter the same as to render navigation through or under it reasonably free, easy, and unobstructed and -in giving such notice he shall specify the changes recommended bj' the chief of engineers that are required to be made, and shall prescribe in each case a reasonable time in which to make them. If at the end of such time the alteration has not been made, the secretary of war shall forthwith notify the United States district attorney for the district in which such bridge is situated, to the end that the criminal proceedings-hereinafter mentioned may be taken. If the persons, corporation, or association owning or controlling any railroad or other bridge shall, after receiving notice to that effect, as hereinbefore required, from the-secretary of war, and within the time prescribed by him, wilfully fail or refuse to remove the same or to comply with the lawful order of the secretary of war in the premises, such persons, corporation, or association shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding five thousand dollars, and every month such persons, corporation, or association shall remain in default in respect to the removal or alteration of such bridge, shall be deemed a new offense, and subject the persons, corporation, or association so-offending to the penalties above prescribed: Provided, that in any case arising under the provisions of this section an appeal or writ of error may be taken from the district courts or from the existing circuit courts direct to the Supreme Court either by the United States or by the defendants.”

By the terms of this statute the action of the war department therein authorized is limited to bridges “over the navigable waterways of the United States; ’ ’ and, therefore, at the outset of this discussion, it must be determined whether the bridge in question was over such waterway. That the bridge is over a waterway, navigable for the largest boats on the lakes is asserted in the petition, while the authority of the United States over the same is not denied but is impliedly assumed by its averments. It is therein alleged that the present bridge-was built with the approval of the lake carriers and vessel owners and. other associations, thereby assuming and implying that such associations were interested in the free navigation of this stream and that the-bridge was built so as not to prejudice their interests. At this day it. will hardly be contended that a stream which by itself or in connection with other waters forms a continuous channel through which interstate-commerce is carried on is not a waterway of the United States. It is-stated and reiterated in the majority opinion, as if it were a circumstance-o.f importance, that this harbor and river lie wholly within this state.. The same might be said of all of Labe Erie lying north of Ohio up to’ the Canada line; and all the rivers and'inland lakes of this country outside of the District of Columbia and the territories, lie wholly within one or more of the states. What constitutes a river or other body of water a waterway of the United States, was determined and elucidated by Chief Justice Marshall eighty years ago; and the correctness of his definition and decision has ever since remained unquestioned. In Gibbons v. Ogden, 22 U. S. (9 Wheat.) 1 [6 L. Ed. 23], he says, at page 194:

‘ ‘ Commerce among the states cannot stop at the external boundary line of each state, but may be introduced into the interior.
“It is not intended to say that those words comprehend that commerce which is completely internal, which is carried on between man and man in a state, or between different parts of the same state, and which does not extend to or affect other states. ’ ’ Again, page 195: ‘ ‘ The deep streams which penetrate our country in every direction, pass through the interior of almost every state in the Union, and furnish the-means of exercising this right.” Again, page 196, “This principle is, if possible, still more clear, when applied to commerce ‘among the several states.’ They either join each other, in which case they are separated by a mathematical line, or they are remote from each other, in which ease other states lie between them. What is commerce ‘among’' them; and how is it to be conducted? Can a trading expedition between two adjoining states commence and terminate outside of each?’ And if the trading intercourse be between two states remote from each other, must it not commence in one, terminate in the other, and probably pass through a third? Commerce among the states must, of necessity,, be commerce with the states.” Again, page 197: “The power of congress, then, comprehends navigation within the limits of every state in the Union; so fax' as that navigation may be, in any manner, connected with ‘commerce with foreign nations, or the several states.’ ”

The following are citations from U. S. Digest: “All our waterways are navigable waterways of the United States within the meaning of the acts of congress in contradistinction from navigable waters of the states where they form in their ordinary condition, by themselves or by uniting with other waters, a continuous highway over which commerce is or may be carried on with other states or foreign countries in the customary modes in which such commerce is conducted by water.

“Steamer Daniel Ball v. United States, 77 U. S. (10 Wall.) 557 [19 L. Ed. 999]; The Montello, 78 U. S. (11 Wall.) 411 [20 L. Ed. 191]; The Montello, 87 U. S. (20 Wall.) 430 [22 L. Ed. 391]; Cardwell v. Bridge Co. 113 U. S. 205 [5 Sup. Ct. Rep. 423; 28 L. Ed. 959].”

“The Chicago river and its branches, although entirely within the ¡limits of Illinois, form, in connection with other waters, a continuous channel for commerce among the states, and are therefore navigable waters of the United States, subject to the commercial power of congress.” Escanaba Co. v. Chicago, 107 U. S. 678 [2 Sup. Ct. Rep. 185; 27 L. Ed. 442].

“By ‘navigable waters of the United States’ are meant such as are navigable in fact, and which, by themselves or their connection with other waters, form a continuous channel for commerce with foreign countries or among the states.” Miller v. New York, 109 U. S. 385 [3 Sup. Ct. Rep. 228; 27 L. Ed. 971].

Applying the definition ’ of a waterway of the\ United States, as established by these decisions, to the averments of the petition, and to the facts derived from common knowledge and official documents which show that this river and harbor is a part of a continuous channel and highway of interstate commerce of such importance that the government has expended and is expending large sums of money in improving the same, with what reason can it be said that this bridge is not over a waterway of the United States?

The next question is: Was the bridge condemned or ordered removed by the war department? As both majority opinions practically concede that such order was made by the secretary of war, that question might be passed without further discussion. The petition expressly avers that the commissioners claim the right to build the bridge “under an order claimed to have been issued by the war department of the United States;” that “said order purports to have been made by virtue ■of Sec. 18 of an act of tbe congress of tbe United States;” that, “before its issuance, Dan. R. Kingman, a United States engineer, called tbe defendants to several conferences, and in May, 1904, to what is claimed to have been a final hearing before him at Cleveland, Ohio;” that “nothing whatever was offered in favor of the issuance of said order except the statements, not under oath, of the Lake Shore and Michigan Southern Railway Company and the Pennsylvania Company # * * that the proposed change would greatly benefit said railroad corporations, and that, if the order were made, said railroad corporations would contribute largely to the expense of building said new bridge. Thereupon said engineer stated that the order would be issued, and afterwards, to wit, in June, 1904, an order was issued as aforesaid but not, however, until the first application or recommendation of said engineer to the war department for said order had been refused and turned down by the war department. v

The claim therefore that such order was not issued by the war department can only be maintained by denying the truth of the aver-ments of the petition.

The remaining pertinent question is: Was the order of the war départment made, under authority of law? The grounds upon which it is claimed that it was not are: That section 18 of said act is -unconstitutional : That it attempts to delegate to an executive officer judicial and legislative functions; and that bridges under control of county commissioners are not within the purview of this section.

It is asserted that congress exceeded its power when it invested the secretary of war with the authority and duty of determining whether a bridge was an unreasonable obstruction to navigation, and of directing the changes to be made to obviate the difficulty. The power of congress to adopt sueh means as it deems appropriate to prevent the obstruction >of its navigable waterways is limited only by its discretion and by such restrictions as are imposed by the constitution. This is authoritatively held in the case of Gibbons v. Ogden, supra. At page 196, Chief Justice Marshall in announcing the unanimous opinion of the court says: “We are now arrived at the inquiry, what is this power?

“It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution. These are expressed in plain terms, and do not affect the questions which arise in this case, or which have been discussed at the bar. If, as has always been understood, the sovereignty of congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several states, is vested in. congress as absolutely as it would be in a single government, having in. its constitution the same restrictions on the exercise of the power as are-found in the constitution of the United States. The wisdom and the-discretion of congress, their identity with the people, and the influence that their constituents possess at elections, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often rely solely, in all representative governments. ’ ’

The supremacy of congress is illustrated in Pennsylvania v. Bridge Co. 59 U. S. (18 How.) 421 [15 L. Ed. 435], where it is held that congress may nullify a decree of the Supreme Court by which a bridge had been pronounced a public nuisance and an obstruction to navigation. The only restrictions upon congress in the exercise of this power is found in that part of the fifth amendment to the federal constitution which provides that: “No person shall * * # be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

It is apparent from the whole context of this section that no property is or can be taken until after the right to do so is adjudicated in a court of competent jurisdiction. The rule applicable to such case, as formulated by Mr. Justice Miller, in Davidson v. New Orleans, 96 U. S. 104 [24 L. Ed. 616], is this: “That whenever by the laws of a state, or by state authority, a tax, assessment, servitude, or other burden is imposed upon property for the public use, whether it be for the whole-state or of some limited portion of the community,- and those laws provide for a mode of confirming or contesting the charge thus imposed, in the ordinary courts of justice, with such notice to the person, or such proceeding in regard to the property as is appropriate to the nature of the case, the judgment in such proceedings cannot be said to deprive the owner of his property without due process of law.”

This proposition is quoted and approved by our Supreme Court in State v. Jones, 51 Ohio St. 492, 516 [37 N. E. Rep. 945] and Probasco v. Raine, 50 Ohio St. 378, 392 [34 N. E. Rep. 536]. The secretary of war is authorized to do no more than make a preliminary investigation to-ascertain whether in his opinion a bridge complained of is an unreasonable obstruction to navigation and direct the changes which in his-opinion are necessary; and determine the reasonable time in which the suggested changes shall be made, and notify those having control of the bridge thereof. If the suggested changes are not made within the time specified in the notice it is his duty to notify the United States district attorney of that fact; and there his authority and duties in the matter end. If any further action is taken it must be had in the courts. All assertions that this section gives or attempts to give to the secretary of war power to make final adjudication or compel the removal of 'bridges or the construction of new ones are unwarranted. It cannot be doubted that congress has ample power to provide by appropriate legislation that all obstructions to the free navigation of the waterways of the United States shall be removed. At common law and by the statutes of the several states an obstruction of navigable waters is made a misdemeanor. It 'is usually provided that when the party charged in an indictment is found guilty of maintaining a nuisance its abatement may be ordered by the court. In this act, however, no provision is made for an order of abatement, and the only method that can be pursued to secure the enforcement of the requirements of the secretary is the repeated prosecution and imposition of penalties therein provided. In prosecutions under this section it must be alleged and proven that the defendant “wilfully” neglected or refused to comply with the order of the secretary. It has been held that the word “maliciously” is equivalent if not more than equivalent to “wilfully” in a criminal statute, and that “unlawfully” is not. Charging an act as done wilfully imports that it is done intentionally and in disregard of duty, and not for the purpose of maintaining, in good faith, some legal right. As we have seen, the order of the secretary is ineffective except as a basis for prosecutions, and the assumption that every right of the defendant on trial for failure to comply with the order of the secretary, will not be duly considered and preserved in such prosecution, is an unjust imputation upon the courts.

But there is another and better interpretation of this phrase, “under authority of law” as used by our legislature, which renders the discussion of the validity of the act of congress farfetched and unnecessary. The petition alleges that this act of 1904 was passed March 25, for the purpose of enabling this particular bridge to be built; and whether that is so or not, the purpose of the act was to enable county commissioners in such cases, to avoid the delay incident to raising money by taxation or in pursuance of a vote. Section 18 of the act of congress, was the only act then in force authorizing the secretary of war to condemn bridges or order them to be removed. It is to be presumed that the legislators had knowledge of this section and had reference to it when they used the phrase “under authority of law.” The general assembly assumed, as it had a right to assume, that the secretary of war was duly1 authorized to make such order; and the true intent and meaning of the phrase “under authority of law” as used by the legislature, was that county commissioners should be authorized to act when a bridge was condemned or ordered removed by the war department in pursuance of Sec. 18 of the act of congress passed March 3, 1899.

The logical force of the criticism that section 18 of said act of congress invests the secretary of war with legislative or judicial functions <or both is reduced to small proportions when it is remembered that the scope of his power is limited as has been shown to making an investigation and directing what changes are in his opinion necessary.

But were it otherwise and the power to hear and determine these questions judicially given to the secretary, his exercise of such jurisdiction would be unobjectionable so long as his decision was reviewable in the courts. In State v. Harmon, 31 Ohio St. 250, White, J., in speaking of the power of the committee of the senate to hear and determine an election contest says at page 258: “The power of allotting to the different departments of the government their appropriate functions is a legislative power; and in so far as the distribution has not been made in the constitution, the power to make it is vested in the general assembly, as the depository of the legislative power of the state.”

Again, “Whether power, in a given instance, ought to be assigned to the& judicial department, is ordinarily determinable from the nature of the subject to which the power relates. In many instances, however, it may appropriately be assigned to either of the departments.

“It is said, authority to hear and determine a controversy upon the law and fact is a judicial power.

“That such authority is essential to the exercise of judicial power, is admitted; but it does not follow that the exercise of such authority is necessarily the exercise of judicial power

‘! The authority to ascertain facts, and to apply the law to the facts when ascertained, appertains as well to the other departments of the government as to the judiciary. Judgment and discretion are required to be exercised by all the departments.”

In Probasco v. Raine, 50 Ohio St. 378 [34 N. E. Rep. 536], the first proposition of the syllabus is: “If a statute is constitutional, it is valid, and cannot be set aside by a court, as being against public policy or natural right. There can be no public policy or right in conflict with a constitutional statute.” The question in that case was whether the judicial power could be conferred upon the auditor of the county. In speaking of this subject Burket, J., says, at page 391: “The result to be attained by the laws to be passed under this section,, is equal taxation, but the means by which that end shall be attained,, is left to the judgment and s'ound discretion of the legislature acting, within the powers conferred by the constitution.

“To have equality in taxation, all property must be brought upon the duplicate. Some officer must be authorized and empowered to cause all property to be listed for taxation. Such officer must be paid for his ■ services, either by fees or salary. The legislature has full power under" the constitution to say what officer shall perform such duties, and in what manner he shall be paid.

‘ ‘ It has enacted that such duties shall be performed by the auditor, and that he shall be paid as provided in section 1071. In the opinion of the legislature this is a proper means to att'ain, in part at least, equal taxation. It matters not whether the auditor acts judicially or ministerially in the discharge of his duties. The legislature is free to employ such means, as in its opinion, shall be most effective, whether they be judicial or ministerial or both.

The objection urged in argument that a man cannot be a judge in his own case is a fallacy. The auditor has no case to be judged, but on the contrary, he is the taxing officer before whom other parties are cited to appear and show cause why they should not bear their equal burden of taxation.

“His actions in the premises are subject to review in the courts., and thereby due process of law is had.”

Under the grant of power to regulate commerce among the states an interstate commerce commission was created some years since with the power to hear and determine complaints of unreasonable rates charged by railroads. A bill is now pending in congress by which it is proposed to enlarge the authority of this commission with a view of increasing its efficiency. This has led to a wide discussion in and out of congress of the constitutionality and propriety of conferring such power upon the commission; and it may be safely said that no lawyer,, statesman, publicist, or jurist has as yet doubted the power of congress; to confer this jurisdiction upon the commission, provided adequate; provision is made for the review of its decisions by the courts.

The further and last question made by the petition, and apparently relied upon in the majority opinion, is that the bridges controlled by the officers of the civil divisions of the state are not within the provisions of said section 18 and that the words “persons, corporation or ■ association” do not include county commissioners. No authority is referred to in support of this contention. In the reported cases where; prosecutions have been maintained against county commissioners, this question has not been suggested, although it has been held that no penalty could properly be imposed upon them where they were unable to comply with the order of the war department for want of funds. That ¡the term “persons” used in a statute, when necessary to make its provisions effective and consistent, may include artificial persons, such as bodies politic and corporate, deriving their existence from legislation, as well as natural persons and copartnerships, is decided or illustrated by the following cases: United States v. Fox, 94 U. S. 315, 321 [24 L. Ed. 193]; Pembina Consol. S. M. & M. Co. v. Commonwealth, 125 U. S. 181, 189 [8 Sup. Ct. Rep. 737; 31 L. Ed. 650]; Beaston v. Bank, 37 U. S. (12 Pet.) 102, 134 [9 L. Ed. 1017]; United States v. Amedy, 24 U. S. (11 Wheat.) 392 [6 L. Ed. 502]; Santa Clara Co. v. Railway, 18 Fed. Rep. 385, 404; Krug v. Davis, 87 Ind. 590, 596; State v. Herold, 9 Kan. 194; Forrest v. Henry, 33 Minn. 434, 436 [23 N. W. Rep. 848]; Coddington v. Haven, 8 N. J. Eq. (4 Halst. Ch.) 590; Martin v. State, 24 Tex. 61; Cincinnati Gas Light & C. Co. v. Avondale, 43 O. S. 257 [1 N. E. Rep. 527]; Steam Canal Boat Tempest v. Lucas Co. (Comrs.) 7 Circ. Dec. 137 (13 R. 263); Springfield v. Walker, 42 Ohio St. 543. It is difficult to imagine how more comprehensive terms ' could have been used to include every bridge over a waterway of the United States. That this bridge is within a civil division of the state is an undoubted fact; and so are all bridges in this country in some civil division of a state, except those in the District of Columbia and in the Territories, and most of them are built and controlled by the authorities of such civil divisions. The capacity in which persons may exercise control, whether as agents, trustees, receivers, executors or otherwise ought not to exempt them from the consequences of maintaining a nuisance if they are persons having the power to make the alterations required by the war department. To construe this statute as excluding the bridges under the control of municipalities, trustees of townships, and county commissioners would practically defeat the purpose and beneficial effect of the act.

Here the discussion, so far as it bears upon the questions that are legitimately raised by the demurrer, is brought to a close.

The diversity of opinions in this case is, after all, in respect to matters that have little or no connection with the real issue. Take the question of the right of defendants to compensation for their bridge. •Conceding that they have a legal right to compensation before they <ean be compelled to remove it, how does that question arise? It is not made in the petition. It does not appear that the defendants claim ■compensation or are entitled to any. The discussion of that question is, therefore, irrelevant. It is not quite accurate, however, to say that the act of congress has been held, heretofore, to be unconstitutional, because .it makes no provision for just compensation to parties entitled thereto. It has been held, rather, that the requirements of the secretary could not in such case, be enforced by the imposition of the penalties provided ■by the act; and that the enforcement of it by penalties would be in violation of the constitution. In other words, if the right to compensation is unjustly denied in a given case the owner of the bridge could not be charged with and convicted of the offense of wilfully refusing to make the alterations; for that would be inflicting punishment for insistence upon the constitutional guaranty that private property shall not be taken for public use without just compensation.

Take as an example the able discussion of the abstract proposition that the secretary of war cannot compel nor can congress authorize him to compel, county commissioners to build bridges, dredge channels, ■straighten old channels or make new ones.

What has the correctness of that proposition to do with this case? It is readily conceded that he can no more compel the defendants to do ■any of these things, than he can compel them to commit murder. Nor has he made an attempt to do so. Whatever compulsion may be enforced upon the defendant, under this act, must be brought to bear by the district court of the United States; and if not satisfactorily •applied by that court a direct appeal may be taken to the Supreme •Court.

Right here, may be found the fundamental cause for divergency •of opinions. Let it be admitted, as it must be, that county commission•ers derive all their authority from the statutes of the state, and none from congress or any department of the federal government, and we :get back to the real question to be decided, whether the laws of Ohio authorized the defendants to do the things they are charged with intending to do.

No officers in the state have more ample discretionary power; and in the exercise of their judgment and discretion in matters within their .jurisdiction they are not subject to the dictation or control of courts ■or taxpayers. While they keep within the limits of their jurisdiction they are practically omnipotent. They may remove bridges, piers and .abutments and make any changes whatever so long as they act in good ■faith, and the expenditure does not exceed the statutory limit. Their failure to exercise good judgment and discretion does not authorize a proceeding of this character. If such were the law a large increase of the judicial force of the state might be demanded.

But for the general limitation in expenditures the defendants might have removed the pier, abutment and fenders of this bridge and put up. an entirely new structure without suggestions from the secretary of war. The act of March, 1904, merely enlarged the limit of their expenditures in cases where a bridge over a navigable waterway was condemned or ordered removed by the war department as an obstruction to navigation. Their authority to make this larger expenditure was complete when the order of the secretary in respect to this bridge was made not because they were under compulsion to obey the order but because, the condition had happened, giving them the power to make such expenditure and their attempt thereupon to remove the old bridge with its fenders and pier and put in a new one was strictly within the express authority conferred by law. If this position is correct, then, the claim that the defendants were intending to do more than was suggested by the secretary is also irrelevant. The pertinent inquiry is, were they intending to do more than they had authority to do under the laws, of Ohio. If they were not, how could they be enjoined in this proceeding on the ground that their proposed action was in contravention of' law?

The published opinion of my brother Cook is like a two-edged sword. It assaults the main fabric of thg elaborate opinion of our distinguished associate, with intent to destroy, and then reaches the. conclusion that the demurrer should be overruled on other, and possibly less tenable grounds.

It asserts that the demurrer admits, that the bridge is no obstruction to the free navigation of the river, and hence “there was nothing for the secretary to base his order upon. ’ ’ This- is a clear misapprehension of the contents of the petition. The petition alleges, “said bridge' is not an unreasonable obstruction to navigation,” thereby implying-that it is some obstruction. It also avers, “if there is any difficulty in passing said bridge by the largest and longest boats, it is owing to the shape of the river and not to any fault in the bridge.” This makes the-implication clearer that navigation is impeded and difficult at this point. These allegations fall far short of making good the assertion that “the-allegations of the petition show there was no obstruction.” The unsoundness of an argument based upon such grounds is apparent, since it is immaterial what the petition declares in that respect. The authority of the commissioners under the statute is not made to depend upon the justness or propriety of the order of the war department, but solely on the fact that it is made.

The invalidity of the order of the secretary of war is asserted on the ground that he undertakes to direct the removal of the center pier which stands on land purchased by the county and entirely outside the bounds of the river. The petition states that the center pier is on the east side of the river, “and entirely east of the established dock and harbor lines of said harbor,” and that the bridge opening is ‘‘exactly over and substantially the entire width of the present and natural channel of the river.”

These statements may be literally true and the pier yet stand within the bounds of the river. The reasonable inference from these guarded statements of the petition is, that it does. A portion of the order of the secretary of war has been introduced into the majority opinion and from that we learn that, “the existence of the center pier and its fender in the river,” is an obstruction to its free navigation,. Although the order of the secretary declares they were so placed, the petition maintains a discreet silence on that point. The fenders consist of piling so driven as to protect the bridge when open against injury from passing boats. The petition says, “at the point said bridge crosses there is a bend in the river with its curve to the west. From this statement there must be a bend of the river to the east both above and below the center pier, which would make it impossible for both ends of this straight bridge, when open, to coincide with the curvature of the stream. One end of it must necessarily lie to some extent over the river, and be protected in that position by fenders. The order of the secretary is that the opening shall be 140 feet between the fenders; thereby requiring the removal of the center pier more than twenty feet to the east, by reason of the bend in the stream; and thereby the pier and fenders would become useless obstructions, which the commissioners placed there and which they seem willing to remove. Whether the value of the piles and the stone in the pier would be more or less than the cost of their removal and clearing out the channel where they stand to the depth of the other parts of the channel is not shown.

If the commissioners chose to carry the center pier further to the east and thereby increase the length of the draw span, or chose to make a new bridge of the jack-knife or lift pattern, as surmised and alleged, this would not contravene any law of the state, as the form and pattern of bridges and the location of piers and abutments are matters resting in the discretion of the commissioners. Besides, the act of 1904 expressly confers authority in such eases to purchase or appropriate land to widen such stream or streams.

The charge that the commissioners entered into an agreement, collusive or otherwise, with the secretary of war in respect to removing or rebuilding this bridge is not supported by any allegation of the petition, nor was it hinted at in the argument of the case.

These suggestions as to the action of the secretary are made for the purpose of attempting to show that his order was neither arbitrary, illegal, nor unreasonable. Stripped of all irrelevant and collateral matters which have no proper place in the petition or in this discussion, the material facts stated in the petition are: that some seventeen years ago this bridge was built at a sharp curve in the river with a draw span sufficient to enable the ordinary vessels of that day to pass in safety; that since then the size of vessels has been greatly increased, until now it is well nigh impossible to warp them through the draw opening around the sharp curve; that upon the complaint of the railroad companies having extensive docks above the bridge, and upon their application and representations the war department ordered certain alterations and. changes to be made of which due notice was given to the commissioners; that said alterations and changes required the removal of the entire bridge structure, including the fenders and central pier, and the dredging of the channel at that point to the depth of twenty-one feet; and that in pursuance of said notice and the authority conferred upon them by the act of March, 1904, the defendants as county commissioners were proceeding to consummate said alterations and changes, without submitting the policy of the improvement to a vote of the people. The substantial grounds relied upon in the hearing of the case were, that said act of the legislature was unconstitutional and that said act of congress did not apply to county commissioners.

No member of this court holds said act of the legislature to be unconstitutional ; and only one member, if any, holds that the act of congress does not apply to county commissioners. Section 18 of the act of congress which has been drawn in question, is held by the majority of the court to be constitutional; and yet the majority of the court hold that the commissioners were acting in contravention of law.

It is to be regretted that in reaching this conclusion it was found necessary to condemn an act of congress, criticise an act of the general assembly of Ohio, condemn the decisions of the federal courts, condemn the action of the secretary of war, impute dishonest motives to the United States engineers, charge the county commissioners with' fraud and collusion, as also the railroad companies, and impeach the intelligence of the counsel for the defendants. In justice to the attorneys it •should be said that they were not guilty of the imputed absurdity of -claiming that this was not a county bridge. Neither the defendants, the 'United States officers, nor the railroad companies owning docks above "the bridge were shown to have been actuated, in what they did, by any baser motive than an honest desire to protect and improve the navigable' channels of commerce. The serious consequences of this decision to the •defendants and the public has induced this somewhat protracted dissenting opinion and the discussion of many irrelevant matters.

By the judgment in this case the execution of the laws of the United States is obstructed and temporarily thwarted, a necessary improvement upon which great public interests depend is delayed, and the ■defendants placed in a double jeopardy from which their escape, may be problematic whatever course they pursue; and all this is done not in behalf of the enforcement of salutary .laws according to their manifest letter and spirit, but against their proper enforcement, although the •same have received, for more than half a century, either directly, or by analogy and upon principle, the sanction of the highest judicial tribunals in the land.

For these reasons I am forced to dissent from the judgment entered in this cause.