ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF PENNSYLVANIA.
MR. JUSTICE HARLAN delivered the opinion of the court.
This is a criminal information by the United States under § 18 of the River and Harbor Act of March 3d, 1899, against the President, Managers and Company of the Monongahela Bridge Company, a Pennsylvania corporation.
That section 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 charges recommended by 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 by 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." 30 Stat. 1121, 1153, c. 425.
The jury returned a verdict of guilty and a motion in arrest of judgment was made upon various grounds, the principal one being that the section of the above act of 1899 was unconstitutional, null and void. That motion was denied, and a motion for new trial having been overruled, the defendant was adjudged to pay to the United States a fine of $1,000 and the costs of prosecution. From that judgment the case comes directly to this court under the authority of the proviso in the above act. Section 18.
It is essential to a clear understanding of the questions raised by the Bridge Company that we state certain facts disclosed by the record.
The Bridge Company was incorporated under an act passed by the General Assembly of Pennsylvania in 1830; and in 1833, by authority of that Commonwealth, it constructed the bridge in question over the Monongahela River. The structure is known as the Brownsville Bridge between the towns of West Brownsville and Bridgeport. The charter of the company provided, among other things, that "the erection of said bridge shall not obstruct the navigation of said river so as to endanger the passage of rafts, steamboats or other water craft." Penn. Laws, 1829-30, p. 105.
On the twenty-ninth of April, 1903, the Secretary of War, Mr. Root, was petitioned by numerous companies and individuals to have an investigation made of the bridge "as to its obstruction of navigation," and if it was found to be an obstruction of that character, "to have the means provided to compel it to be raised or equipped in such a way to relieve river people from the obstruction, making the height necessary to allow free navigation." The petition proceeded: "The coal in pools one, two, three and four below Brownsville has been practically exhausted and the Pittsburg district will, at no distant date, be forced to get its supply above Brownsville in the Fifth Pool. The petitioners recognize how impossible it will be to build or improve lock No. 3 unless the elevation of the Brownsville bridge be made at once." This petition was
referred by the Chief of Engineers to Major Sibert of the Corps of Engineers for investigation and report. The latter officer reported, among other facts, that ". . . 4. The height of this bridge is such that the average of the boats engaged in interstate commerce between the States referred to above [Pennsylvania and West Virginia] are prevented from passing under the bridge at a stage of water materially less than that which floods the walls of the locks of the Monongahela River. 5. A bridge that prevents the use of the locks owned by the Government of the United States until the same are placed out of service by means of high water is, in the opinion of this office, an unreasonable obstruction to navigation. . . . 7. This bridge is an old covered wooden bridge, constructed some time between 1830 and 1840. 8. In the opinion of this office this bridge is one that certainly requires action under section 18, River and Harbor Act of March 3, 1899. 9. It is therefore respectfully recommended that it be proceeded against in the manner specified under the law referred to above, both on account of insufficient height and length of span, and that, in the notice for a hearing in the case of this bridge the changes proposed by such as to give a least clearance 52 feet under a channel span of 400 feet wide; the length of side spans to be determined from the developments at the hearing. It is ...