§ 145. Bridge Corporation-Bridges-Commerce-Navigable Waters Wholly Within State Power of State as to Toll Bridges-Railroad Toll Bridge.—Although navigable waters of the United States lie wholly within a State, Congress in the exercise of its power under the commerce clause of the Constitution may exercise control to the extent necessary to protect, preserve and improve their free navigation; but until that body acts, the State has plenary authority over bridges across them, and there is nothing in the ordinance of July 13, 1787, or in the subsequent legislation of Congress, that precludes the State from exercising that authority.53 But the several States have the power to establish and regulate bridges, and the rates of toll thereon, whether within one State, or between two adjoining States, subject to the paramount authority of Congress over interstate commerce.54 It is determined, however, that under existing legislation, the right to erect a structure in a navigable water of the United States, wholly within the limits of a State, depends upon the concurrent or joint assent of the state and national governments; and that neither the act of Congress of March 3, 1899, c. 425, nor any previous act relating to the erection of structures in the navigable waters of the United States, manifested any purpose on the part of Congress to assert the power to invest private persons with power to erect such structures within a terson v. Wollmann, 5 N. Dak. 608, 67 N. W. 1040, 33 L. R. A. 536. Examine Conway v. Taylor, 1 Black. (66 U. S.) 603, 17 L. ed. 191; Mills v. St. Clair County, 8 How. (49 U. S.) 569, 12 L. ed. 1201; Carroll v. Campbell, 108 Mo. 550; Mayor of New York v. Starin, 106 N. Y. 1, 27 Wkly. Dig. 124, 8 N. Y. St. R. 655; Evans v. Hughes County, 3 S. Dak. 580. "The ownership of the soil does not necessarily entitle the owner to a public ferry franchise. He can exercise no such privilege until the right to do so is conferred by the proper authority. This court said, in Murray v. Minefee, 20 Ark. 561, that'a ferry franchise is the creature of sovereign power, and no one can exercise it without the consent of the State.' This is too well settled by the authorities to admit of discussion." Bell v. Clegg, 25 Ark. 26, 28, per Compton, J. 53 Escanaba Co. v. Chicago, 107 U. S. 678, 2 Sup. Ct. 185, 27 L. ed. 442. See cases cited in first note to § 127, herein. 54 Covington & Cincinnati Bridge Co. v. Kentucky, 154 U. S. 204, 38 L. ed. 962, 14 Sup. Ct. 1087. navigable water of the United States, wholly within the territorial limits of a State, without regard to the wishes of the State upon the subject.55 Again, the provision in the act admitting California, "that all the navigable waters within the said State shall be common highways and forever free, as well to the inhabitants to said State, as to the citizens of the United States, without any tax, impost, or duty therefor," does not deprive the State of the power possessed by other States, in the absence of legislation by Congress, to authorize the erection of bridges over navigable waters within the State.56 In determining the question whether a bridge may be erected over one of its own tidal and navigable streams, it is for the municipal power to weigh and balance against each other the considerations which belong to the subject-the obstruction of navigation on the one hand, and the advantage to commerce on the other-and to decide which shall be preferred, and how far one shall be made subservient to the other. And if such erection shall be authorized in good faith, not covertly and for an unconstitutional purpose, the Federal courts are not bound to enjoin it. Congress may, however, interpose whenever it shall be deemed necessary by either general or special laws. It may regulate all bridges over navigable waters, remove offending bridges, and punish those who shall thereafter erect them. Within the sphere of their authority, both the legislative and judicial power of the nation are supreme. Annunciating these principles on the one hand and on the other, the court refused to enjoin, at the instance of a riparian owner, to whom the injury would be consequential only, a bridge about to be built, under the authority of the State of Pennsylvania, by the city of Philadelphia over the River Schuylkill, a small river-tidal and navigable, however, and on which a great commerce in coal was carried on by barges-which river was wholly within the State of Pennsylvania, and ran through the corporate limits of the city authorized to erect the bridge; "Cummings v. Chicago, 188 U. 113 U. S. 205, 28 L. ed. 959, 5 Sup. 8. 410, 23 Sup. Ct. 472, 47 L. ed. 525. Ct. 423. "Cardwell v. American Bridge Co., on both sides of which municipal authority was exercised on one as much as on the other; the bridge being a matter of great public convenience every way, and another bridge, just like it, having been erected and in use for many years, over the same stream, about 500 yards above.57 Authority to grant the franchise for establishing and maintaining a toll bridge over a river where it crosses a public highway in a State, is vested solely in the legislature, and may be exercised by it or committed to such agencies as it may select.58 The legislature has power to create a franchise to construct toll bridges in general for public use within the State, and this term may include railroad toll bridges where the term "bridge" has been for years construed by the courts to include railroad bridges.50 It has been decided in Georgia that the right to receive tolls for the transportation of travelers and others across a river on a public highway is a franchise which belongs to the people collectively. "A grant of this franchise from the public, in some form, is, therefore, necessary to enable an individual to establish and maintain a toll bridge for public travel. The legislature of the State alone has authority to make such a grant. It may exercise this authority by direct legislation, or through agencies duly established." And where the constitution of a State authorizes the legislature to provide for the construction of a bridge over navigable water it is thereby empowered to regulate such construction and management and it may also delegate such authority.62 60 61 § 146. Pier Erected Without Authority in Navigable Water-Unlawful Structure-Owner's Liability.-A pier erected in the navigable water of the Mississippi River for the sole use of the riparian owner, as part of a boom for saw-logs, 57 Gilman v. Philadelphia, 3 Wall. (70 U. S.) 713, 18 L. ed. 96. * Young v. Harrison, 6 Ga. 130. 58 Wright v. Nagle, 101 U. S. 791, 794, 25 L. ed. 921, per Waite, C. J. 25 L. ed. 921. 5 Southern Illinois & Missouri Bridge Co. v. Stone, 174 Mo. 1, 63 L. R. A. 301, 73 S. W. 453. 62 Schinzel v. Best, 92 N. Y. Supp. 754, 45 Misc. 455, aff'g 96 N. Y. Supp. 1145, 109 App. Div. 917. without license or authority of any kind, except such as may arise from his ownership of the adjacent shore, is an unlawful structure, and the owner is liable for the sinking of a barge run against it in the night. Such a structure differs very materially from wharves, piers, and others of like character, made to facilitate and aid navigation, and generally regulated by city or town ordinances, or by statutes of the State, or other competent authority. They also have a very different standing in the courts from piers built for railroad bridges across navigable streams, which are authorized by acts of Congress or statutes of the States. But land under navigable waters may be granted, even against the owner of the upland, for the purpose of promoting the State's commerce.64 63 Atlee v. Packet Co., 21 Wall. (88 U. S.) 389, 22 L. ed. 619, cited in Prosser v. Northern Pacific R. Co., 152 U. S. 59, 64, 38 L. ed. 353, 14 Sup. Ct. which holds that a railroad corporation, which has laid out, constructed and maintained its railroad for a distance along the shore of a harbor, below high water mark, claiming under its charter the right to do so, and the ownership of adjacent lands under tide waters of the harbor, cannot maintain a bill in equity to restrain a board of commissioners from establishing, pur suant to the statutes of the State, a general system of harbor lines in the harbor, and from filing a plan thereof. Also cited in Shively v. Bowlby, 152 U. S. 1, 41, 14 Sup, Ct. 548, 38 L. ed. 331, which case considers the question of title to tidal lands, distinguishes the common law and American rule, the status of territories in this connection, and asserts that no one can erect a building or a wharf upon such lands without license. De Lancey v. Hawkins, 49 N. Y. Supp. 469, 23 App. Div. 8, aff'g 163 N. Y. 587, 57 N. E. 1108. CHAPTER X. DELEGATION OF POWER-GENERALLY. § 147. Delegation of Power-Dis- § 148. Grant of Franchise May Be tinction Between Power to Made Through Lawful Del egated Agency. 149. Delegation of Power-Police Regulations-Generally. 150. Delegation of Power of Taxation. § 147. Delegation of Power-Distinction Between Power to Make Laws and Discretion as to Their Execution or Administration-Power to Regulate.-A distinction exists between a delegation of power to fix or make a law, which involves a discretion as to what the law shall be, and employing an agency which is empowered to exercise a discretion in determining when the law as enacted shall be enforced, or to determine questions of fact essential to the application of the law; the power to legislate which is vested in the State cannot be delegated; the administrative duties in carrying out legislative powers may be delegated.' The State has power to regulate public service corporations, or the conduct of a business affected with a public interest, and to fix and determine, 1 United States v. Union Bridge former involves legislative, the latter Co., 143 Fed. 377; People v. Grand administrative discretion. The true Trunk Ry. Co., 232 Ill. 292, 297, 83 distinction between delegation of N. E. 839, per Carter, J., quoting power to make law and delegation of Sutherland on Stat. Construction, power to administer law, is this: the p. 611. former contemplates exercise of discretion as to what the law shall be, the other, exercise of discretion in the administration of the law. State ex rel. Milwaukee Medical College v. Chittenden, 127 Wis. 468, 10 N. W. 500. Authority which by the Constitution is vested in the legislature, is the power to make the law. It may be exercised, leaving in the particular instance to some agency the duty of determining questions of fact essential to the application thereof; the |