State ex rel. Harper v. Commissioners of Ashtabula Co.

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. — 214 — 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 — 215 — 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. — 216 — 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,. — 217 — 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 — 218 — 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 — 219 — 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 — 220 — .-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 — 221 — 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 — 222 — ■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 — 223 — 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. — 224 — 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. — 225 — 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 — 226 — 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,. — 227 — 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 — 228 — 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. — 229 — 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.