Statement of the Case.

Whereupon, and on April 6, 1881, the following resolutions were passed by the Navigation Company, notice of which was given to the Secretary of War:

"Whereas Congress has made an appropriation for the commencement of the building of lock and dam number eight in the Monongahela River, the payment of which appropriation is made to depend upon the Secretary of War being satisfied of the bona fide intention of this company to construct lock and dam number seven, and of their financial ability to complete the same; and

"Whereas Col. Merrill, of the United States engineers, in charge of the government improvement of the Monongahela River, has requested this company to furnish the Secretary of War with satisfactory assurances in relation thereto: Therefore

"Resolved, That it is the bona fide purpose and intention of this company to construct lock and dam number seven in the Monongahela River in the manner and at the time required of them by the acts of assembly of the State of Pennsylvania that is to say, so to complete said lock and dam number seven that the same shall be ready for use as soon as the requisite locks and dams above lock and dam number seven, constructed or about to be constructed by the Federal Government, shall also be finished and ready for use, so as to complete the slack water of said river from Pittsburgh, Pennsylvania, to Morgantown, Virginia.

"Resolved, That the secretary of this company be directed to forward a copy of the foregoing resolution, together with copies of the company's annual report showing the intention. of the company and their ability to complete this work, to Col. Merrill and also to the Secretary of War."

And on May 4, 1881, Col. Merrill addressed the following letter to the President of the Navigation Company :

"SIR: I have just received official notice from the Secretary of War, through the Chief of Engineers, that the resolution and documents relative to the construction of lock and dam No. 7, on the Monongahela River, forwarded to this

Statement of the Case.

office by your company in April last, (duplicate sent to the honorable Secretary of War,) have been considered as fully meeting the requirements of the proviso in the last appropriation for the improvement of the above-named river, prohibiting the expenditure of the money appropriated, until the Monongahela Navigation Company shall have undertaken in good faith the building of lock and dam No. 7 at Jacob's Creek, and until said company shall, in a manner satisfactory to the Secretary of War, give assurance of their ability and purpose to complete the same.""

Thereafter, and in 1882, lock and dam number seven were commenced and completed in 1884. In the course of the trial the company called a witness, and offered to prove by him and other witnesses:

"That the paid-up capital stock of the Monongahela Navigation Company consists of thirty-two thousand, six hundred and thirty-nine shares of fifty dollars; that dividends have been declared on the stock for a number of years at the rate of twelve per cent per annum.

"That the tolls received by the said company for the use of its works, including lock and dam No. 7, have averaged for several years past not less than $240,000; that the market value of the stock was at the time of the inception of these proceedings about $100 per share; that the money value of their entire works and franchise is not less than $4,000,000; that the actual toll receipts of lock and dam No. 7 for several years past have exceeded $2800 per annum, and that a very large increase of such toll receipts at lock and dam No. 7 will certainly take place in a short time by the development of coal mines naturally tributary to said lock and dam.

"That by the construction and maintenance of the company's works a permanent and reliable public highway has been created on which a large and increasing carriage of coal and general merchandise takes place, and that permanent navigation for the largest vessel and steamboat now exists from the city of Pittsburgh, Pennsylvania, to or near the line between the States of Pennsylvania and West Virginia.

"That in view of the present and prospective tolls receivable

Counsel for Appellant.

at lock and dam No. 7, the present value of said lock and dam No. 7 is not less than $450,000, said value being predicated upon said present and prospective tolls; that said lock and dam No. 7 are a portion of said company's works, which consist of seven dams, each furnished with a lock or locks.

"That the navigation which is sought by these proceedings. to be made free was mainly created and made possible at all seasons by the construction and maintenance of the company's works.

"That a large portion of the tolls received by the company is charged upon merchandise and articles carried between points of shipment and delivery entirely within the State of Pennsylvania, and constituting internal commerce of said State, and that a portion of the tolls collectible at lock and dam No. 7, for the use of said lock and dam, is chargeable for merchandise, goods and passengers carried between points of shipment and delivery in the State of Pennsylvania, the transportation being wholly within the State as to said portion.

"To which offer of testimony counsel for the United States objected, for the reason that the same was incompetent and irrelevant; whereupon the court sustained the objection and rejected the evidence."

The result of the trial was a finding by the court that the value of the lock and dam number seven was $209,000,"not considering or estimating in this decree the franchise of this company to collect tolls." Such amount was the sum adjudged and decreed to be paid by the United States to the Navigation Company for the property condemned. The company brought the case to this court by both writ of error and appeal.

Mr. Wayne McVeagh and Mr. Johns McCleave, (with whom was Mr. Thomas D. Carnahan on the brief,) for appellant and plaintiff in error, cited Cardwell v. American Bridge Co., 113 U. S. 205; Willson v. Blackbird Creek Marsh Co., 2 Pet. 245; Pound v. Turck, 95 U. S. 459; Huse v. Glover, 119 U. S. 543; Sands v. Manistee River Improvement Co., 123 U. S. 288; Charles River Bridge v. Warren Bridge, 11 Pet. 420; Pennsylvania Railroad v. Balt. & Ohio Railroad, 60

Argument for Appellees.

Maryland, 263; Commonwealth v. Pittsburgh & Connellsville Railroad, 58 Penn. St. 26; Isom v. Miss. Central Railroad, 36 Mississippi, 300; United States v. Great Falls Mfg. Co., 112 U. S. 645; Bridge Company v. United States, 105 U. S. 470; County of Mobile v. Kimball, 102 U. S. 691; Packet Co. v. Keokuk, 95 U. S. 80; Montgomery County v. Schuylkill Bridge Co., 110 Penn. St. 54.

Mr. Attorney General and Mr. Solicitor General for appellees and defendants in error.

The principal question at bar is whether the proviso in the River and Harbor Act of August 11, 1888, is valid. This question was raised in various forms upon the trial, the contention of the appellant being that the franchise is no less property than the material structure of the lock and dam, and that therefore the same cannot be taken or destroyed by the government, directly or indirectly, without compensation. On behalf of the government, on the contrary, it was claimed by the district attorney, and held by the court, that the right of the United States to regulate and absolutely control the navigation of the Monongahela River was supreme and paramount; that it was not within the power of the State to grant to any corporation or persons a franchise in, or connected with, the navigation of said river which was not wholly subordinate to the rights of the United States; that any franchise granted by the State had, as matter of law, necessarily within it, as a condition, that it might be terminated at any time by an act of the United States, and that therefore no injury entitled to compensation could accrue to any party claiming such franchise, by reason of the exercise of such paramount right by the United States.

I. Has the appellant, as against the United States, a vested property in the franchise to maintain and take toll for the use of this lock and dam? By clause 3, section 8, article 1, of the Constitution, there is vested in Congress power "to regulate commerce with foreign nations, and among the several States, and with the Indian tribes." Under this grant

Argument for Appellees.

the authority of Congress to control the navigation of all streams which are highways of commerce between the States has been uniformly asserted by Congress and never successfully denied in the courts. It is true there are numerous decisions upholding the exercise of a regulating power over such channels of commerce by the States, but in every case it has been admitted that such exercise could be upheld only because and so long as Congress failed to assert its jurisdiction. It is presumed that it will not be questioned by appellants that the Monongahela River, at the point under discussion, was a navigable channel of interstate commerce. Certainly such a contention could not be successfully maintained. Escanaba Company v. Chicago, 107 U. S. 678; Barney v. Keokuk, 94 U. S. 324; The Montello, 20 Wall. 430; The Genesee Chief, 12 How. 443; Bridge Co. v. United States, 105 U. S. 470; Gilman v. Philadelphia, 3 Wall. 713; Willamette Bridge Co. v. Hatch, 125 U. S. 1.

In Bridge Co. v. United States, Chief Justice Waite, delivering the opinion of the court, said (at page 479): "the power of Congress in respect to legislation for the preservation of interstate commerce is just as free from State interference as any other subject within the sphere of its legislative authority. The action of Congress is supreme, and overrides all that the States can do. Where, therefore, Congress in a proper way declares a bridge across a navigable river of the United States to be an unlawful structure, no legislation of a State can make it lawful. Those who act on state authority alone necessarily assume all the risks of legitimate Congressional interference." This case is instructive, not only in the clearness of the opinion of the Chief Justice, speaking for the majority of the court, but because the dissenting opinions bring out with more distinctness the points decided.

In The Willamette Bridge Case, the late Mr. Justice Bradley, in the opinion of the court, said (p. 12): "We do not doubt that Congress, if it saw fit, could thus assume the care of said streams, in the interest of foreign and interstate commerce; we only say that, in our opinion, it has not done so by the clause in question. And although, until Congress acts, the

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