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CHAPTER XI.

DELEGATION OF POWER BY CONGRESS.

§ 151. Delegation to the President. § 154. Delegation to American Rail152. Delegation to Secretary of

War-Bridges.

153. Delegation of Power to Interstate Commerce Commission.

way Association.

155. Delegation of Power to De

termine Compensation Un

der Right of Eminent Domain Exercised by United States.

§ 151. Delegation to the President.-Congress cannot, under the Constitution delegate its legislative power to the President, although other powers not legislative in character may be conferred upon him.1 So, it is declared that: "While it is undoubtedly true that legislative power cannot be delegated to the courts or to the executive, there are some exceptions to the rule under which it is held that Congress may leave to the President the power of determining the time when or exi

1 Field v. Clark, 143 U. S. 649, 36 ally transfers legislative power to L. ed. 294, 12 Sup. Ct. 495. [In this the president (Fuller, C. J., and case it is also held that the authority Lamar, J., dissenting); but that even conferred upon the president by § 3 if it were it does not follow that other of the act of October 1, 1890, to re- parts of the act imposing duties upon duce the revenue and equalize duties imported articles, are inoperative.] on imports, and for other purposes, Cited and considered in Union Bridge 26 Stat., c. 1244, pp. 567, 612, to Co. v. United States, 204 U. S. 365, suspend by proclamation the free in- 379, 385, 51 L. ed. 523, 27 Sup. Ct. troduction of sugar, molasses, coffee, tea and hides, when he is satisfied that any country producing such articles imposes duties or other exactions upon the agricultural or other products of the United States, which he may deem to be reciprocally unequal or unreasonable, is not open to the objection that it unconstitution

-, aff'g 143 Fed. 377. Approved in Butterfield v. Stranahan, 192 U. S. 470, 24 Sup. Ct. 349, 48 L. ed. 252. Cited in Rider v. United States, 178 U. S. 250, 258, 44 L. ed. 1060, 20 Sup. Ct. 480. Cited and considered in United States v. Dastervignes, 118 Fed. 190, 201. Cited in United States v. Maid, 116 Fed. 650, 653.

gency upon the happening of which a certain act shall take effect."

2

§ 152. Delegation to Secretary of War-Bridges.3-Under its power to regulate commerce, and to make all laws which shall be necessary and proper for carrying into execution such power, Congress is authorized to determine what constitutes an unreasonable obstruction to navigation and to control and regulate navigation. Such power being constitutionally vested in Congress it is without limitation as to the means or manner in which it shall be done, and it would seem that it has the right to employ every agency necessary to the due exercise of such authority, so that, although the power to legislate is vested in Congress alone, the administrative duties in carrying out legislative powers may be delegated, and an act of Congress, which does not delegate to the Secretary of War any power to fix or make the law, but only confers on such secretary authority to determine when a law, enacted by Congress concerning obstructions by bridges to navigable waters, shall be enforced, does not unconstitutionally operate as taking property of a bridge company, whose bridge constitutes such an obstruction, for public use without due compensation, nor is it unconstitutional as being a delegation of legislative or judicial power, especially so where notice is required to be given to the parties interested, and a party who considers himself aggrieved has the right of appeal, or a writ of error, to the court of highest resort.4 Under an early de

2 St. Louis Consolidated Coal Co. v. Illinois, 185 U. S. 203, 210, 46 L. ed. 872, 22 Sup. Ct. 616, per Brown, J., in discussing question of delegation of power to mining inspector and exercise by him of discretion, citing The Aurora, 7 Cranch (11 U. S.), 382, 3 L. ed. 378; Field v. Clark, 143 U. S. 649, 36 L. ed. 294, 12 Sup. Ct. 601.

Co., 143 Fed. 377, citing, considering or quoting from State of Pennsylvania v. Wheeling & Belmont Bridge Co. (Wheeling Bridge Case), 18 How. (59 U. S.) 421, 425, 15 L. ed. 435; South Carolina v. Georgia, 93 U. S. 13, 23 L. ed. 969; Gray v. Chicago, 10 Wall. (77 U. S.) 454, 19 L. ed. 969; Miller v. New York, 109 U. S. 393, 3 Sup. Ct. 232, 27 L. ed. 971; Gibbons v. Ogden, 9 Wheat.

'See § 127, herein. United States v. Union Bridge (22 U. S.) 1, 6 L. ed. 23; Gilman v.

cision it is held that an act of Congress delegating to the Secretary of War the power to declare a bridge an obstruction to navigation and to require it to be changed, remodeled or rebuilt, is unconstitutional. But the later enactment of 1899 giving similar powers is held not unconstitutional as delegating legislative or judicial power to the Secretary of War, as the power granted is administrative, to be enforced by a judicial proceeding in court where the legality of his action could be reviewed. So in another case, in the Supreme Court, it is

Philadelphia, 3 Wall. (70 U. S.) 713, 18 L. ed. 96; United States v. Moline (D. C.), 82 Fed. 592; E. A. Chatfield Co. v. City of New Haven (C. C.), 110 Fed. 792; Fletcher v. Peck, 6 Cranch (10 U. S.), 126, 3 L. ed. 162; Willson v. Blackbird Creek Marsh Co., 2 Pet. (27 U. S.) 245, 7 L. ed. 412; Williamette Iron Bridge Co. v. Hatch, 125 U. S. 1, 8 Sup. Ct. 811, 31 L. ed. 629; Escanaba Co. v. Chicago, 107 U. S. 683, 2 Sup. Ct. 185, 27 L. ed. 442; Pound v. Turck, 95 U. S. 459, 24 L. ed. 525; Cardwell v. American Bridge Co., 113 U. S. 205, 5 Sup. Ct. 423, 28 L. ed. 959; Field v. Clark, 143 U. S. 649, 12 Sup. Ct. 495, 36 L. ed. 294; Cohn v. United States, 152 U. S. 212, 14 Sup. Ct. 513, 38 L. ed. 415; Bushnel v. Leland, 164 U. S. 684, 17 Sup. Ct. 209, 41 L. ed. 598; Lake Shore & Michigan Southern Ry. Co. v. Ohio, 165 U. S. 365, 17 Sup. Ct. 357, 41 L. ed. 747; United States v. Ormsbee (D. C.), 74 Fed. 207; Dastervignes v. United States, 122 Fed. 35, 58 C. C. A. 346, and distinguishing Monongahela Nav. Co. v. United States, 148 U. S. 312, 13 Sup. Ct. 622, 37 L. ed. 463. Principal case is aff'd in Union Bridge v. United States, 204 U. S. 364, 51 L. ed. 523, 27 Sup. Ct. 367. In the "statement" of this case it is said: "Legislation similar in its general

character can be found in River and Harbor Acts passed at previous sessions of Congress. Act 1884, 23 Stat. 123, 148, c. 229; act of April 11th, 1888, 25 Stat. 400, 424, 425, c. 860, §§ 9, 10; and act of September 19th, 1890, 26 Stat. 426, 453, c. 907, §§ 4, 5.

Finally, we have the act of March 23d, 1906, 34 Stat. 84, c. 1130, §§ 4, 5, which covers the same ground as the act of 1899 under which the present information was filed.”

5 United States v. Keokuk & H. Bridge Co., 45 Fed. 178 (under act of Congress, August 11, 1888, 25 U. S. Stat. at L. p. 424, §§ 9, 10, River & Harbor Bill), followed in United States v. Rider (D. C.), 50 Fed. 406.

"Act 1899, § 18, 30 Stat. 1153.

E. A. Chatfield Co. v. City of New Haven (C. C.), 110 Fed. 788, cited in United States v. Union Bridge Co., 143 Fed. 377, 387; United States v. Matthews (D. C.), 146 Fed. 306, 308. In this case the delegation to the Secretary of the Interior (transferred to Secretary of Agriculture) of certain powers for the protection of forest reservations was held void as an attempted delegation of legislative powers to an administrative officer, cited in United States v. Keitel (D. C.), 157 Fed. 396, 401; considered as expressing a contrary view

determined that the provisions of the act of Congress of 1890,8 conferring upon the Secretary of War authority concerning bridges over navigable water-ways, do not deprive the States of authority to bridge such streams, but simply create an additional cumulative remedy to prevent such structures, although lawfully authorized, from interfering with commerce. It is also decided by the same court that this enactment does not embrace officers of a municipal corporation, owning or controlling a bridge, who had not in their hands, and, under the laws of the State, could not obtain public moneys that could be applied in execution of the order of the Secretary of War, within the time fixed by that officer to complete the alteration of such bridge. The facts of this case appear in the appended note.10

in United States v. Bale, 156 Fed. 687, 688; cited but declared not in point in United States v. Shannon (C. C.), 151 Fed. 863, 865.

otherwise, or where there is difficulty in passing the draw-opening of the draw-span of such bridge by rafts, steamboats or other water crafts, it shall be the duty of said Secretary first giving the parties reasonable opportunities to be heard, to give notice to the persons or corporation

Not a delegation of legislative or judicial powers to Secretary of War. United States v. City of Moline (D. C.), 82 Fed. 592. 'Act September 19, 1890, c. 907, owning or controlling such bridge §§ 4, 5, 7.

• Lake Shore & Michigan Southern Ry. Co. v. Ohio, 165 U. S. 365, 41 L. ed. 747, 17 Sup. Ct. 357.

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 10 The fourth and fifth sections of specify the changes to be made and the River and Harbor Act approved shall prescribe in each case a reasonSeptember 19, 1890, provide: "§ 4. able time in which to make them. That 9 of the River and Harbor If at the end of such time the alterAct of August 11th, 1888, be amended ation has not been made, the Secreand re-enacted so as to read as fol- tary of War shall forthwith notify lows: That whenever the Secretary the United States District Attorney of War shall have good reason to be- for the District in which such bridge lieve that any railroad or other is situated to the end that the crimibridge now constructed or which nal proceedings mentioned in the may hereafter be constructed over succeeding section may be taken. any of the navigable waterways of § 5. That § 10 of the River and the United States is an unreasonable Harbor Act of August 11th, 1888, be obstruction to the free navigation amended and re-enacted so as to read of such waters on account of insuf- as follows: That if the persons, corficient height, width, or span, or porations or associations owning or

§ 153. Delegation of Power to Interstate Commerce Commission.-The Interstate Commerce Commission is a body corporate, with legal capacity to be a party plaintiff or defendant in the Federal courts. In enacting the interstate commerce acts, Congress had in view and intended to make provision for commerce between States and Territories, commerce going to and coming from foreign countries, and the whole field of commerce except that wholly within a State; and it conferred upon the commission the power of determining whether, in given cases, the services rendered were like and contemporaneous, whether the respective traffic was of a like kind, and whether the transportation was under substantially similar circumstances and conditions. If the commission has power of its own motion, to promulgate general decrees or orders, which thereby become rules of action to common carriers, such exertion of power must be confined to the obvious purposes and directions of the statutes, since Congress has not granted to it legislative powers. It was not the pur

controlling any railroad or other missioners of Muskingum County, bridge shall, after receiving notice to Ohio, to make on or before a named that effect, as hereinbefore required, day certain alterations in a bridge from the Secretary of War, and over the Muskingum River, Ohio, at within the time prescribed by him, Taylorsville in that State. The comwillfully fail or refuse to remove the missioners, although having control same, or to comply with the lawful of the bridge, did not make the order of the Secretary of War in the alterations required and were indicted premises, such person, corporation under the act of Congress. It was or association shall be deemed guilty held that however broadly the act of a misdemeanor, and, on convic- of Congress may be construed it tion thereof, shall be punished by a ought not to be construed as embracfine not exceeding $5,000, and every ing officers of a municipal corporamonth such person, corporation or tion owning or controlling a bridge association shall remain in default who had not in their hands, and unas to the removal or alteration of der the laws of their State could not such bridge, shall be deemed a new obtain, public moneys that could be offense and subject the person, cor- applied in execution of the order of poration or association so offending the Secretary of War within the to the penalties above described." time fixed by that officer to com26 Stat. 426, 453, c. 907. Proceed- plete the alteration of such bridge. ing under that act the Secretary of Rider v. United States, 178 U. S. War gave notice to the county com- 251, 44 L. ed. 1060, 20 Sup. Ct. 480.

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