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FEDERAL REGULATION OF RAILWAY BRIDGES
In the case of bridges over navigable streams Congress has regulated railway construction in a direct and general way. The approval of plans by the secretary of war is required for bridges over navigable streams, and, where the rivers form the boundary between states, Congress has granted special charters. Such control has been based upon the commerce clause of the constitution.
EARLY REGULATION : THE WHEELING BRIDGE CASE
One of the early leading cases of congressional regulation of bridges under the power to regulate commerce occurred just at the beginning of the second half of the century. It did not directly concern railways, but is important as a precedent. The bridge across the Ohio at Wheeling had been constructed under an act of authorization from Virginia. It was built so low that the lofty chimneys of some river steamers could not pass under it and Pennsylvania brought suit against the company, claiming that her commerce was being obstructed. The supreme court declared the bridge an unlawful obstruction. Congress at once passed an act—in 1852—authorizing the bridge and setting aside the court's decision. It declared the bridge to be a lawful structure, established it as a post-road, and ordered steamboats to so adjust their smoke stacks as not to interfere with it.? Further litigation with the object of overruling the act of Congress ended in a decision of the supreme court which declared that Congress had full power under its right to regulate commerce to decide what was an obstruction and that the act was valid.
1 See 18 How., 421, 442. 2 Statutes at Large, 10 : 112.
Prior to the Civil War, however, the bridge question was of relatively slight importance. It was only when western development made the bridging of the Mississippi and Ohio rivers essential that important congressional action began. For in those days the rivers were highways of much commerce, and great rafts and tall-chimneyed steamers were borne by them, demanding wide, unobstructed channels. The first bridge over the Mississippi river between Rock Island and Davenport, for instance, was a railway drawbridge built without the sanction of Congress, as was the earlier custom, and river transportation interests complained bitterly of the obstruction it presented. In the seventh decade came the beginning of the first important bridge legislation.
WAYS IN WHICH BRIDGE CONSTRUCTION HAS BEEN REGULATED
In at least three ways the government has necessarily interfered in the construction of what is often an integral part of a railway system: it has in some cases practically required the construction of bridges; it has determined the location of these and others; and it has prescribed the kind, size, etc., of many more.
When Congress, in establishing the Union Pacific railway, provided that its eastern terminus should lie upon the western border of Iowa, it practically required a bridge across the Missouri river at that point. And the act of Congress granting land to Illinois provided for a railway to Dubuque, and Dubuque lay in Iowa; hence the force of the argument that it was evidently intended that a bridge should be constructed across the Mississippi river. In 1855 pressure was brought to bear upon the Illinois Central to make it carry out the intention."
As an instance in which the government specifically fixed the location of a railway bridge, the one at La Crosse, Wis., may be mentioned. The railway was authorized to build a bridge over the Mississippi between La Crosse county, Wis., and Hud
: Sen. Docs., 1855-56, 10: no. 39.
son county, Minn. In accordance with the act, the secretary of war located the bridge, which location proved undesirable to the railway and it petitioned Congress for permission to locate elsewhere.
Many illustrations might be given of the way in which Congress prescribed the details of bridge construction. The most common provision concerned the length of spans, arches, or draws and height above the stream. Typical regulation of this description may be found in the case of the Chicago and Illinois Southern's bridge across the Big Wabash, and in the 'act to authorize the construction of certain bridges, and to establish them as post roads" passed in 1866. The object of this supervision was, of course, to preserve the freedom of navigation and it was in the interest of inland water transportation.
Congress had more than one lesson to learn by experience. When the Chicago and Illinois Southern came before that body with a petition for bridge rights over the Wabash, Mr. Edmunds reminded his colleagues of their trouble with the Cincinnati bridge: here alteration to meet the demands of navigation had been refused unless the government paid for it. At his suggestion, the bill was amended to provide specifically, not only that the bridge should always be kept so as not to interfere with navigation, but also that it should be altered whenever Congress directed, and at the expense of the owners.?
OBSTRUCTION OF THE OMAHA BRIDGE ATTACKED
In 1874 a bill was introduced which provided that the bridge constructed by the Union Pacific over the Missouri river between Omaha and Council Bluffs, together with its approaches on either side, should be held and operated as a part of the continuous line of the railway. The reason for such a measure was this: the bridge had been operated by a nominally distinct company, the “Transfer Company," and as a result, traffic
• H. Misc., 1872-73, no. 10.
Cong, Globe, 1870-71, p. 1682. * H. Jr., 1874-75, p. 16.
was being interrupted and impeded by unreasonable restrictions. Passengers were compelled to transfer to the cars of the Transfer Company—which were not what they should have been—and to re-check their baggage, for which privilege a fee of fifty cents was exacted. To transfer a freight car over the river cost ten dollars. The evil of the situation was enhanced by the fact that these practices were in the nature of a discrimination in favor of Omaha, and it was charged that the city paid for the favors it received.
Such discrimination, it will be observed, tended to defeat the purpose of Congress to make the eastern terminus of the railway lie in Iowa.
No valid arguments were advanced against the passage of the bill, save the fact that the issue had already been taken to the circuit court for the district of Iowa and was thus under adjudication. On this ground, action on the bill was deferred. The case, which was a proceeding in mandamus to compel the Union Pacific to operate its railway as one continuous line was won by the government (ex rel. Hall et al.),' and, the necessity for it being gone, the bill was not again taken up.
RATES OF TOLL ON BRIDGES REGULATED
Reference has already been made to a law passed in 1866 and entitled, “An act to authorize the construction of certain Bridges and to establish them as Post Roads." It authorized any person or corporation, having authority from Illinois or Missouri, to build a bridge across the Mississippi at Quincy, and to lay tracks over it. All railways terminating here should be allowed to cross the bridge for reasonable compensation. Structural requirements were given, and the bridge declared a post route. Similar provisions were added for several other bridges, at St. Louis, Prairie du Chien, Winona, Keokuk, etc.
But the chief reason for mentioning this act here, is its prèvision concerning rates of charge on the bridges. It runs as follows: “No higher charge shall be made for the transmission over the same of the mails, the troops, and the munitions of
• See H. Misc., 1875-76, no. 184, for text of the decision, and briefs.
war of the United States, than the rate per mile paid for their transportation over the railroads or public highways leading to the said bridge." This formula was commonly included in such acts. Though of no great practical effect, the provision is not devoid of significance. It would mean decidedly lower rates for government transportation than those generally enforced in private service.
In 1873 a resolution looking toward more general and positive action than this was passed by the House. It was to the effect that the committee on railroads and canals inquire whether the rates charged by the Chicago, Rock Island and Pacific for the transportation of cars, freight, and passengers across the bridge connecting Davenport and Rock Island were reasonable, and, if not, what measures might be taken to make them so.1 The wording of this proposition reminds one of later discussions. However, no further action in the matter seems to have been taken and no report was made.
Of wider significance, too, were certain clauses inserted in the act authorizing a bridge over the Missouri in Douglas county, Nebraska. One provided for ways for wagons and pedestrians, for the use of which reasonable tolls as approved by the secretary of war might be charged. Section four contained these words: “and Congress reserves the right at any time to regulate by appropriate legislation the charges for freight and passengers over said bridge." This is a considerable step beyond the regulatory provision of the act of 1866.
A reason given for the authorization of this same Douglas county bridge was the desirability of competition. A committee report stated that, on account of the great traffic at Omaha, one thousand car-loads of freight per week,-a bridge should be erected by another company than the one having the then existing bridge in charge, "for the accommodation of commerce, and the reduction of tolls incident to competition.''13
The provision in the act of 1866 requiring equal treatment of all railways desiring to use the bridges concerned is typical.
10 E. 9., Cong. Globe, 1871, pp. 610, 627, 11 Cong. Rec., 1873–74, p. 346. 12 See Ibid., 1983-84, pp. 4182, 5117. 13 H. Rep, 1883-84, no. 13:54.