the employees at the quartermaster's department at Philadelphia-known as the Schuylkill Arsenal-and the other employees referred to in the indorsements of the Chief of Ordnance and the Quartermaster-General above referred to. Respectfully, GEORGE W. WICKERSHAM. The SECRETARY OF WAR. BRIDGE ACROSS THE MISSISSIPPI RIVER AT HILL CITY, MINNESOTA.-CONSTRUCTION. The act of February 15, 1910 (36 Stat. 193), entitled an act to legalize the construction of a bridge across the Mississippi River at Hill City, Atkin County, Minn., does not require the Secretary of War to approve the bridge as built with possibly such minor changes as might be readily made. The act above referred to is at most permissive. Congress did not intend to legalize the structure if it did not meet with the approval of the Secretary of War and the Chief of Engineers. The Secretary of War would be authorized to approve the bridge in question, if, after such alterations as might be readily made therein, it could be fairly held to satisfy the present needs of navigation, leaving the prospective needs of navigation to be dealt with under the general authority conferred upon him by section 4 of the act of March 23, 1906 (34 Stat. 84), to require the alteration of such structures to meet the needs of navigation. DEPARTMENT OF JUSTICE, June 15, 1910. SIR: Under date of the 9th instant, at your direction, the Assistant Secretary of War requested my opinion. upon certain questions arising out of the legislation of Congress in respect to a bridge across the Mississippi River at Hill City, Minn. From the statement of facts accompanying this request. it appears that by the act approved May 20, 1908 (35 Stat. 166, 167), the Mississippi, Hill City and Western Railway Company was authorized to construct, maintain, and operate a railroad bridge and approaches thereto across the Mississippi River at a certain point in Aitkin County, Minn.. section 2 of that act providing that all of the bridges thereby authorized should be constructed in accordance with the provisions of the act approved March 23, 1906 (34 Stat. 84). Section 1 of the latter act provides: "Be it enacted, etc., That when, hereafter, authority is granted by Congress to any persons to construct and maintain a bridge across or over any of the navigable waters of the United States, such bridge shall not be built or commenced until the plans and specifications for its construction, together with such drawings of the proposed construction and such map of the proposed location as may be required for a full understanding of the subject, have been submitted to the Secretary of War and Chief of Engineers for their approval, nor until they shall have approved such plans and specifications and the location of such bridge and accessory works; * * After referring to this legislation, the Assistant Secretary of War states: "By letter of June 15, 1908, the company applied for approval of the plans and location, but at the time the application was made the bridge was practically completed, so far as the features affecting navigation were concerned, the piers having been built and the grade fixed. It appeared upon investigation that the location of the structure was as bad a one as could have been selected, and that future complaint by navigation interests was not improbable, in view of which the department declined to approve the plans presented and advised the company that if the bridge was completed as planned it would be an illegal structure." On February 15, 1910, the President approved an act passed by Congress at its present session entitled "An act to legalize the construction of a bridge across the Mississippi River at Hill City, Aitkin County, Minnesota," which provided (36 Stat. 193): "Be it enacted, etc., That the consent of Congress is hereby granted to the Mississippi, Hill City and Western Railway Company, a corporation of the State of South Dakota, to maintain and operate the bridge and approaches thereto now constructed across the Mississippi River at section four, township fifty-two north, range twenty-three west, in Aitkin County, in the State of Minnesota, in accordance with the provisions of an act entitled 'An act to regulate the construction of bridges over navigable waters,' approved March twenty-third, nineteen hundred and six: Provided, That the said Mississippi, Hill City and Western Railway Company shall, within three months after the passage of this act, file with the Secretary of War their acceptance of this act, together with plans and specifications of the said bridge, and said plans and specifications shall have been approved by the Secretary of War and the Chief of Engineers; otherwise, this act shall be null and void. "SEC. 2. That the right to alter, amend, or repeal this act is hereby expressly reserved." In accordance with the proviso to section 1 of the act, the Assistant Secretary of War states "that the company now files its acceptance of the provisions of the act, and submits plans for departmental approval," but adds: "It appears from the report of the 30th ultimo by the district engineer officer that the bridge as built is decidedly objectionable to navigation interests; and that, while the company has endeavored to remedy some of its obstructive features, little has been accomplished, for the reason that the principal fault is in the location. The district officer is of the opinion that approval should not be given to such a bridge, and protests against favorable action have been filed by navigation interests. "It will be noted that the act in question is somewhat peculiarly drawn, and considering that the bridge was already built and that Congress was fully advised as to the facts in the case at the time the measure was passed, the Secretary of War is in doubt as to the extent of discretion lodged in the department. Whether it was the intention of Congress that the bridge should be allowed to stand as built, with possibly such minor changes as can readily be made, or to legalize only such a bridge as, in the judgment of the department, will amply satisfy the present and prospective demands of navigation, which would require radical changes and probably entire reconstruction at a different site, is a question not wholly clear." Upon this statement of facts the following questions have been presented for my determination: "1. Does the statute require the Secretary of War to approve the bridge as built, with possibly such minor changes as can be readily made; or "2. Does the act legalize only such a bridge as, in the judgment of the department, will amply satisfy the present and prospective demands of navigation, which would require radical changes and probably reconstruction at a different site; which exercise of authority would probably result in nullifying the law?" It appears that the original bill (H. R. 11307, 61st Cong., 2d sess.) on this subject provided: "Be it enacted, etc., That the bridge constructed across. the Mississippi River at section 4, township 52 north, range 23 west, being in Aitkin County, in the State of Minnesota, by the Mississippi, Hill City and Western Railway Company be, and the same is hereby, legalized, and the consent of Congress is hereby given to its maintenance by said company: Provided, That any changes in the said structure. which the Secretary of War may at any time deem necessary, and order in the interest of navigation, shall be promptly made by the owners thereof at their own expense." This bill was reported from the Committee on Interstate and Foreign Commerce with an amendment striking out all after the enacting clause and adding the provisions which appear in the act as passed. (H. R. Report No. 322, 61st Cong., 2d sess.) This report stated that "the bill as amended has the approval of the War Department, as will appear by the indorsements attached and which are made a part of this report." The indorsements referred to read as follows: "WAR DEPARTMENT, "OFFICE OF THE CHIEF OF ENGINEERS, "Washington, December 18, 1909. Respectfully returned to the Secretary of War. "The construction of the bridge mentioned in the accompanying bill (H. R. 11307, 61st Cong., 1st sess.) was authorized by an act approved May 20, 1908, but the plans for the structure were not submitted to the Secretary of War for approval, as required by the act, until construction had been commenced and those features that affect navigation had been fixed and practically completed. In consequence of this, and of the further fact that the bridge was badly located, the Secretary of War declined to approve the plans, and the structure is therefore an illegal one. "The object of the bill now under consideration is to cure this defect and legalize the bridge. Although, on account of its faulty location, the bridge is likely to be the cause of future complaint on the part of navigation interests, I do not see any objection to the passage of the bill, as I am of the opinion that the proviso therein, 'that any changes in the said structure which the Secretary of War may at any time deem necessary, and order in the interests of navigation, shall be promptly made, by the owners thereof at their own expense,' is sufficient to safeguard the interests of the public. "It is suggested, however, that the usual express provision reserving the right to amend or repeal be added to the bill. "W. L. MARSHALL, "Chief of Engineers, U. S. Army. "WAR DEPARTMENT, "December 20, 1909. "Respectfully returned to the chairman Committee on Interstate and Foreign Commerce, House of Representatives, inviting attention to the foregoing report of the Chief of Engineers, U. S. Army. "ROBERT SHAW OLIVER, The act of February 15, 1910, refers on its face to "the bridge and approaches thereto now constructed," so that Congress must be presumed, especially in view of the report of the Committee on Interstate and Foreign Commerce, to have been fully aware of the fact that such bridge was an existing structure. The committee amendment entirely changed the language of the bill as originally introduced, including the proviso, |