Ryan v. Chicago, B. & QR Co., 59 F.2d 137 (7th Cir. 1932)

*138 *139 *140 Stanley M. Ryan and Harold E. Hanson, both of Madison, Wis., for appellants.

J. W. Weingarten, of Omaha, Neb., A. C. Scott, of Denver, Colo., and J. C. James, of Chicago, Ill. (Bruce Scott, of Chicago, Ill., of counsel), for appellee.

Henry N. Benson, Atty. Gen., for Upper Mississippi and St. Croix River Improvement Commission.

George C. Lambert, of St. Paul, Minn., and A. C. Wiprud, of Minneapolis, Minn. (Mortimer H. Boutelle, Sp. Asst. Atty. Gen., of counsel), for Upper Mississippi Barge Line Co.

Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.

*141 SPARKS, Circuit Judge (after stating the facts as above).

It is appellee's contention, and the trial court so found, that Congress had fixed the height, type, and cost of the dam to be constructed across the Mississippi river at Alma, and that it was to be a low movable dam, of navigable type, costing $2,944,000, having a lift of 7 feet, and impounding the water of the river to an elevation of 665.7 feet above mean sea level. These specifications are hereinafter referred to as plan 1.

It is appellee's further contention, and the trial court so found, that, in order to provide a water depth of 9 feet for navigation, appellants were proceeding, without authority, to build at Alma a dam of a fixed or nonnavigable type, costing $3,800,000, with a lift of 12 feet, to impound the water of the river to a pool level of 670 feet above mean sea level. These second specifications are hereinafter referred to as plan 2. Such construction, by reason of the absence of levees and embankments, would flood and damage riparian property, including that of appellee, to a much greater extent than would construction under plan 1. Appellee further contends that Congress has not authorized the construction under plan 2, and has made no appropriation out of which the cost or resulting damage of such construction can be legally paid; and that, although the United States may consent to be sued for such cost and damage, there is no liability resting upon it to respond in damages for the construction of any work which it has not authorized or for which it has made no appropriation. It is therefore contended by appellee that, on account of the absence of such authorization or appropriation, appellants have no right to cause the damage which will necessarily result from the construction under plan 2, nor to appropriate appellee's land sought to be appropriated for that purpose.

In argument it was frankly stated by appellee that the value of the real estate sought to be appropriated is not of great importance, and that appellee is not objecting to the appropriation of the real estate for the purpose designated provided it is done lawfully; neither is appellee objecting to the work being established as contemplated by appellants provided it is done in conformity to law, and this appellee insists upon for the sole purpose of making certain its compensation for very great damages by "flowage," which are sure to result from the construction of the work under plan 2.

Appellants contend, however, that the government has authorized the construction of the dam under plan 2, and that a valid appropriation for that purpose has been made by Congress, although not sufficient in amount to cover the entire cost and resulting damage. Their theory is that, while a dam at Alma has not specifically been referred to by Congress, yet, by virtue of the Act of July 3, 1930, 46 Stat. 918, 927, a general project was *142 authorized by Congress for improving the Mississippi river between the Illinois river and Minneapolis, for the purpose of improving navigation, by constructing and maintaining a 9-foot channel therein; and that, in order to accomplish that purpose, it is necessary to construct the dam at Alma according to the plans and specifications under which appellants are threatening to proceed.

Detailed plans and specifications for the construction of enormous works of this kind are never prepared and approved in advance by Congress, but, after authorization of the work by Congress, the plans are prepared by officers of the Board of Engineers of the United States Army under the supervision of the Secretary of War, to whom is given a very wide discretion over the construction, maintenance, and alteration of dams, bridges, and dikes in the navigable waters of the United States. 33 USCA §§ 1, 3, 401, 403. See also 33 USCA §§ 2, 27, 38, 402, as illustrative of such delegated discretion. The lodgment by Congress of such discretion in the Secretary of War and the Board of Engineers is not a delegation of legislative power, but of mere administrative detail which the law permits. Louisville Bridge Co. v. United States, 242 U.S. 409, 37 S. Ct. 158, 61 L. Ed. 395; St. Louis Cons. Coal Co. v. Illinois, 185 U.S. 203, 22 S. Ct. 616, 46 L. Ed. 812; Miller v. Mayor of New York, 109 U.S. 385, 3 S. Ct. 228, 27 L. Ed. 971; Field v. Clark, 143 U.S. 649, 12 S. Ct. 495, 36 L. Ed. 294; Wayman v. Southard, 10 Wheat. (23 U. S.) 1, 6 L. Ed. 253; State of Missouri, etc., v. Union Electric Light & Power Co. (D. C.) 42 F.(2d) 692; Delaware R. Co. v. Weeks (D. C.) 293 F. 114; Loud v. United States (C. C. A.) 286 F. 56; Alabama Power Co. v. Gulf Power Co. (D. C.) 283 F. 606; In re Condemnations for Improvement of Rouge River (D. C.) 266 F. 105; United States v. Certain Lands in Town of Narragansett (C. C.) 145 F. 654; United States v. Union Bridge Co. (D. C.) 143 F. 377; United States v. David Burns and Gideon Burns (C. C.) 54 F. 351; Hawkins Point Light-House Case (C. C.) 39 F. 77.

It is not contended that the Secretary of War or those acting under him can override the will of Congress. His discretion lies in working out the details which he deems necessary to carry out the project authorized by Congress; but if Congress so desires it may limit the project as to details, and, if it does so, the Secretary of War has no authority to ignore or change those details. These principles we regard as well settled, and we do not understand that appellants controvert them.

It is contended, however, by appellee that Congress, by the Act of July 3, 1930, placed a limitation upon the dam to be constructed at Alma by adopting plan 1, and for that reason appellants have no authority to substitute and adopt plan 2 without the approval of Congress.

The act last referred to does not in words mention the Alma dam, but it modifies the existing project "so as to provide a channel depth of nine feet at low water * * * to be prosecuted in accordance with the plan * * * submitted in House Document Numbered 290 * * * and the sum of $7,500,000, in addition to the amounts authorized under existing projects, is hereby authorized to be appropriated for the prosecution of initial works under the modified project: Provided, That all locks below the Twin City Dam shall be of not less than the Ohio River standard dimensions."

House Document No. 290 is a letter from the Secretary of War to the Speaker of the House of Representatives transmitting a report from the chief of engineers on a partial survey of the Mississippi river between the mouth of the Missouri river and Minneapolis, with a view to securing a channel depth of 9 feet at low water, with suitable widths. The report states that a "final report will be submitted after completion of the survey now in progress, which is expected to require about 12 months' additional time"; and the Board of Engineers recommended that final action on the case be deferred until the survey has been completed. The report further states that it is the Board's belief "that the date of completion of a 9-foot project, should one be adopted as a result of that report, would be advanced rather than delayed by a carefully worked out program of construction, which can be prepared only after complete and detailed plans are available. * * * That greater immediate benefits to navigation will result from utilizing this season in pushing the work now authorized on the 6-foot project."

The Board in its report considered both plans 1 and 2, together with variations of those plans. Much uncertainty was expressed as to the plans which should be ultimately adopted. It referred to one principal advantage of plan 1, in that flowage damage would be a minimum. A perusal of the entire report, however, is quite persuasive of the fact that the Board thought the height and character of the dam as specified in plan *143 1, which is known as a wicket type dam, and is such as are used in the Ohio river, would never accomplish the results contemplated by the statute which authorized the project. The Board, however, adopted plan 1 for a comprehensive project for estimating purposes only, but it further stated in its report that "upon receipt of more definite and complete information as a result of surveys now in progress it may prove advisable to construct fixed dams in this upper reach and no project should be adopted which will make the erection of any specified type of dams mandatory, before the accumulation of more complete data." This report was referred to the Committee on Rivers and Harbors on February 15, 1930, and the act which authorizes the project now in controversy was enacted July 3, 1930, as referred to in the trial court's findings.

Prior to November 4, 1931, appellants instituted condemnation proceedings, referred to in the statement of facts, preliminary to their proceeding to construct the proposed work under plan 2. On November 4, 1931, the instant cause was instituted by appellee, and appellants answered November 21, 1931, and the cause was submitted for trial on December 5, 1931.

On December 9, 1931, the Secretary of War transmitted to the Speaker of the House of Representatives the report of the chief of engineers, referred to as House Document No. 137, which recommends the construction of the dam at Alma under plan 2, and it was referred to the Committee on Rivers and Harbors. On January 13, 1932, before Congress had acted on the last report, the District Court entered the decree from which this appeal is taken.

The passage of the Amendatory Act of July 3, 1930, was no doubt a result of House Document No. 290, which was then before Congress, and by reason of such amendment and the appropriation therein contained the act had the effect of authorizing the project according to the plan, if any, approved or recommended in that document. No doubt such approved or recommended plan, if any, could subsequently be changed materially or even substituted by the Secretary of War with the approval of Congress; but Congress having once authorized the project, or any part thereof, to be done according to certain detailed and specified plans, we think the discretion of the Secretary of War to that extent would be limited, and any subsequent material change or substitution with respect thereto by the Secretary of War could not be said to be authorized by Congress until approved by it.

Uncertainty exists as to whether Congress intended, by its passage of the act of 1930, to adopt any detailed plan for the dam at Alma. In its report the Board of Engineers recommended that the character of the dam at Alma be not then made mandatory; but it adopted plan 1 for estimating purposes only, which plan contemplates the improvement by means of seven low movable dams, Nos. 3 to 9, inclusive, the Alma dam being No. 4. The low movable dams referred to are the kind used in the Ohio river. The report also divides the entire project into two steps, and the Alma dam is included in the first step, at an estimated cost of $2,944,000, which is the estimated cost of that dam under plan 1; and it recommends "that the works of the first step, adapted as they are to an ultimate 9-foot channel, but absolutely necessary for adequate 6-foot navigation, be authorized at once." It will also be noted that the act of 1930 provides that "all locks below the Twin City Dam shall be of not less than the Ohio River standard dimensions," which might indicate that Congress expected that type of dam to be used, which type is not contemplated in plan 2.

The least that can be said is that there is great doubt and uncertainty as to the extent of the authorization of Congress relative to the Alma dam. The damage which will necessarily result to appellee under plan 2 is so enormous that no uncertainty should be permitted to exist as to appellee's right to compensation. We are fortified in this conclusion by the fact that subsequently Congress did express itself in more certain terms. It cannot be doubted that Congress had the power to reject the report, but it did not, and the trial court, at the time the decree was entered, could not know what Congress would do; for the last time the project was under consideration by Congress the Board of Engineers would not approve plan 2 and advised Congress not to do so.

On February 24, 1932, the following act was passed by Congress:

"Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the provision, relating to the Mississippi River between the mouth of the Illinois River and Minneapolis, in section 1 of the Act entitled `An Act authorizing the construction, repair, and preservation of certain public works on *144 rivers and harbors, and for other purposes,' approved July 3, 1930, is hereby amended to read as follows:

"`Mississippi River between mouth of Illinois River and Minneapolis: The existing project is hereby modified so as to provide a channel depth of nine feet at low water with widths suitable for long-haul common-carrier service, to be prosecuted in accordance with the plan for a comprehensive project to procure a channel of nine-foot depth, submitted in House Document Numbered 290, Seventy-first Congress, second session, or such modification thereof as in the discretion of the Chief of Engineers may be advisable; and the sum of $7,500,000, in addition to the amounts authorized under existing projects, is hereby authorized to be appropriated for the prosecution of initial works under the modified project: Provided, That all locks below the Twin City Dam shall be of not less than the Ohio River standard dimensions.'"

The only amendment to the act of July 3, 1930, is the addition of the italicized part of the sentence in the second paragraph. It will be presumed that Congress, in enacting this amendment, had in mind all the information set forth in House Documents numbered 290 and 137, and we think there can be no doubt that it intended to, and did, by the last amendment referred to, authorize the construction of the Alma dam according to plan 2. Gibson v. United States, 166 U.S. 269, 17 S. Ct. 578, 41 L. Ed. 996; Wisconsin v. Duluth, 96 U.S. 379, 24 L. Ed. 668; South Carolina v. Georgia et al., 93 U.S. 4, 23 L. Ed. 782; Greenleaf Johnson Lumber Co. v. United States (D. C.) 204 F. 489; Miller v. Mayor of New York, supra.

It is contended by appellee, however, that the word "modification," as used in the enactment, does not warrant the substitution of an entirely different dam from the one contemplated by plan 1. Of course the word "modification" is a relative term, and must be interpreted in relation to the subject-matter with which it is used. It will be noted that the power to modify relates to the general project and is not limited to the dam, for the dam is not mentioned in the enactment. If applied to the dam, plan 2 very properly might be considered a substitution of plan 1 rather than modification of it; but, when applied to the general project, we are convinced that plan 2 is merely a modification in detail of the general project, and was so intended by Congress.

Appellee insists that under the act of July 3, 1930, and the act of February 24, 1932, appellants' authority to prosecute the plan for a comprehensive project is limited to expenditure of the money appropriated, citing Rev. St. § 3733, 41 USCA § 12; 34 Stat. 255, 41 USCA § 11; 34 Stat. 764, 31 USCA § 627; Goodyear Tire & Rubber Co. v. United States, 276 U.S. 287, 48 S. Ct. 306, 72 L. Ed. 575; Leiter v. United States, 271 U.S. 204, 46 S. Ct. 477, 70 L. Ed. 906; Sutton v. United States, 256 U.S. 575, 41 S. Ct. 563, 65 L. Ed. 1099, 19 A. L. R. 403. The statutes referred to and the decisions interpreting them relate to contracts and are not applicable.

Where an appropriation is made for a general plan or project, the appropriation bill is sufficient authority for the prosecution of that work under the supervision and superintendence of that officer of the United States having charge of the particular matter, and the appropriation is not required to be made for the entire amount before the project is begun. South Carolina v. Georgia et al., supra; Wisconsin v. Duluth, supra; Miller v. Mayor of New York, supra; Gibson v. United States, supra; Greenleaf Johnson Lumber Co. v. United States, supra. We know of no authority requiring damages to be paid by the government as a condition precedent to its proceeding with the construction of such a project as is contemplated in the instant case.

Appellants further contend that parts of findings Nos. 2, 5, 6, and 7 are unsupported by substantial evidence. There is no merit in this contention, as the bill fully alleges all the facts found, and to a large extent they are undenied by the answer. Whether appellants were harmed in being misled by the colloquy ensuing between the court and the attorneys relative to an extended hearing is a question not presented by this record.

It is also contended by appellants that the court erred in overruling their motion to dismiss the bill because the government had not consented to be sued, and because the bill disclosed no ground for equitable relief. We think the court very properly found that this is not a suit against the United States, but is a suit against her agents, who appellee claims are exceeding the authority granted by their principal, and that, if they are permitted so to continue, irreparable damage to appellee will result. Philadelphia Company v. Stimson, Secretary of War, 223 U.S. 605, 32 S. Ct. 340, 56 L. Ed. 570. Inasmuch as the government cannot be held liable for the acts of its agents committed in excess of their authority, appellee would be remediless at law *145 for damages resulting from such unauthorized acts. In view of our holding that, prior to the act of February 24, 1932, appellants were threatening to act in excess of their authority, we think the allegations of the bill were sufficient to warrant the interference of equity. Osborne v. Missouri Pacific R. Co., 147 U.S. 248, 13 S. Ct. 299, 37 L. Ed. 155; Bass v. Metropolitan West Side El. R. Co. (C. C. A.) 82 F. 857, 39 L. R. A. 711; Payne v. Kansas & A. V. R. Co. (C. C.) 46 F. 546.

We are convinced that under the facts as they existed at the time of the decree the court was warranted in granting the injunction; but we are further convinced that the act of February 24, 1932, fully authorized appellants to proceed with the project as contemplated, and the cause is now remanded with direction to dissolve the injunction.