201 U. S. MCKENNA, BREWER and BROWN, JJ., dissenting.

it employed confused or opposed the purpose. And the legis lature was dealing with important rights, some to be confined to twenty-five years, others to be extended to ninety-nine years; and we are asked to believe that it bunched those rights indiscriminately and trusted to a searching construction to sort them afterwards and take them out of the meaning of words which included them all.

There is another consideration of potent weight. The construction of the court was not the contemporary construction of the act of 1865. It was not the construction proclaimed by the Governor, justifying his veto of the act. He pointed out that the necessary effect of extending the lives of the corporations was to extend their rights in the streets of the city, and that he had received petitions signed by a large number of the citizens of Chicago, protesting against the measure as one which had been passed without their assent, or that of the corporate authorities, and that it extended the franchise for ninetynine years in advance of the term already vested in the corporation. And he also pointed out that the right given to the city to purchase the railway property at the end of twenty-five years, secured to it by the ordinance of August 16, 1858, was also extended to ninety-nine years. And upon a fair construction the Governor said, "the act seems hardly susceptible of any other meaning, ""and he had heard," he further said, "none other claimed for it." The Governor also considered the clause which continued in force the acts or deeds of transfer, and, so far as his words indicate, he perceived no difference between the instruments of transfer.

Seldom has a statute enacted at a distant time received so clear and influential proclamation of its meaning and effect as is afforded of the act of 1865, by the Governor's message. It seems now, forty years removed from the enactment of the law, that the Governor, who was close to its enactment, and the citizens of Chicago who protested against it, were mistaken in its meaning. And the Governor was part of the lawmaking power. It was his duty, therefore, to study the statute and

to try to know its purpose, not only from its text but from external circumstances. His misunderstanding needs to be accounted for. The misunderstanding of the protesting citizens of Chicago needs to be accounted for. Explanation cannot be found by asserting ambiguities in the act. There is not a syllable of evidence to indicate that any were perceived or regarded of consequence. The Governor was confident in his views. Of one of the effects of the act, and one which could not result unless his construction was correct, he said he had heard no other claimed for it than that which he entertained and expressed. There was no doubt with him, therefore, no disguise of the measure by its advocates. We are, however, now asked to believe that the legislature alone either saw or was persuaded of the real merits of the measure, and passed it over a groundless veto and ignorant opposition, with consciousness that it would be construed to have the meaning now given it. I am unable to so believe and am constrained to dissent from the judgment.

WEST CHICAGO STREET RAILROAD COMPANY PEOPLE OF THE STATE OF ILLINOIS ex rel. CITY OF CHICAGO.

ERROR TO THE SUPREME COURT OF THE STATE OF ILLINOIS.

No. 241. Argued January 10, 11, 1906.-Decided April 9, 1906.

Although the judgment of the state court rests partly on grounds of local or general law, and although the opinion may not expressly refer to the Constitution of the United States, if by its necessary operation the judgment rejects a claim, based on a constitutional right specially set up in the answer, that the relief prayed cannot, in any view of the case, be granted consistently with the contract or due process clauses of the Constitution, this court has jurisdiction to review under § 709, Rev. Stat. In a navigable stream the public right is paramount, and the owner of the soil under the bed can only use it so far as consistent with the public right; and a municipality, through which a navigable stream flows, cannot grant a right to obstruct the navigation thereof nor bind itself to permit the continuance of an obstruction, and this rule is not affected

201 U. S.

Argument for Plaintiff in Error.

by the fact that the person claiming a right to continue such an obstruction is the owner in fee of the bed of the stream.

A municipal ordinance giving permission to a street railroad company, to construct a tunnel under a navigable stream, the law of the State providing that railways shall not be constructed so as to interrupt the navigation of any water in the State, does not amount to a contract under the contract clause of the Constitution, so that the city could not subsequently require the company to lower the tunnel so as not to interfere with the increased demands of navigation; nor, in the absence of any provision to that effect, would it be construed as containing an implied covenant that the municipality would bear the expense of such alterations required by subsequent ordinances.

A municipality is under the duty of protecting the unobstructed navigation of navigable rivers under its jurisdiction; and it cannot be exempted therefrom by making agreements in regard thereto.

Courts may look through and behind mere forms, and interfere, whenever necessary, for the protection of private rights against an illegal, arbitrary exercise of governmental power.

The right of a railroad company to maintain a tunnel under a navigable river is subject to the paramount public right of navigation, and where it has been constructed under municipal ordinance and state law that it shall not interrupt navigation, the duty of not obstructing the navigation is a continuing one; and, if the increased demands of navigation at any time require a deeper channel than when the tunnel was originally constructed, it is within the power of the municipality to compel the railroad company at the latter's own expense to either remove the tunnel or lower it to conform with the necessities of commerce, and, as in this case, to the rule established by act of Congress, and such action of the municipality is not unconstitutional, and does not amount either to taking the property for public use without compensation, or depriving the company of its property without due process of law. C., B. & Q. R. R. Co. v. Drainage Commission, 200 U. S. 251, followed.

THE facts are stated in the opinion.

Mr. John P. Wilson, with whom Mr. Charles S. Babcock was on the brief, for plaintiff in error:

This court has jurisdiction. The judgment seeks to enforce an ordinance passed by the city council of Chicago. Whether or not such subsequent ordinance impairs the obligation of the contract between the company and the city depends upon the construction given to such contract. The Supreme Court of Illinois entered its judgment requiring the company to comply with the ordinance which, it is alleged, impairs the obligation

Argument for Plaintiff in Error.

201 U.S.

of the contract between the company and the city. The judgment is based upon a construction of the contract between the city and the company, which is denied by the company.

If this court should uphold the company's construction of the contract, then the subsequent ordinance, enforced by the judgment, impairs the obligation of such contract. This presents a Federal question involving an independent determination by this court of the true construction and legal effect of the contract between the city and the company under which the tunnel was constructed. Vicksburg R. R. Co. v. Dennis, 116 U. S. 667; Bryan v. Board of Education, 151 U. S. 639; City Light Co. v. Tallahassee, 186 U.S. 406; Wilson v. Standefer, 184 U. S. 399; L. & N. R. R. Co. v. Palmes, 109 U. S. 244; Chicago R. R. Co. v. Nebraska, 170 U. S. 57; University v. The People, 99 U. S. 321; Houston &c. R. R. v. Texas, 177 U. S. 66. An ordinance passed by the city council is a law within the meaning of the impairment clause of the Federal Constitution. St. Paul Gas Light Co. v. St. Paul, 181 U. S. 148.

The railroad company's tunnel when and as constructed was lawful and was private property owned in fee by the railroad company. The company was the owner in fee of the bed of the river at the point where the tunnel was constructed. Chicago v. Laflin, 49 Illinois, 172; McCartney v. C. & E. R. R. Co., 112 Illinois, 611; Chicago v. Van Ingen, 152 Illinois, 624.

The tunnel was constructed wholly below the bed of the Chicago river and at a depth sufficient to allow the free navigation of said river by vessels of the largest size in use on the river at the time of the completion of the tunnel and below the depth of said river as established by any lawful authority having jurisdiction.

At the date of the contract made by the city under which the tunnel was constructed the city of Chicago under its charter had jurisdiction over the river and full power to authorize the construction of the tunnel. Rev. Stat. Ill. c. 24, art. 5. Until the United States assumed jurisdiction over the Chicago river by the act of Congress, September 13, 1900, the State of

201 U.S.

Argument for Plaintiff in Error.

Illinois had plenary authority over the Chicago river. Wilson v. Blackbird Creek Marsh Co., 2 Peters, 245; Gilman v. Philadelphia, 3 Wall. 713; Pound v. Turck, 95 U. S. 459; Transportation Co. v. Chicago, 99 U. S. 635; Corrigan Transportation Co. v. Sanitary District, 125 Fed. Rep. 611; Escanaba v. Chicago, 107 U. S. 678; Miller v. Mayor of New York, 109 U. S. 385; Cardwell v. Bridge Co., 113 U. S. 205; County of Mobile v. Kimball, 102 U. S. 691; Prosser v. North Pac. R. R. Co., 152 U. S. 59; Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1.

The tunnel was as lawful as though it had been directly constructed by the city itself under its charter powers. McCartney v. Chicago & Evanston R. R. Co., 112 Illinois, 611. The carrying of passengers through the tunnel is commerce of the same grade as the carrying of passengers or freight on the river. Transportation Co. v. Chicago, 99 U. S. 635.

The ordinance requiring the company to lower the tunnel, constructed by it under agreement with the city, was void and inoperative as it impaired the obligation of that contract, in violation of § 10, Art. I, of the Constitution of the United States.

The tunnel being the lawful property of the railroad company could not be taken from the company for the purpose of improving the navigation of the Chicago river without compensation being made to the company. Yates v. Milwaukee, 10 Wall. 497; Bridge Co. v. United States, 105 U. S. 470; United States v. Navigation Co., 148 U. S. 312; Scranton v. Wheeler, 179 U. S. 141; United States v. Lynch, 188 U. S. 445; Chicago v. Laflin, 49 Illinois, 172; Chicago v. Van Ingen, 152 Illinois, 624.

The enforcement of the judgment of the state court would constitute a taking of the railroad company's property. The mandate is either to remove the tunnel or to lower it, at the expense of the company. A removal of the tunnel at the expense of the company would take the tunnel away from the company and also take from it the cost of its removal. The lowering of the tunnel would take from the company the money expended in such lowering. In either case the private property of the company is taken from it for public use, namely,