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The fifth section makes it a misdemeanor to willfully refuse to comply with the lawful orders of the secretary of war in the premises, and for the prosecution of the offender by proceedings instituted by the proper district attorney. The portion of the seventh section, which relates to the question in hand, is as follows:

"And it shall not be lawful hereafter to commence the construction of any bridge, bridge-draw, bridge piers and abutments, causeway or other works over or in any port, road, roadstead, haven, harbor, navigable river, or navigable waters of the United States, under any act of the legislative assembly of any state, until the location and plan of such bridge or other works have been submitted to and approved by the secretary of war, or to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of the channel of said navigable water of the United States, unless approved and authorized by the secretary of war: provided, that this section shall not apply to any bridge, bridgedraw, bridge piers and abutments the construction of which has been heretofore duly authorized by law, or be so construed as to authorize the construction of any bridge, draw bridge, bridge piers and abutments, or other works, under an act of the legislature of any state, over or in any stream, port, roadstead, haven or harbor, or other navigable water not wholly within the limits of such state."

On the face of this statute, it is obvious that it does not support the claim based upon it. Conceding, without deciding, that the words "waterways of the United States," therein used, apply to all navigable waters, even though they be wholly situated within a state, and passing, also, without deciding, the contention that congress can lawfully delegate to the secretary of war all its power to authorize structures of every kind over all navigable waters, nothing in the statute gives rise even to the implication that it was intended to confer such power on the secretary of war. The mere delegation to the secretary of the right to determine whether a structure authorized by law has been so built as to impede commerce, and to direct, when reasonably necessary, its modification so as to remove such impediment, does not confer upon that officer power to give original authority to build bridges, nor does it presuppose that congress conceived that it was lodging in the secretary power to that end. When the distinction between an authorized structure so erected as to impede commerce and an unauthorized work of the same character is borne in mind, the fallacy of the contention relied on becomes apparent. The mere delegation of power to direct a change in lawful structures so as to cause them not to interfere with commerce cannot be construed as conferring on the officer

named the right to determine when and where a bridge may be built. If the interpretation claimed were to be given to the act, its necessary effect would be that congress, in creating an additional means to control bridges erected by authority of law, had, by implication, confirmed and made valid every bridge built without sanction of

law.

The language of the seventh section makes clearer the error of the interpretation relied on. The provision that it shall not be lawful to thereafter erect any bridge "in any navigable river or navigable waters of the United States, under any act of the legislative assembly of any state, until the location and plan of such bridge * * * have been submitted to and approved by the secretary of war," contemplated that the function of the secretary should extend only to the form of future structures, since the act would not have provided for the future erection of, bridges under state authority if its very pur-e pose was to deny for the future all power in the states on the subject. The qualification affixed to the proviso which accompanies this section throws light on the entire statute, and points obviously to the purpose intended to be accomplished by its enactment. The qualifying language is that the section shall not apply to any bridge "heretofore duly authorized by law, or be so construed as to authorize the construction of any bridge, draw bridge, bridge piers, and abutments, or other works, under an act of the legislature of any state, over or in any stream, port, roadstead, haven or harbor, or other navigable water, not wholly within the limits of such state." The construction claimed for the statute is that its purpose was to deprive the states of all power as to every stream, even those wholly within their borders, while the very words of the statute, saying that its terms should not be construed as conferring on the states power to give authority to build bridges on streams not wholly within their limits, by a negative pregnant with an affirmative, demonstrate that the object of the act was not to deprive the several states of the authority to consent to the erection of bridges over navigable waters wholly within their territory. To hold that the act manifested an intention on the part of congress to strip the several states of all authority over every navigable stream wholly within the state would require the obliteration of these qualifying words, and would therefore be the creation of a new statute by judicial construction. It follows, therefore, that, even conceding arguendo that the words "navigable waters" as used in the act were intended to apply to streams wholly within a state, its obvious purpose was not to deprive the states of authority to grant power to bridge such streams, or to render lawful all bridges previously built without authority, but simply

to create an additional and cumulative remedy to prevent such structures, although lawfully authorized, from interfering with commerce. Affirmed.

Mr. Justice BREWER concurs in the result.

(165 U. S. 370)

BURLINGTON GASLIGHT CO. v. BUR-
LINGTON, C. R. & N. RY. CO.
(February 15, 1897.)
No. 173.

PUBLIC LANDS-TOWN SITES-RESERVATIONS FOR
PUBLIC USE-RIGHTS OF LOT OWNERS-
INJUNCTION.

re

1. Pursuant to the directions of the acts for platting certain towns on public lands in Iowa (5 Stat. 70, 178), a strip of land 200 feet wide along the river front of Burlington was served for highways and other public uses. By the act of 1853 (10 Stat. 157), congress granted to the city these reserved lands, with accretions, especially declaring that the grant was only a relinquishment of the rights of the United States, and should not affect rights of third parties. Held, that this act merely transferred to the city the fee in the reserved strip with full control over it, subject only to the state laws, and to vested private rights.

2. The reservation, in a statute directing the platting of a town on public lands bordering the Mississippi river, of a strip 200 feet wide along the river front "for public use,' to "remain forever for public use, as public highways, and for other public uses" (5 Stat. 70, 178), is not a reservation for a highway alone, or for uses similar in character, but is for uses which would naturally tend to facilitate commerce, including wharves, storehouses, etc., and a railroad. 59 N. W. 292, affirmed."

3. The use of such lands for a railroad, being a "public use," within the meaning of the reservation in the grant, the extent of such use is for the determination of the town authorities, and cannot be enjoined by an abutting landowner, in the absence of special constitutional provisions, whatever may be his rights as to compensation. 59 N. W. 292, affirmed.

Mr. Justice Peckham, dissenting.

In Error to the Supreme Court of the State of Iowa.

On July 2, 1836, congress passed an act (5 Stat. 70) directing the survey and platting of certain tracts of land in Iowa into towns, among others the town (now city) of Burlington; the work to be done under the direction of the surveyor general of the public lands, with a proviso "that a quantity of land of proper width, on the river banks,

* and running with the said river the whole length of said towns, shall be reserved from sale, (as shall also the public squares,) for public use, and remain forever for public use, as public highways, and for other public uses." This act was amended on March 3, 1837 (5 Stat. 178), by transferring the duty of surveying, etc., from the surveyor general to a board of commissioners. Both the original act and its amendment provided for a public sale of the lots as surveyed and platted. In pursuance of these statutes the town of Burlington was platted, a strip of land 200 feet in width,

called "Front Street," being left between the eastern row of lots and the Mississippi river. In 1853 congress passed an act (10 Stat. 157) granting to the cities of Burlington and Dubuque "the land bordering on the Mississippi river, in front of said cities, reserved by the act of second July, eighteen hundred and thirty-six, for a public highway, and for other public uses, together with the accretions which may have formed thereto or in front thereof; to* be disposed of in such manner as the corporate authorities of said cities may direct."

The third section provided:

"That the grant made by this act shall operate as a relinquishment only of the right of the United States in and to said premises, and shall in no manner affect the rights of third persons therein, or to the use thereof, but shall be subject to the same."

The plaintiff is the owner of five lots facing on Front street, holding them by a regular chain of title from the original purchasers at the government sale, and occupying them for its gas manufacturing plant. For many years the defendant, under authority from the city, and apparently without objection, had been using a portion of this open ground between the lots and the river. It had constructed a retaining wall 36 feet east of the line of plaintiff's lots, and had graded and used all east of that for tracks, switches, and a freight house. Practically, therefore, the plaintiff was left a roadway in front of its lots of 36 feet in width. In 1892 the city council passed a resolution authorizing the railroad company to set this retaining wall back 15 feet, "the space said wall was set back to be used solely for the purpose of a wagon road." The effect of this was to narrow the roadway in front of plaintiff's lots to about 20 feet, the wagon road east of the retaining wall being for approach to a new freight house the defendant was proposing to construct between that space and the river. In pursuance of this authority the railway company commenced to make the excavation and erect the wall. Upon this plaintiff filed its petition in equity in the Des Moines county district court to enjoin the work. A decree in its favor in the district court was reversed by the supreme court of the state, and one entered dismissing the suit (91 Iowa, 470, 59 N. W. 292), to reverse which decree of dismissal plaintiff sued out this writ of error.

P. Henry Smyth, for plaintiff in error.

*Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.

The act of 1853 operated to transfer to the city of Burlington the fee to this strip along the river front, together with full control over it, subject only to the laws of the state and individual rights theretofore vested. Indeed,

independent of the act, it would seem that the United States has no control over the question of the uses to which the strip shall be put. U. S. v. Illinois Cent. R. Co., 154 U. S. 225, 14 Sup. Ct. 1015.

The use to which this land was reserved was not that of a highway alone, but "other public uses." This does not mean other public uses similar in character. The rule noscitur a sociis does not apply, for under the act of 1836 the reservation is not simply of this strip, but of public squares whose use is obviously not of the same character as that of the highway. Indeed, as well said by the supreme court of the state, "the fact that the land reserved was two hundred feet wide precludes the idea that it was intended for public travel alone." The further fact that the reservation was of a strip along the Mississippi river-a great navigable waterway-implies that the public uses to which this strip might be put included all public uses which would tend to facilitate commerce on such highway, including therein whbarves, storehouses, etc.

Land devoted to the use of a railroad is devoted to public use, and under the settled law of Iowa a common highway may be used by a railroad without further compensation to adjoining landowners. Barney v. Keokuk, 94 U. S. 324, 341, and cases from the supreme court of Iowa cited in the opinion.

The public having control over a highway may determine the manner in which it shall be improved, and, as a general rule, such improvement cannot be enjoined by an abutting lot or landowner, whatever may be his right to compensation growing out of the injury which such manner of improvement may bring to his property. This being true of ordinary highways, a fortiori is it true in respect to this property, which was not reserved for a highway alone, but for other public uses.

It does not appear that the plaintiff was pecuniarily damaged. The supreme court of Iowa said in its opinion that "there is not one word in the evidence showing that the plaintiff would be damaged in any sum of money by the proposed change." Whether there be any damage or not, or whether it be true that the plaintiff, having suffered pecuniary injury, is entitled to compensation therefor, its right, if any, is limited to the matter of compensation, and does not, in the absence of constitutional provisions,-like those, for instance, found in the constitution of Illinois,-entitle it to an inJunction to restrain the proposed change.

The use of this strip for railroad purposes being a public use, and within the authority granted by the original reservation, the extent of that use is a matter for determination by the public authorities, and cannot be restrained by the plaintiff, an adjoining lot owner, whatever may be its rights to compensation for the injury to its lots. We see no error in the decision of the supreme court of the state, and it is affirmed.

Mr. Justice PECKHAM dissenting.

(165 U. S. 373)

DAVIS v. UNITED STATES.
(February 15, 1897.)
No. 577.

HOMICIDE-EXPERT EVIDENCE-CROSS-EXAMINA

TION-INSTRUCTIONS.

1. After a witness has once qualified himself as an expert, and given his own professional opinion in reference to what he has seen and heard, or upon hypothetical questions, it is then within the court's discretion to limit further interrogatories as to what other scientific men have said on such matters, or in respect to the general teachings of science thereon.

2. On a question of sanity, it is within the limits of proper cross-examination to permit a medical expert to be asked, "You think, from your experience, from your conversation with him, that he killed the man because he threatened his life?" and to receive the answer, "Well, in part; and because he thought his own life was in danger, and because he thought he had the right to destroy this menace to his life."

3. Where, if defendant was sane, and responsible for his actions, the evidence furnishes no suggestion of any degree of homicide less than murder, a requested charge on the subject of manslaughter is properly refused.

In Error to the Circuit Court of the United, States for the Western District of Arkansas. On October 13, 1894, defendant was indicted in the circuit court of the United States for the Western district of Arkansas for the crime of murder. A trial being had, he was found guilty, and sentenced to be hanged. This judgment was reversed by this court on the ground of error in the instructions of the court in respect to the matter of insanity. Davis v. U. S., 160 U. S. 469, 16 Sup. Ct. 353. A second trial was had, which resulted in a similar sentence, to review which this writ of error has been sued out.

The circumstances of the homicide were briefly these, and in respect to them there was no dispute: The deceased and defendant had a misunderstanding in regard to the making of a sugar cane crop which the defendant was making for the deceased on land rented from him. About a week thereafter, and on September 18, 1894, the defendant took a gun, and slipped up to near where the deceased was at work picking cotton, shot and killed him while so at work, and while unarmed, and doing nothing towards harming defendant. He then ran away from the place where the shot was fired to the nearest town, and surrendered himself to the officers, telling them he had killed the deceased, and detailing the circumstances. Asst. Atty. Gen. Dickinson, for the United States.

Mr. Justice BREWER, after stating the* facts in the foregoing language, delivered the opinion of the court.

The principal defense presented on this trial, as on the former, was insanity. Indeed, the circumstances of the homicide were such as to preclude any other. The deceased, peacefully at work, unarmed, and making no demonstrations against the defendant,

*376

was shot and killed by the latter, and this in consequence of a dispute more than a week old. The act thus done, if done by a man fully responsible for his actions, was unquestionably murder in the first degree. Counsel for defendant have filed no brief and made no argument. With the trial in the circuit court, suing out a writ of error, and filing assignments of error, their connection with the case ceased. If this were a civil case, undoubtedly, under rule 16 of this court, the writ of error would be dismissed, or the record opened, and an affirmance ordered without examination. And if it were a criminal case of small importance, it is probable that the same disposition would be made; but as the offense charged, and of which the defendant was convicted, is murder, and the punishment death, we have felt it to be our duty to carefully examine the record, with all the assignments of error, in order to see that no injustice has been done the defendant. In this examination we have had the assistance of a brief prepared by the assistant attorney general, in which the views of the government are fully presented.

The first nine assignments of error refer o matters transpiring in the introduction of :estimony. Some of the questions presented by those assignments have been already determined by this court in prior cases, and need not, therefore, be noticed in this opinion. The others are as follows: Several lay witnesses were called, who testified as to their acquaintance with the defendant, and their opinion as to his sanity. He also called two medical witnesses, Dr. J. C. Amis and Dr. T. J. Wright, each of whom had seen him after his arrest, and during his confinement in jail, and had observed his conduct, actions, and demeanor. While the record does not contain a recital of all the testimony of these witnesses, enough is disclosed to show that the court permitted full inquiry of each as to what he had seen or heard of the actions and sayings of defendant; permitted each also to give fully his opinion as to the mental condition of defendant, and his belief as to the latter's knowledge of right and wrong, and his ability to distinguish between them. Hypothetical questions were also put involving all the circumstances of the homicide, and the prior and subsequent conduct and appearance of defendant, and their answers received to such questions.

In the course of his testimony, Dr. Amis stated that defendant "would sit down on his spittoon, and gaze down on the floor as if looking at some object, when none was there, manifesting no interest in anything that was going on; that, although violently ill, he was indifferent and unconcerned during his illness, was never worried about his condition; never saw any change in his expression, but he would sit and gaze in a dreamy, melancholy way, with his mouth

open and under jaw hanging down, having a vacant, meaningless stare, his face expressionless, just a blank." In reference to this matter he was subsequently asked this question: "What does medical science say as to that meaningless, vacant stare, and the lower jaw hanging down in a listless way? What does medical science teach as to that?" -which was objected to, and the objection sustained, and exception taken. No ground of objection was stated, and no reason given for sustaining the objection. It would seem probable that, inasmuch as the witness had shown himself qualified to testify as a medical expert, as he had stated all that he had seen and heard, and given his own expert opinion thereof, the court deemed it improper or unnecessary to enter into any examination as to what the witness thought medical science would say of defendant's conduct and appearance. It may have been because the matter had been sufficiently brought out in the prior testimony of the witness, but, probably the reason we have suggested is the correct one, and in that view we are of the opinion that the ruling furnishes no ground for disturbing the judgment. After a witness has once qualified himself as an expert, and given his own professional opinion in reference to that which he has seen or heard, or upon hypothetical questions, then it is ordinarily opening the door to too wide an inquiry to interrogate him as to what other scientific men have said upon such matters, or in respect to the general teachings of science thereon, or to permit books of science to be offered in evidence. Collier v. Simpson, 5 Car. & P. 73. At any rate, the trial court must have some discretion as to the limit to be placed in any given case upon the extent to which the expert testimony may be carried; and when, upon direct examination, the opinion of the witness is fully disclosed, we think it cannot be said that the court erred in declining to permit on the same direct examination an inquiry into what is in some aspects both collateral and hearsay.

Again, when Dr. Wright was on the stand, and had finished his direct examination, he was asked by the district attorney the following question: "You think, from your experience with him, from your conversation with him, that he killed the man because he threatened his life; your idea is that he killed the man because he threatened his life?"-which question was objected to, the objection overruled, and the witness permitted to answer. The answer which he gave was: part; and because he thought his own life was in danger, and because he thought he had the right to destroy this menace to his own life." We think this was clearly within the proper limits of cross-examination, and therefore the objection was properly overruled.

"Well, in

The remaining 51 assignments run to the charge of the court, and to the refusal to give a series of special instructions asked by de

*378

628.

fendant. It would be a waste of time to attempt to notice each assignment separately, although we have examined all. On the first trial the court had charged the jury that every man was presumed to be sane; that insanity was a special defense, and that to make out such defense it must be established to the reasonable satisfaction of the jury, and that the burden of proof thereof rests with defendant. This court was of opinion that this was not the correct rule of law; that, while it was true that every man is presumed to be sane, yet whenever, by the testimony, the question of insanity is raised, then the fact of sanity, as any other essential fact in the case, must be established to the satisfaction of the jury beyond a reasonable doubt. On the second trial (the record of which is now before us for consideration) the court charged the law in accordance with the rule laid down by this court,-quoting the very language of our opinion, and also defined what was meant by insanity, in language which, under the circumstances of this case, was in no degree prejudicial to the rights of the defendant, as follows:

"The term "insanity,' as used in this defense, means such a perverted and deranged condition of the mental and moral faculties as to render a person incapable of distinguishing between right and wrong, or unconscious at the time of the nature of the act he is committing, or where, though conscious of it, and able to distinguish between right and wrong, and know that the act is wrong, yet his willby which I mean the governing power of his mind—has been otherwise than voluntarily so completely destroyed that his actions are not subject to it, but are beyond his control."

Although the court, in addition to this specific language, enlarged upon the question, its charge in reference to the matter of insanity covering several pages of the record, and containing quotations from many adjudged cases, we find nothing which qualifies or restricts the definition as above quoted.

Seventeen special instructions were asked by defendant, all of which, except the last, were in respect to the presumption of innocence, reasonable doubt, and insanity,-matters which the court had fully treated of in the general charge; and of course repetition or restatement in the language of counsel was unnecessary.

The last instruction asked was in reference to manslaughter. But under the evidence there was no occasion for any statement of the law on this. There was no testimony to reduce the offense, if any there was, below the grade of murder. If the defendant was sane, and responsible for his actions, there was nothing upon which any suggestion of any inferior degree of homicide could be made, and therefore the court was under no obligation (indeed, it would simply have been confusing the minds of the jury) to give any instruction upon a matter which was not really open for their consideration. Sparf v. U. S., 156 U. S.

51, 63, 15 Sup. Ct. 273; Stevenson v. U. 8., 162 U. S. 313, 315, 16 Sup. Ct. 839.

These are all the matters presented by the assignments of error, and all the questions of any importance disclosed by the record. We find no error in the rulings of the court, and its judgment is therefore affirmed.

(165 U. S. 330) DISTRICT OF COLUMBIA ▼. JOHNSON. SAME v. SHECKELS et al. (February 15, 1897.)

Nos. 617, 618.

CLAIMS AGAINST DISTRICT OF COLUMBIA—INTEREST -BOARD AND CONTRACT RATESCOUNTERCLAIM.

1. Act Feb. 13, 1895, requiring the court of claims to allow claimants, under Act June 16, 1880, for work done under contract with the District of Columbia the rates established by the board of public works, instead of those fixed by the contract, in effect confers upon the claimants a gratuity to the amount of the difference between the contract and the board rates, which becomes due, and therefore bears interest, only from the passage of the act.

2. In an action by a claimant prior to Act Feb. 13, 1895, the referee allowed the District, as a counterclaim, the excess of board rates paid claimant over the contract rates. Held, that the act had the same effect as payment of the counterclaim, and therefore the interest thereon could not be offset against a recovery under the act.

Appeals from Court of Claims.

Asst. Atty. Gen. Dodge and Robert A. Howard, for appellant. J. J. Johnson, for appellee Johnson, administrator. W. L. Cole, for appellees Sheckels et al

Mr. Justice PECKHAM delivered the opinion of the court.

These are appeals from the court of claims which gave judgments in favor of the appellees in actions commenced by them in De cember, 1880, pursuant to the provisions of the act of June 16, 1880, entitled "An act to' provide for the settlement of all outstanding claims against the District of Columbia, and conferring jurisdiction on the court of claims to hear the same, and for other purposes." 21 Stat. 284; 31 Ct. Cl. 472.

The actions relate to work done under various contracts with the authorities of the District of Columbia between 1871 and 1876. These contracts were a few among a very large number of others, entered into with the authorities of the District of Columbia by many different persons, and relating to improvements then in contemplation, and partly in course of completion, in the city of Washington. Those in question here were originally made with one Peter McNamara, in or about the year 1872, for work in the nature of grading, sewering, and filling various streets in that city. The contracts were in writing, and stated the spe cific prices which were agreed upon for the various items of work to be performed under the contract.

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