Appeal from the District Court of the United States for the Western District of Wisconsin; Ferdinand A. Geiger, Judge.
Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
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 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 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 ...