dissenting:
I do not concur in the conclusion of the foregoing opinion. The United States government has assumed control of all navigation and navigable rivers, including the Chicago river and its branches, and Congress has invested in the Secretary of War the sole jurisdiction of removing obstructions to navigation. Section 18 of the Rivers and Harbors act of March 3, 1899, provides, among other things, that whenever the Secretary of War shall have good reason to believe that any railroad or other bridge now or hereafter constructed over any of the navigable waterways of the United States is -an unreasonable obstruction to the free navigation of such waters, on account of height, width or otherwise, it is the duty of the secretary (1) to give the parties reasonable opportunity to be heard; (2) to give notice to persons interested in controlling such Ipridge to alter the same so as to make navigation reasonably free and unobstructed; (3) to give notice and specify the changes recommended by the chief engineer; and (4) the time in which such changes shall be made.
■Regardless of the technical power of the State officials or courts in matters of this kind, it seems to me that in order to reach any practical result any action taken with reference to this bridge must be sanctioned and approved by the Federal government. For a State court to hold this bridge to be an unlawful structure would be absolutely to ignore the positive provisions of said section 18 which specify the procedure to be followed when a bridge is claimed to be an unreasonable obstruction to navigation, and Congress, through the Secretary of War, is responsible for the location of this bridge. The Federal statute provides a way through which any defects in the construction may be rectified. Where the Federal statute points out a procedure to be followed, it seems to me such procedure should be followed and that there is no authority to adopt any procedure in lieu of the Federal one.
The Metropolitan Elevated Railway Company, though granted permission by the State authority to construct this bridge, was not permitted to construct it until it received the approval of the Secretary of War. Such approval was refused until said company or the city had reconstructed the VanBuren street bridge so as to make it a bascule instead of a center-pier bridge; and the sanitary district was also required, before the approval by the Secretary of War was granted to build this bridge, to build by-passes around the Adams, Jackson, VanBuren and Madison street bridges and the Metropolitan Company’s bridge. The sanitary district accepted a permit from the Secretary of War, on the conditions fixed by him, to reverse the flow of the Chicago river and of the south branch, and also accepted a permit from the Secretary of War to widen the south branch to 200 feet on the conditions fixed in said permit. All changes in the south branch affecting the navigation of the Chicago river have been made under the authority and by the permit of the Federal authorities since the sanitary district was organized. It has been generally understood and accepted by all parties interested that the whole question relating to the navigation of the Chicago river was above and beyond State control and wholly in Federal control. There is abundant authority showing that when the Federal government has taken charge of the question of navigation in any river, whether located entirely within, or partly within and partly without, the boundaries of a single State, the Federal authorities will keep entire charge of navigation in said river. (Union Bridge Co. v. United States, 204 U. S. 364; Monongahela Bridge Co. v. United States, 216 id. 177; Hannibal Bridge Co. v. United States, 221 id., 194; Louisville Bridge Co. v. United States, 242 id, 409; see, also, City of Chicago v. Law, 144 Ill. 569.) In the last case it was held by this court that before authority should be granted to change the channel of the south branch of the Chicago river by the city of Chicago such change must have the approval of the Secretary of War.
In my judgment any attempt by the State authorities to regulate this question by this or any other proceeding will only complicate matters and not help to bring about any practical solution of the problem. In order to reach practical and satisfactory results it must be through the agency of a single authority, and that authority, under the Federal statutes on this question, must be subject to the Federal jurisdiction as to the navigation of this river. If the Federal authorities refuse to sanction the finding of the State courts on this question or fail to recognize the authority of the State courts as to this decree, there is no process known to our jurisprudence to compel the Secretary of War to conform to or follow the finding of the State courts. If there be a conflict of authority between the Federal and State officers, the Federal authority has always been held supreme and .exclusive. See Escanaba Transportation Co. v. Chicago, 107 U. S. 678; Miller v. New York, 109 id. 385.
I do not think that the reasoning in People v. West Chicago Street Railroad Co. 203 Ill. 551, West Chicago Street Railroad Co. v. People, 214 id. 9, or West Chicago Street Railroad Co. v. People, 201 U. S. 506, is in any way in conflict with the conclusion, in view of the special facts in those cases, that the Federal authority must be held in this case to be supreme and exclusive. This being so, I think the chancellor on this ground, alone, was justified in dismissing the information in the trial court.