I concur in the judgment announced but do not concur in all the reasons assigned in support of the judgment. I do not think that the acts of September 19, 1890 (26 U. S. Stat. at L. 426), and of March 3, 1899 (30 U. S. Stat. at L. 1121), which conferred upon the secretary of war jurisdiction in casés of this character contravene the provisions of the federal constitution. The act of the secretary is merely an administrative act in carrying into effect the act of congress, and if congress could, by special act, constitutionally endow the secretary *230of war with power to remove a particular obstruction from a navigable river, why could not it empower him by a general. act to remove all obstructions as they arise? It is true it gives the power to The secretary to determine what obstructions to the free navigation of The river are unreasonable.
The same principle applies to all the administrative department. 'There must be the exercise of judgment. If the departments were deprived entirely of the exercise of judgment, they would be ineffective to carry into execution the acts of congress. To say that every time an obstruction is placed in a navigable river or that a bridge that, by reason of the enlarged use of the river, has become such an obstruction that it materially interferes with the free navigation of the river, or possibly entirely obstructs it, could not be removed except by a special act of congress or a proceeding in court for that purpose, does not seem to me to be tenable.
The only question that the secretary can decide is:
Is the bridge an unreasonable obstruction to the free navigation of the river? If he believes it is from the knowledge and information he has, then his ordering its removal is a mere administrative act. Whether it is there by legal right or not is a judicial question that must be determined upon a hearing in the courts, as provided for in the act of congress, and neither congress nor the secretary could finally determine that question. If found to be there under a legal right then the government must make compensation before it can be removed, and this right to appeal to the courts as we have said is fully provided for by the act of congress. United States v. Moline (City), 82 Fed. Rep. 592.
But the question in this ease is under the admitted facts: Was there any obstruction in the Ashtabula river to be removed? If as a matter of fact there was no obstruction in the river — and that is admitted as far as this action is concerned — then there was nothing for the secretary to base his order upon. His authority was to order the removal of an obstruction and yet the allegations of the petition as stated by my learned brother, in his very able opinion, clearly shows there was no obstruction and that by a combination between the representatives of the government and the county commissioners under a pretended order of the secretary of war, they, the commissioners, propose, except they are restrained by the taxpayers of the county, to pull down a pier and dredge out the space so occupied by the pier to a depth of twenty-one feet, at a point that was never in the river and therefore could not obstruct the river or navigation upon the river.
*231As shown by the petition this bridge was built in 1889 by the -county authorities under the direction of the state. Land was purchased by the county on which to place the pier. This land nor the pier was ever within the boundaries of the river or within the harbor line. There is no complaint about the draw or the bridge proper. It is of sufficient height and breadth, but what the order requires is, that the pier, which is concededly upon the county’s own land not within the boundaries of the river, and in no manner obstructs navigation further than a building upon the bank of the river, and entirely without its boundaries, would obstruct navigation, is ordered removed and the spacé dredged out to the depth of twenty-one feet in order to widen the river or straighten it.
The petition further avers that the • commissioners have promised and agreed under this so-called order of the secretary of war to remove this pier east fifty feet, dredge out the space and. further remove the west abutment opposite the pier, which stands on the bank of the river ■at the edge of the water fifty feet east into the river, fill in the intervening space between the bank of the river, and the west abutment and build an entirely new bridge of a different character all at the expense of the county, of $200,000 and all without tendéring any compensation to the county.
This is all conceded by the demurrer. For what purpose is it done ? It is said to straighten the river; that there is an elbow in the river and that the vessels now are so large that they cannot get up the river withr out this is done. Has the secretary of war any authority to require the county of Ashtabula to straighten the river at its own expense, or have the county commissioners any authority to agree with the government to carry out such a requirement? We think not, and that the taxpayers have a right to insist that the commissioners must stand upon their legal rights against such an arbitrary and illegal order, and if, by fraud or from fear, they refuse, that they may by the order of this ■court be required so to do.
It is immaterial what is the language of the order.' These are the averments of the petition which are admitted by the demurrer to be trae.
Under these circumstances the secretary of war under the act of congress, under which-he claims to be acting, has no authority to make •such an order, and to agree with the county commissioners to carry' it into effect in the manner proposed. It would be a fraud upon the *232county. Tbe commissioners still threaten to proceed in the manner stated, and they should be enjoined from so doing. Had the commissioners stood upon their rights, they could have contested all these questions in the federal courts. If informations were made or indictments found against them and the facts were as admitted by them in this suit, they could not possibly have been convicted; neither would the government be permitted by the federal courts to remove the pier and the bridge for the purpose of straightening the river until it paid the county full compensation for all damages that would result from the proposed improvement. United States v. Moline (City), supra. It is claimed that the act of March 24, 1904 (97 O. L. 53), of our general assembly, confers upon the commissioners authority to act as they propose to do. This act could only authorize the commissioners to act in a legal manner, if it could do that; as it was enacted no doubt for this special case, its constitutionality inight well be doubted. However, that might be, it does not authorize the commissioners to make an illegal and fraudulent agreement and combination with the officers of the government, to spend $200,000 of the people’s money.