ESCANABA

& LAKE MICHIGAN TRANSP.CO.V. CITY OF CHICAGO.

777

ESCANABA

&

LAKE MIOHIGAN TRANSP. Co. V. CITY OF CHICAGO.

(Uircuit Oourt, N. D. illinois. July 7, 1882.)
CoMMERCE-DRAW-BRIDGES NOT A NUISANCE-CITY REGULATIONS CONSTITUTIONAL.

A city ordinance regulating the opening and closing of bridges over rivers within the limits of Chicago, so as to permit the alternate passage through of vessels, and the passage over the bridges of teams and persons, and which also passing vessels, beprovides for the closing of the bridges altogether, tween the hours of 6 and 7 A. M. and 5:30 and 6:30 P. M., is not in conflict with the commerce clause of the constitution of the United States.

Oook tt Upton, for complainant. F. S. Winston, Jr., and Mr. Ryerson, for defendant. HARLAN, Justice, (oraUy.) The complainant is a corporation. of the state of Michigan, owning a line of freight propellers, between Lake Superior and the docks of the Union Iron paIlY, located on the south fork of the south branch oftha ,chicago river, near Thirty-second street, in the city ofChicago. ' Under its old charter the city of Chicago had the power "exclusively to erect and construct, or to permit or cause or procure to be erected and constructed, float, pivot, or draw-bridges over the navigable waterswithin the jurisdiction of said city, and keep the same in repair; said bridges to have draws of suitable width," By the new city charter of the city is given power "to construct and keep in repair bridges, viaducts, and tunnels, and to regulate the use thereof;" also "to deepen, widen docks, cover, wall, alter, or change the channel of water-courses," and; further, "to make regulations in regard to the use of harbors, towing of vessels, opening and passing the bridges." By an ordinance of the city it is provided, among other things, as follows:
"Sec. 984. Between the hOUfS of 6 and 7 in the morning, and half past 5 and half past 6 o'clock in the evening, Sundays excepted, it shall be nnlawful to open any bridge within the city of Chicago. " Sec. 985. During the hours between 7 o'clock in the morning and half past 5 o'clock in the evening it shall be unlawful to keep open any bridge within the city of Chicago, for the pUrpose of permitting vessels or other craft to pass through the same, for a longer period, at anyone time, than 10 minutes, at the expiration of which period it shall be the duty of the bridgetender or other person in charge of the bridge to display the proper signal and immediately close the same, and keep it closed for fully 10 minutes, for such persons, teams, or vehicles as may be waiting to pass over. If so much time shall be required when the said bridge shan again be opened, [if necessary for

778

FEDERAL REPORTER.

vessels to pass,] for a like period, and so on alternately, [if necessary,] during the hours last aforesaid; and in every instance when any such bridge shall be opened for the passage of any vessel, vessels, or other craft, and closed before the expiration of 10 minutes from the time of opening, said bridge shall then, in every such case, remain closed for fully 10 minutes, if necessary, in order to allow all persons, teams, and vehicles in waiting to pass over said bridge. "Sec. 986. Bridge-tenders, or persons in ch;arge of the bridges, shall not close tllesame against vessels seeking topass through until passengers, teams, or vehicles have been delayed fully 10 minutes by the bridges being opened."

The object of the present suit by complainant is to test the validity of the foregoing ordinance. The prayer of complainant is that upon final hearing the court will decree that the bridges, and each and everyone thereof, erected across the Chicago river and across the north and south branches, and the south fork of the south branch, when closed and kept closed for the time prescribed by said ordinance, constitute tnaterial obstructions to the navigation of said river and the said branches thereof; that each of said bridges so closed and to the citizens of the states of illinois and kept closed is a Michigan, as well as other states, and particularly to the complainant; that the ordinances so requiring the closing of said bridges be declared illegal and void; and that the said Harrison-street bridge, and the other bridges south and south-west thereof, across the south branch and the south fork of the south branch, and the piers on which they rest and all material used therein, which obstructs the free navigation of said river, are nuisances to be abated and removed. The complainant also prays that the city may be decreed to open the bridges on the approach of vessels desiring to pass the same, and keep the s.ame open for suoh time and in such manner as not to obstruct the free navigation of the Chicago river and its said branches. This case was heard before the district judge and myself upon the pleadings and proof. Justice Harlan announced that the press of business had prevented the preparation of any formal opinion covering the numerous and important questions discussed by counThat may hereaftex be done. But, as his brother Blodgett and himself had reached a conclusion entirely satisfactory to themselves, and which was not likely to be changed' by further consideration of the case, and that parties,if they desire to take the Case to a higher court, tnay not be delayed if such be the,ir purpose, he woule. now announce that, in their opinion, the ordinance of the city is not in violation of the constitution of the United States or of any act of

IN RE ORl'iE.

congress, and that as there is no cause of action against the eity, ttie bill would be dismissed.
NOTE.-A state may authorize the construction of a draw-bridge across a navigable stream. Gibbons v. Ogden, 9 Wheat. 203; Pennsylvania v. Wheeling, etc., Bridge Co. 13 How. 607; Silliman v. Hudson Riv. Bridge Co. 1 Black, 582; 4 Blatchf. 74,395; Albany Bridge Co. 2 Wall. 403; Silliman v. T. W. T. B. Co. 11 Biatchf.288; Palmer v. Com'rs of Cuyahoga County, 3 McLean. 226: Pennsylvania v. Rensselaer & S. R. Co. 15 Wend. 113.--'-[ED.

In

9'6

ORNE, Ba.nkrupt.-

(Oircuit Oourt, E. D. PennByZflania. April 28,1882.)
LANDLORD AND TENAN'l'-EvIOTION-BuRRENDER-BANltRUPTCY-J)AMAGEB FOR BREACH OIl' COVENANT TO PAY RENT.

A lessee, whose goods were under distraint for rent, made an assignment for the benefit of his creditors. The assignee, while disclaiming any interest in the lease, made an arrangement with the lessor by which the distress was withdrawn, he promising to pay the rent then in arrear, and all rent which should accrue during his occupancy of the premises, and to inform the lessor when he would vacate. About two months afterwards he vacated the premises, sending the key to the lessor, and paying the rent up to that day. The les80rthereupoli re-entered and rented the premises to other parties for a less rent. Held, that there was neither an eviction of the tenant nor a surrender of the lease, and that the lessor was entitled to prove against the lessee's estate in bankruptcy for damages for the breach of the covenant in the lease to pay the subsequentlyaccruing rent. .

Appeal from the order of the district court allowing proof in bankof the claim of the trustees under the will of Joshua Francis Fisher against the bankrupt's estate. The facts on which the claim was founded, as reported by the register, Sussex D. Davis, were as follows:
The bankrupts by a written lease rented the store 626 Chestnut street, adel, hi I" from the trustees Joshua Francis Fisher, deceased, for two years from January 1,1876, at a yearly rental of $8,500. The lease contained, inter alia, the following clauses: "And the lessees for themselves, their legal representatives and assigns, do hereby covenant and agree with the lessors, their legal representatives and assigns, to promptly pay the rent hereby reserved on the day, and times herein . . specified. · · I/< "Provided always, and these presents are on condition, that the lessees shall faithfUlly perform said covenants,and on breach of any of them it shall be lawful for the lessors to re-enter on the premises as of their former estate.

of

"Reported by Frank P. Prichard, Esq., of the Philadelphia bar.