mation. A like judgment was rendered against the Wabash Railroad Company.

The assignments of error are very numerous. But we feel constrained to say that no one of them causes a serious doubt as to the correctness of the judgment sought to be reviewed. This court has heretofore held, upon full consideration, that Congress had full authority, under the Constitution, to enact § 18 of the act of March 3, 1899, c. 425, 30 Stat. 1153, and that the delegation to the Secretary of War of the authority specified in that section was not a departure from the established constitutional rule that forbids the delegation of strictly legislative or judicial powers to an executive officer of the Government. All that the act did was to impose upon the Secretary the duty of attending to such details as were necessary in order to carry out the declared policy of the Government as to the free and unobstructed navigation of those waters of the United States over which Congress in virtue of its power to regulate commerce had paramount control. It is also firmly settled that such alterations of bridges over the navigable waters of the United States as the Chief of Engineers recommended, and as the Secretary of War required to be made after notice and hearing the parties interested, was not a taking of the property of the owners of such bridges within the meaning of the Constitution. Union Bridge Company v. United States, 204 U. S. 364; Monongahela Bridge Co. v. United States, 216 U. S. 177; Field v. Clark, 143 U. S. 649; Buttfield v. Stranahan, 192 U. S. 470.

What the Secretary did in relation to the bridge here in question seems to have been in substantial, if not in exact accordance with the statute. He was officially informed, through the Engineer Corps, that the complaints that came to him from many sources as to the Hannibal bridge were sufficient to require such action on his part as the statute authorized. He ordered a hearing, first causing notice to be given to the parties interested of the time and

place of the hearing. We cannot doubt from the record that the hearing was adequate and was fairly conducted. The result of the hearing was a recommendation, concurred in by the Chief of Engineers, that certain alterations of the bridge were demanded by the public interests. There was a second hearing, with a like result. Then the Secretary acted and directed the making of such alterations in the bridge as had been found to be necessary. Of the character and extent of those alterations the Bridge Company was notified by an official communication from the War Department. It is true that that communication was signed by the Assistant Secretary of War, and not by the Secretary himself. And that fact is relied upon to invalidate the entire proceeding. There is no merit in this objection. The communication signed by the Assistant Secretary shows, upon its face, that it was from the War Department and from the Secretary of War, and that the Secretary, without abrogating his authority under the statute, only used the hand of the Assistant Secretary in order to give the owners of the bridge notice of what was required of them under the statute. It is physically impossible for the head of an executive department to sign, himself, every official communication that emanates from his Department.

Equally without merit is the objection that the nature and character of the required alterations were not sufficiently indicated. This is a mistake. The communication from the War Department was full and adequate. The owners of the bridge could have had no reasonable doubt as to what was expected and required of them.

The defendants also insist that their bridge was constructed under the authority of a special act of Congress of July 25, 1866 (14 Stat. 244, c. 246), and that its maintenance, as constructed, is not affected by a subsequent general appropriation act, like the one of which the above § 18 forms a part. This view cannot be sustained. The

act of July 25, 1866, 14 Stat. 244, c. 246, expressly reserves the right to alter or amend it so as to prevent or remove all material obstructions to the navigation of said river by the construction of bridges. In the Union Bridge Case, above cited, it appeared that the bridge was required by the Secretary of War to be altered, at the expense of the owners. The point was made that the bridge having been originally erected under the authority of the State of Pennsylvania and without objection from the General Government, the power of the Secretary and of Congress did not go so far as the Government claimed. But this court said, 204 U. S., p. 400: "Although the bridge, when erected under the authority of a Pennsylvania charter, may have been a lawful structure, and although it may not have been an unreasonable obstruction to commerce and navigation as then carried on, it must be taken, under the cases cited, and upon principle, not only that the company when exerting the power conferred upon it by the State, did so with knowledge of the paramount authority of Congress to regulate commerce among the States, but that it erected the bridge subject to the possibility that Congress might, at some future time, when the public interest demanded, exert its power by appropriate legislation to protect navigation against unreasonable obstructions. Even if the bridge, in its original form, was an unreasonable obstruction to navigation, the mere failure of the United States, at the time, to intervene by its officers or by legislation and prevent its erection, could not create an obligation on the part of the Government to make compensation to the company if, at a subsequent time, and for public reasons, Congress should forbid the maintenance of bridges that had become unreasonable obstructions to navigation. It is for Congress to determine when it will exert its power to regulate interstate commerce. Its mere silence or inaction when individuals or corporations, under the authority of a State, place unreasonable obstructions in the waterways

of the United States, cannot have the effect to cast upon the Government an obligation not to exert its constitutional power to regulate interstate commerce except subject to the condition that compensation be made or secured to the individuals or corporation who may be incidentally affected by the exercise of such power. The principle for which the Bridge Company contends would seriously impair the exercise of the beneficient power of the Government to secure the free and unobstructed navigation of the waterways of the United States."

We have said enough to dispose of every essential question made in the case or which requires notice.

Judgment affirmed.

NORTHERN PACIFIC RAILWAY COMPANY v.

TRODICK.

APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.

No. 117. Argued April 11, 1911.-Decided May 15, 1911.

Land within place limits of the Northern Pacific Land Grant Act of July 2, 1864, c. 217, 13 Stat. 365, actually occupied by a homesteader intending to acquire title, did not pass by the grant but were excepted from its operation, and no right of the railroad attached to such lands when its line was definitely located. Nelson v. Northern Pacific Railway, 188 U. S. 108.

Where a bona fide settler was in actual occupation of unsurveyed lands at the time of definite location of the line, the land occupied was excepted from the grant; and if, before survey, he sold his improvements to one who also settled on the land intending to apply for title under the homestead laws of the United States, the claim of the latter is superior to that of the railroad company notwithstanding the original settler had no claim of record.

A settler in actual occupation before the location of the definite line of

the railroad can stand upon his occupancy until the lands are surveyed, and his claim cannot be defeated by the railroad assuming without right at a date prior to his application to assert a claim to the lands.

Under the act of May 14, 1880, c. 89, 21 Stat. 140, delay on the part of a homesteader in making application after survey cannot be taken advantage of by one who had acquired no rights prior to the filing; and so held, that where the Northern Pacific land grant had not attached on account of actual occupation, delay on the part of the settler in filing after survey did not inure to the benefit of the company.

Nelson v. Northern Pacific Railway Co., 188 U. S. 108, was not modified

by United States v. Chicago, Milwaukee & St. Paul Railway, 218 U. S. 233, as to the rights of bona fide settlers which attached prior to definite location.

Where, by error of law, the Land Office incorrectly holds a party is entitled to patent and issues it, the courts can declare that the patent is held by the patentee in trust for the party actually entitled to have his ownership in the lands recognized.

THE facts, which involve the rights of settlers on the public lands and those of the Northern Pacific Railroad Company under the act of July 2, 1864, are stated in the opinion.

Mr. Charles Donnelly, with whom Mr. Charles W. Bunn was on the brief, for appellants.

Mr. Thomas J. Walsh for appellees.

MR. JUSTICE HARLAN delivered the opinion of the court.

In this suit, involving the title to the southeast quarter of section 35, township 15 north, range 4 west, in the State of Montana, the defendants McDonald and Auchard, now co-appellants, claim title under patent issued by the United States to the Northern Pacific Railway Company, successor to the Northern Pacific Railroad Company to which a grant of lands was made by the act of Congress of VOL. CCXXI-14