Henry Stanbery to Ulysses S. Grant, 7 January 1868

January 7, 1868. General U. S. Grant, U. S.A. Secretary of War, ad interim Sir: I have considered the two Drafts of agreements proposed to be entered into with the C. R.I. & P. RR. Co. enclosed to me in your letter of the 11th ultimo, and have the honor to state the conclusions at which I have arrived. These Drafts are two in number, and for convenience of reference are marked "A" and "B." All the legislation applicable thereto is recited fully in draft "A," and will now be reviewed. The Act of June 27, 1866, (Less. Acts, 39th Congress, 1st Sess. p. 75,) authorizing the Secretary of War to change the location of the Railroad and bridge across Rock Island and the Mississippi river, empowers him to grant to the Railroad company such pecuniary aid in effecting this change, and establishing on the new route a wagon‑road for the use of the Government to connect said Island with the cities of Davenport and Rock Island, as shall be adjudged fair and equitable by the Board of Commissioners created under Act of April 19, 1864 (13 Stat. 50) and may be approved by him. The Board of Commissioners have acted upon the matter, and by their report adjudge it fair and equitable that the Government should build a bridge across the main channel of the river, and grant to the Company the free use thereof, as well as a right of way across the Island on condition that the latter pay "half the cost of the superstructure of the bridge"—the Company furthermore to remove its present track across the Island, and the old bridge and piers from the main channel, etc. Here, it will be observed that the pecuniary aid which the Act of 1866 authorizes the Secretary to grant towards effectuating the purposes aforesaid, is what may be deemed fair by the Board, and approved by him—the concurrence of both being necessary. The aid recommended by the Board is limited to the amount necessary to erect a bridge of the character described over the main channel, less half the cost of its superstructure, which latter is to be borne by the Company, in consideration of the free use of the bridge, and the right of way across the Island. The superstructure is understood to include all above the foundation, and accordingly would embrace the masonry of the piers and abutments above their several foundations, as well as the framework which rests thereon. But though the Secretary is authorized to grant such pecuniary aid, still, without an appropriation of money for the purpose, the aid which he might contract to give could not be made actual or substantial. However, by the Act of March 2, 1867, (Less. Acts, 39th Cong. 2d Sess. p. 485,) Congress has appropriated $200,000 for the erection of the bridge referred to—but with a proviso declaring that the ownership of the bridge shall be in the United States, and that the Railroad Company shall have the right of way over the same, upon condition that it agree to pay and secure to the United States, 1st, half the cost of the bridge—2d, half the expenses of keeping it in repair, etc. The effect of this Act is to narrow the extent of pecuniary aid recommended by the Board of Commissioners, and which the Secretary was authorized to grant by the terms of the Act of 1866. The Board limit​ the company to payment of half the cost of the superstructure, and are silent on the subject of keeping the bridge in repair; while the Appropriation Act of 1867 requires the company to secure the payment of half the cost of the entire bridge, and also half the cost of keeping it in repair. But Congress could adopt, modify, or reject the recommendation of the Board, or action of the Secretary, in regard to this matter; any arrangement entered into under the former statute calling for the expenditure of public money, and thus requiring further legislation to carry it into effect, being necessarily subject to the revision and control of that body. From the foregoing it will be seen that the only pecuniary aid which is now capable of being either granted for, or applied to, any of the purposes above mentioned, is that appropriated by the Act of March 2, 1867,—and this cannot be diverted to any object other than the one therein named. The drafts of the proposed agreements will now be examined with reference to the foregoing Legislative provisions: Draft "A." This draft contains stipulations on the part of the Company, comprehending 1st, the relocation and construction of its railroad across the Island, on the way or route to be designated and granted by the Secretary of War—and also the erection of a bridge across the slough on the east side of the island;—2d, the removal of its present track across the Island, together with the removal of its present bridge, and the piers and abutments thereof;—3d, the release of all claims upon the Government for damage, by reason of the change of location of its railroad upon said island. On the part of the United States, the stipulations include,—1st, the grant of a permanent location and right of way on and across the Island, to be designated by the Secretary of War;—2d, the payment to the Railroad Company within five years from January 1, 1867, of one half the cost of the masonry for the bridge across the main channel. I am unable to find any authority for so much of this agreement as provides for the proposed payment. It would seem that, under the Act of 1866, the Secretary of War is not empowered to grant pecuniary aid for any of the purposes described therein, otherwise than upon the recommendation of the Board of Commissioners approved by himself; and their recommendation of aid does not extend to either of the objects designated in this draft. It is also very obvious that the Appropriation Act of 1867, does not embrace them. Draft "B." By the terms of this draft, the Company agree to pay to the United States within five years from January 1, 1867, one half of the entire cost of building a bridge across the main channel, and also one half of the entire expenses of keeping the same in repair perpetually;—and the Government agrees to build a bridge in accordance with the requirements of the Act of July 25, 1866, (Sess. Acts, 39th Conf. 1st Sess. p.244,)—grant a permanent right of way to the company across the Island, etc. It is further stipulated that the Company shall have the free use of the bridge, when constructed, for the purposes to transit, but without any claim to the ownership thereof; that the ownership shall be and remain in the United States, with the power of granting the right of transit to any other Railroad, when the interests of the United States require it, provided such grant shall not interfere with the free use of the bridge by said Company; but that no such grant shall be made unless upon the condition that such other railroad shall pay to the said Company a sum equal to one half of what said Company shall have paid for the erection and maintenance of the bridge, and to the Government a sum equal to one‑twelfth of the entire cost of its construction and maintenance. Here is a provision which imposes upon the Government conditions respecting the future use of the bridge manifestly in derogation of rights incident to its ownership. The Act of 1867 declares that the ownership of the bridge shall be and remain in the United States; but that the Company shall have the right of way over it, and the free use thereof, for the purpose of transit, on the following terms, viz., that before any money is expended by the government, the company shall agree to pay and shall secure to the United States half the cost of the bridge, and half the expenses of keeping it in repair, and guaranty this to the satisfaction of the Secretary of War. Clearly, the Act does not authorize the insertion in the agreement of any provision of the character referred to, calculated to restrain the exercise of any right incident to the ownership of the bridge, or to take away the free control of its future uses by the government, not infringing upon, or inconsistent with, the grant of a right of way, and transit to the Company. The clause in the draught here adverted to is therefore open to objection. I have the honor to be, with great respect, yours, &c. Henry Stanbery, Attorney General.