Chicago, Burlington & Quincy R. R. Co. v. Drainage Com'rs, supra, just decided. We need not repeat all said in the opinion in that case on this question.

Another matter requires notice. The railroad company contends that the city had no power to require or authorize any changes in the bed of the river without the approval of the Secretary of War. River and Harbor Act of 1899, § 10; 30 Stat. 1151. The same act contains directions for the improvement of Chicago river. Construing all the provisions together, we think it clear that when Congress declared in the River and Harbor Act of 1899, under the heading of "Improving Chicago river in Illinois," p. 1156, that "all the work of removing and reconstructing bridges and piers and lowering tunnels necessary to permit a navigable channel" with the prescribed "project" depth of twenty-one feet in Chicago river should be done by the city, without expense to the United States, it meant to give the assent of the United States to any work done by the city towards accomplishing the end which the Government had in view. The state court properly said that "the city has power, under its charter, to deepen the channel, and as a preliminary to doing so, to require this tunnel to be lowered or removed, and the act of Congress permits it to proceed, so far as the lowering of the tunnel is concerned.”

As showing that the action taken by the city of Chicago is in accordance with the will of Congress, we may refer to the act of Congress of April 27, 1904, relating to certain tunnels under Chicago river, including the particular tunnel here in question. That act provides: "That the tunnels under the Chicago river in the State of Illinois at La Salle street, Washington street, and near Van Buren street, in the city of Chicago, in said State of Illinois, are, and each of them is hereby, declared to be, as now constructed, an unreasonable obstruction to the free navigation of said Chicago river, and each of said tunnels is hereby declared to be a public nuisance. And it shall be the duty of the Secretary of War to give notice to the persons or corporations owning or controlling said tunnels, or any of them, so to

alter the same as to render navigation over said tunnels free, easy, and unobstructed, and in giving such notice he shall specify the changes recommended by the Chief of Engineers that are needed to be made in order that said tunnels, or any of them, shall not thereafter be an obstruction to navigation, and shall prescribe in each case a reasonable time in which to make said changes. If at the expiration of such time such changes have not been made, the Secretary of War shall forthwith notify the United States District Attorney for the Northern District of Illinois, in which said tunnels are situated, to the end that the criminal proceedings hereinafter prescribed may be taken. If the person or persons, corporation or corporations, owning or controlling any of the said tunnels shall, after receiving notice to that effect, as hereinbefore required, from the Secretary of War, and within the time prescribed by him, fail or refuse to remove the same or to make the changes specified in the notice of the Secretary of War, such person or persons, corporation or corporations, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding ten thousand dollars; and each and every month such person or persons, corporation or corporations, shall remain in default in respect to the removal or alteration of such tunnel shall be deemed a new offense and subject the person or persons, corporation or corporations, so offending to the penalty herein prescribed: Provided, That in any case arising under the provisions of this act an appeal or writ of error may be taken from the District Court or from the Circuit Court direct to the Supreme Court either by the United States or by the defendants." 33 Stat. 314. For some reason, not explained in the record, no allusion was made to this act in the opinion of the Supreme Court of Illinois, nor is it alluded to in in the briefs of counsel. That act, it seems to the court, emphasizes and strengthens the views expressed in this opinion, and tends to support the conclusions reached.

For the reasons we have stated, and in conformity with the principles announced in Chicago, Burlington & Quincy R. R.

Co. v. Drainage Com'rs, the judgment of the Supreme Court must be affirmed.

It is so ordered.

MR. JUSTICE HOLMES concurs in the judgment, upon the authority of Chicago, Burlington & Quincy R. R. Co. v. Drainage Commissioners, 200 U. S. 561.

THE CHIEF JUSTICE, MR. JUSTICE BREWER, MR. JUSTICE WHITE and MR. JUSTICE MCKENNA, dissent.

CLEVELAND v. CLEVELAND ELECTRIC RAILWAY COMPANY.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF OHIO.

No. 183. Argued Febuary 27, 28, 1906.-Decided April 9, 1906.

In construing municipal ordinances dealing with important matters such as extensions of street railway franchises it may reasonably be presumed that no provision escaped attention or was misunderstood; and, while a mistake might occur in one ordinance, it will not be supposed that the mistake occurred in four ordinances dealing with the same subject. Ordinances granting an extension to a consolidated street railway corporation, possessing franchises expiring at different times, on conditions involving great expense to the corporation and resulting in substantial benefits to the public as to transfers for single fares and relating to the entire system as well as the extensions granted, and providing that the right granted terminate with the then existing grants of the main line at a specified date later than that of termination of some of the franchises, amount, on the acceptance by the company and compliance with the conditions, to a contract within the protection of the impairment clause of the Constitution extending the various franchises to that date; the period, in this case of four years, not being an unreasonable one in view of the substantial benefits accruing to the public. Cleveland v. Cleveland City Railway Co., 194 U. S. 517, followed as to the power of the city council of Cleveland to pass ordinances diminishing the rate of fare on street railways in view of the contracts contained in ordinances heretofore passed in regard to street railways.

VOL, CCI-34

BILL in equity to enjoin the enforcement of an ordinance of the city of Cleveland, passed January 11, 1904, purporting to grant to the Forest City Railway Company the right to maintain and operate a street railroad upon streets alleged to be covered by grants to the appellee not yet expired and which, it is contended, constitute contracts, the obligation of which is impaired by the ordinance of January 11, 1904, in violation of the contract clause of the Constitution of the United States.

A preliminary injunction was granted, which, upon final hearing, was made perpetual. 135 Fed. Rep. 368. And this appeal was taken. The case was heard upon bill and answer, and an outline of the facts is as follows:

The Cleveland Electric Railway Company is a consolidated company, organized under the laws of Ohio in 1893. None of its constituent companies had at that time any rights in the streets in controversy. In 1903 the company acquired by purchase the lines of railway and the rights, privileges and franchises of the Cleveland City Railway Company. The latter company was constituted of the Woodland Avenue and West Side Street Railway Company and the Cleveland City Cable Railway Company, each of these companies being itself a consolidated company.

The Woodland Avenue Railway Company, before its consolidation with the West Side Street Railroad Company, was the successor by purchase in 1885 of the Kinsman Street Railroad Company, its rights, property and franchises, which, by the terms of the consolidation of the Woodland Avenue and West Side Companies in 1886, vested in the Woodland Avenue and West Side Railroad Company.

The rights, privileges and franchises of the Kinsman Street Railroad were derived from the city by an ordinance dated August 25, 1879, which granted to the company and to its successors and assigns the right to maintain and operate a double track street railroad in the city of Cleveland, "commencing on Superior street at the intersection of Water street, thence through Superior street and around the southwest corner of

Monumental square to Ontario street; thence through Ontario street to and through a portion of Broadway and Woodland avenue (formerly Kinsman street); thence through said Woodland avenue to Madison avenue.

It was provided that "the authority, privileges and franchises granted and renewed to said company, its successors and assigns," should continue for a period of twentyfive years from the twentieth day of September, 1879. The expiration of the grant was, therefore, fixed at September 20, 1904. The ordinance was accepted by the Kinsman Company.

On May 14, 1883, the city passed an ordinance entitled "An ordinance to permit the Woodland Avenue Railway Company to extend its lines of railway on Woodland avenue from the Cleveland and Pittsburgh Crossing to Corwin street." The ordinance was accepted and the line built as an extension of the tracks built by the Kinsman Company.

Prior to the year 1885 the two companies which formed the Woodland avenue and West Side Street Railroad Company were independent lines, with independent franchises from the city, one operating on the west side of Cuyahoga river, the other upon the east side and running to the southeasterly portion of the city. There was no interchange of traffic between them, and, at the time of the consolidation, the West Side Company had the right by ordinance from the city to operate its road for twenty-five years from February, 1883, namely, to February, 1908.

Under the laws of Ohio the city council had the power to fix the terms and conditions upon which railways might be consolidated, and in pursuance of the statute the companies notified the council of their proposed consolidation, and thereupon the council passed an ordinance February 1, 1885, giving the consent of the city to the consolidation upon the following conditions:

"The said consolidated company is to carry passengers through, without change of cars, by running of the cars through from the workhouse on the line of the Woodland Avenue Rail