On a pure bill of review, nothing will avail for a reversal of
the decree but errors of law apparent on the record.
There must be a direct statute of the United States in order to
bring within the scope of its laws obstructions and nuisances in
navigable streams within a state, such obstructions and nuisances
being offenses against the laws of the states within which the
navigable waters lie, but no offense against the United States in
the absence of a statute.
The provision in the "Act for the admission of Oregon into the
union," 11 Stat. 383, c. 33, § 2, that
"All the navigable waters of said state shall be common highways
and forever free as well to the inhabitants of said state as to all
other citizens of the United States, without any tax, duty, impost,
or toll therefor,"
does not refer to physical obstructions of those waters, but to
political regulations which would tamper the freedom of
commerce.
Until Congress acts respecting navigable streams entirely within
a state, the state has plenary power; but Congress is not concluded
by anything that the state or individuals by its authority or
acquiescence may have done from assuming entire control and abating
any erections that may have been made and preventing any other from
being made except in conformity with such regulations as it may
impose.
The appropriation by Congress of money to be expended in
improving the navigation of the Willamette River was no assumption
of police power over it.
Page 125 U. S. 2
Congress, by conferring the privilege of a port of entry upon a
municipality, does not come in conflict with the police power of a
state exercised in bridging its own navigable rivers below such
port.
Passaic Bridge Cases, 3 Wall. 782, 793, App.,
applied.
Pennsylvania v. Wheeling
& Belmont Bridge Co., 13 How. 618,
distinguished.
Bill of review. Decree dismissing the bill. Complainant
appealed. The case is stated in the opinion of the Court.
MR. JUSTICE BRADLEY delivered the opinion of the Court.
This is a bill of review filed by the appellants, a corporation
of Oregon, to obtain the reversal of a decree made by the court
below against them in favor of Hatch and Lownsdale, the appellees.
The case is shortly this:
On the 18th of October, 1878, the Legislature of Oregon passed
an act entitled
"An act to authorize the construction of a bridge on the
Willamette River, between the City of Portland and the City of East
Portland, in Multnomah County, State of Oregon,"
by which it was enacted as follows, to-wit:
"
Be it enacted . . . that its shall be lawful for the
Portland Bridge Company, a corporation duly incorporated under and
in conformity with the laws of the State of Oregon, or its assigns,
and that said corporation or its assigns be and are hereby
authorized and empowered to construct, build, maintain, use, or
cause to be constructed, built, and maintained or used, a bridge
across the Willamette River between Portland and East Portland, in
Multnomah County, State of Oregon, for any and all purposes of
travel or commerce, said bridge to be erected at any time within
six years after the passage and approval of this act at such point
or location on the banks of said river, on and along any of the
streets of either of said cities of Portland and East Portland as
may be selected or determined on by said corporation or its
assigns, on or above Morrison Street of said City of Portland and
M
Page 125 U. S. 3
Street of said City of East Portland, the same to be deemed a
lawful structure,
provided that there shall be placed and
maintained in said bridge a good and sufficient draw of not less
than one hundred feet in the clear in width of a passageway, and so
constructed and maintained as not to injuriously impede and
obstruct the free navigation of said river, but so as to allow the
easy and reasonable passage of vessels through said bridge,
and
provided that the approaches on the Portland side to said
bridge shall conform to the present grade of Front Street in said
City of Portland."
In the month of July, 1880, the appellants, the Willamette Iron
Bridge Company, claiming to be assignees of the Portland Bridge
Company and to act under and by authority of said law, began the
construction of a bridge across the Willamette River from the foot
of Morrison Street, in the City of Portland, and proceeded in the
work so far as to erect piers on the bed of the river, with a draw
pier in the channel, on which a pivot draw was to be placed, with a
clear passageway on each side, when open, of 100 feet in width, or,
as the appellants allege, 105 feet in width.
On the 3d of January, 1881, while the appellants were thus
engaged in erecting the bridge, Hatch and Lownsdale filed a bill in
the circuit court of the United States for an injunction to
restrain the appellants from further proceeding with the work and
to compel them to abate and remove the structures already placed in
the river. This bill described the complainants therein as citizens
of the United States, residing at Portland, in the State of Oregon,
and the defendants as a corporation organized under the laws of
that state, having its office and principal place of business at
Portland, and alleged that the Willamette River is a known public
river of the United States, situate within the State of Oregon,
navigated by licensed and enrolled and registered seagoing vessels
engaged with commerce with foreign nations and with other states
upon the ocean and by way of the Columbia River -- also a known
public and navigable river of the United States -- from its
confluence with the Columbia River to the docks and wharves of the
port of Portland, and that, up to and beyond the wharves and
warehouses
Page 125 U. S. 4
of the complainants, Hatch and Lownsdale, it is within the ebb
and flow of the ocean tides. That by the Act of Congress of
February 14, 1859, admitting the State of Oregon into the union, it
is declared
"That all the navigable waters of said state shall be common
highways, and forever free as well to the inhabitants of said state
as to all other citizens of the United States, without any tax,
duty, impost, or toll therefor."
11 Stat. 383. That Congress has established a port of entry at
the City of Portland, on the Willamette River, and has required
vessels which navigate it to be enrolled and licensed, etc., and
has frequently directed the improvement of the navigation of the
said river and appropriated money for that purpose, and by an Act
approved February 2, 1870, giving consent to the erection of
another bridge across said river from Portland to East Portland,
asserted the powers of the United States to regulate commerce upon
said river, and to prevent obstruction to the navigation of the
same, and in said act declared:
"But until the Secretary of War approves the plan and location
of said bridge and notifies the said corporation, association, or
company of the same, the bridge shall not be built or
commenced."
The complainants further stated that Lownsdale was the owner and
Hatch the lessee of a certain wharf and warehouses in Portland,
situated about 750 feet above the proposed bridge, heretofore
accessible to and used by seagoing vessels and others, and that
Hatch is the owner of a steam towboat, used for towing vessels up
and down the river to and from the said wharves and warehouses and
others in the city; that vessels of 2,000 tons have been in the
habit of navigating the river for a mile above the site of the
proposed bridge, and that the said river ought to remain free and
unobstructed. But they charge that the bridge and piers will be a
serious obstruction to this commerce; that the passageways will not
be sufficient for seagoing vessels with their tugs; that the bridge
is being constructed diagonally, and not at right angles, to the
current of the river; that it will arrest and pile up the floating
ice and timber in high stages of water in such a way as to obstruct
the passage of vessels, and in various other particulars stated in
the bill it is charged that the bridge will be a
Page 125 U. S. 5
serious obstruction to the navigation of the river. The
complainants contended that the act of the legislature authorizing
the bridge contravenes the laws of the United States declaring the
river free, and was not passed with the consent of Congress, and
was a wrongful assumption of power on the part of the state, and
alleged that the pretended assignment by the Portland Bridge
Company to the defendants, the Willamette Iron Bridge Company, was
not in good faith and was not authorized by the directors of the
former, and stated various other matters of alleged irregularity
and illegality on the part of the Portland Company and the
defendants. They also stated that the bridge was not being
constructed in conformity with the requirements of the state law;
that by reason of its diagonal position across the river, the
thread of the current formed an acute angle with the line of the
bridge, and that the draws do not afford more than 87 feet of a
passageway for the passage of vessels, and that vessels will be
unable to pass through said bridge for at least four months of the
busiest shipping season of the year.
The defendants in that case, the Willamette Iron Bridge Company,
filed an answer in which they admitted that they were building the
bridge and claimed to do so as assignees in good faith of the
Portland Bridge Company under and by virtue of the act of the
legislature before mentioned, but denied the allegations of the
bill with regard to the injurious effects of the bridge upon the
navigation of the river and averred that they were complying in
every respect with the state law. The cause being put at issue and
proofs being taken, on the 22d of October, 1881, a decree was made
in favor of the complainants for a perpetual injunction against the
building of the bridge and for an abatement of the portion already
built. The decision of the case was placed principally on the
ground that the bridge would be, and that the piers were, an
obstruction to the navigation of the river, contrary to the act of
Congress passed in 1859 admitting Oregon into the union, and
declaring
"That all the navigable waters of the said state shall be common
highways, and forever free as well to the inhabitants
Page 125 U. S. 6
of said state as to all other citizens of the United States,
without any tax, duty, impost, or toll therefor,"
and that without the consent of Congress, a state law was not
sufficient authority for the erection of such a structure, and even
if it was, the bridge did not conform to the requirements of the
state law.
See Hatch v. Willamette Iron Bridge Co., 7
Sawyer 127, 141. The defendants took an appeal, which was not
prosecuted, but after the decision of this Court in the case of
Escanaba Co. v. Chicago, 107 U. S. 678,
they filed the present bill of review for the reversal of the
decree.
The reasons assigned for a reversal are, among others, that the
court erred in holding and decreeing as follows, to-wit:
1st. That the bridge, where and as being constructed, was a
serious obstruction to the navigation of the Willamette River,
contrary to the Act of Congress of February 14, 1859, admitting the
State of Oregon into the union, which declares that all the
navigable waters of the state shall be common highways, and forever
free to all citizens of the United States,
2d. That the said court, under § 1 of the Act of March 3, 1875,
giving it jurisdiction of a suit arising under an act of Congress,
has authority to restrain parties from violating said act by
obstructing the navigation of any of said waters at the suit of
anyone injured thereby,
3d. That the proposed bridge is and will be a nuisance and
serious impediment to the navigation of said river,
4th. That the Legislature of the State of Oregon has not the
power to say absolutely that a bridge may be built with only a draw
of one hundred feet,
5th. That the Willamette Iron Bridge Company, as the assignee of
the Portland Bridge Company, was not authorized by the act of the
Legislative Assembly of Oregon to construct the said bridge,
because it would be a violation of the said Act of Congress of
February 14, 1859, admitting the State of Oregon into the union,
and was and is therefore void,
6th. That the defendant should be perpetually enjoined from
constructing or proceeding with the construction of the said
bridge, and
Page 125 U. S. 7
7th. That the defendant should be required to abate and remove
out of said river all piers, foundations, etc., which it has placed
or constructed therein.
This bill was demurred to, and the court affirmed the decree in
the original suit and dismissed the bill of review.
Willamette
Iron Bridge Co. v. Hatch, 9 Sawyer 643, 19 F. 347. The present
appeal is taken from this decree.
On a pure bill of review like the one in this case, nothing will
avail for a reversal of the decree but errors of law apparent on
the record.
Whiting v. Bank of the United
States, 13 Pet. 6;
Putnam v.
Day, 22 Wall. 60;
Buffington v. Harvey,
95 U. S. 99;
Thompson v. Maxwell, 95 U. S. 397;
Beard v. Burts, 95 U. S. 434;
Shelton v. Van Kleeck, 106 U. S. 532;
Nickle v. Stuart, 111 U. S. 776.
Does any such error appear in the present case? The court below has
decided in the negative. We are called upon to determine whether
that decision was correct. It must be assumed that the questions of
fact at issue between the parties were decided correctly by the
court upon its view of the law applicable to the case. But the
important question is was its view of the law correct? The parties
in the cause, both plaintiffs and defendants, were citizens of the
State of Oregon. The court therefore must necessarily have held --
as we know from its opinion that it did hold -- that the case was
one arising under the Constitution or laws of the United
States.
The gravamen of the bill was the obstruction of the navigation
of the Willamette River by the defendants by the erection of the
bridge which they were engaged in building. The defendants pleaded
the authority of the state legislature for the erection of the
bridge. The court held that the work was not done in conformity
with the requirements of the state law, but whether it were or not,
it lacked the assent of Congress, which assent the court held was
necessary in view of that provision in the act of Congress
admitting Oregon as a state, which has been referred to. The court
held that this provision of the act was tantamount to a declaration
that the navigation of the Willamette River should not be
obstructed or interfered with, and that any such obstruction or
interference, without
Page 125 U. S. 8
the consent of Congress, whether by state sanction or not, was a
violation of the act of Congress, and that the obstruction
complained of was in violation of said act, and this is the
principal and important question in this case -- namely whether the
erection of a bridge over the Willamette River at Portland was a
violation of said act of Congress. If it was not, if it could not
be, if the act did not apply to obstructions of this kind, then the
case did not arise under the Constitution or laws of the United
States unless under some other law referred to in the bill.
The power of Congress to pass laws for the regulation of the
navigation of public rivers and to prevent any and all obstructions
therein is not questioned. But until it does pass some such law,
there is no common law of the United States which prohibits
obstructions and nuisances in navigable rivers, unless it be the
maritime law, administered by the courts of admiralty and maritime
jurisdiction. No precedent, however, exists for the enforcement of
any such law, and if such law could be enforced (a point which we
do not undertake to decide), it would not avail to sustain the bill
in equity filed in the original case. There must be a direct
statute of the United States in order to bring within the scope of
its laws, as administered by the courts of law and equity,
obstructions and nuisances in navigable streams within the states.
Such obstructions and nuisances are offenses against the laws of
the states within which the navigable waters lie, and may be
indicted or prohibited as such; but they are not offenses against
United States laws which do not exist, and none such exists except
what are to be found on the statute book. Of course, where the
litigant parties are citizens of different states, the circuit
courts of the United States may take jurisdiction on that ground,
but on no other. This is the result of so many cases and
expressions of opinion by this Court that it is almost superfluous
to cite authorities on the subject. We refer to the following by
way of illustration:
Willson v. Black Bird Creek
Co., 2 Pet. 245;
Pollard's Lessee v.
Hagan, 3 How. 229;
Gilman
v. Philadelphia, 3 Wall. 724;
Pound v.
Turck,
Page 125 U. S. 9
95 U. S. 459;
Escanaba Co. v. Chicago, 107 U. S. 678;
Cardwell v. American Bridge Co., 113 U.
S. 205;
Hamilton v. Vicksburg &c. Railroad
Co., 119 U. S. 280;
Huse v. Glover, 119 U. S. 543;
Sands v. Manistee River Imp. Co., 123 U.
S. 288;
Transportation Co. v. Parkersburg,
107 U. S. 691,
107 U. S. 700.
The usual case, of course, is that in which the acts complained of
are clearly supported by a state statute, but that really makes no
difference. Whether they are conformable or not conformable to the
state law relied on is a state question, not a federal one. The
failure of state functionaries to prosecute for breaches of the
state law does not confer power upon United States functionaries to
prosecute under a United States law when there is no such law in
existence. But, as we have stated, the court below held that the
act of Congress of 1859 was a law which prohibited any obstructions
or impediments to the navigation of the public rivers of Oregon,
including that of the Willamette River. Was it such an act? Did it
have such effect?
The clause in question had its origin in the fourth article of
the compact contained in the ordinance of the old Congress for the
government of the territory northwest of the Ohio, adopted July 13,
1787, in which it was, among other things, declared that
"The navigable waters leading into the Mississippi and St.
Lawrence, and the carrying places between the same, shall be common
highways and forever free as well to the inhabitants of said
territory as to the citizens of the United States and those of any
other states that may be admitted into the Confederacy, without any
tax, impost, or duty therefor."
1 Stat. 52. This Court has held that when any new state was
admitted into the union from the Northwest Territory, the ordinance
in question ceased to have any operative force in limiting its
powers of legislation as compared with those possessed by the
original states. On the admission of any such new state, it at once
became entitled to and possessed all the rights of dominion and
sovereignty which belonged to them. See the cases of
Pollard's
Lessee v. Hagan, supra; 44 U. S. First
Municipality, 3 How. 589;
Escanaba Co. v. Chicago;
Cardwell v. Bridge Co.; Huse v. Glover, qua supra. In
admitting some of the new states,
Page 125 U. S. 10
however, the clause in question has been inserted in the law, as
it was in the case of Oregon, whether the state was carved out of
the territory northwest of the Ohio or not, and it has been
supposed that in this new form of enactment it might be regarded as
a regulation of commerce, which Congress has the right to impose.
Pollard's Lessee v.
Hagan, 3 How. 212,
44 U. S. 230.
Conceding this to be the correct view, the question then arises
what is its fair construction? What regulation of commerce does it
affect? Does it prohibit physical obstructions and impediments to
the navigation of the streams? Or does it prohibit only the
imposition of duties for the use of the navigation, and any
discrimination denying to citizens of other states the equal right
to such use? This question has been before this Court, and has been
decided in favor of the latter construction.
It is obvious that if the clause in question does prohibit
physical obstructions and impediments in navigable waters, the
state legislature itself, in a state where the clause is in force,
would not have the power to cause or authorize such obstructions to
be made without the consent of Congress. But it is well settled
that the legislatures of such states do have the same power to
authorize the erection of bridges, dams, etc., in and upon the
navigable waters wholly within their limits, as have the original
states, in reference to which no such clause exists. It was so held
in
Pound v. Turck, 95 U. S. 459, in
reference to a dam in the Chippewa River in Wisconsin; in
Cardwell v. American Bridge Company, 113 U.
S. 205; in reference to a bridge without a draw, erected
on the American River in California which prevented steamboats from
going above it, and in
Hamilton v. Vicksburg &c. Railroad
Co., 119 U. S. 280,
relating to railroad bridges in Louisiana -- in all which cases,
the clause in question was in force in the states where they arose,
and in none of them was said clause held to restrain in any degree
the full power of the state to make or cause to be made the
erections referred to, which must have been more or less
obstructions and impediments to the navigation of the streams on
which they were placed. In
Cardwell v. American Bridge
Co., the two alternate
Page 125 U. S. 11
constructions of the clause above suggested were brought to the
attention of the Court, and, on consideration, it was held as
follows:
"Upon mature and careful consideration which we have given in
this case to the language of the clause in the act admitting
California, we are of opinion that if we treat the clause as
divisible into two provisions, they must be construed together as
having but one object -- namely to insure a highway equally open to
all without preference to any, and unobstructed by duties or tolls,
and thus prevent the use of the navigable streams by private
parties to the exclusion of the public and the exaction of any toll
for their navigation, and that the clause contemplated no other
restriction upon the power of the state in authorizing the
construction of bridges over them whenever such construction would
promote the convenience of the public."
In
Hamilton Vicksburg &c. Railroad Co., it was
said:
"Until Congress intervenes in such cases and exercises its
authority, the power of the state is plenary. When the state
provides for the form and character of the structure, its
directions will control, except as against the action of Congress,
whether the bridge be with or without draws, and irrespective of
its effect upon navigation;"
and in the same case, the construction given to the clause in
question in
Cardwell v. American Bridge Company was
reiterated -- namely that it was intended to prevent any
discrimination against citizens of other states in the use of
navigable streams and any tax or toll for their use. In
Huse v.
Glover, 119 U. S. 543,
where a portion of the Illinois River had been improved by the
State of Illinois by the erection of locks in the river, and a toll
was charged for passing through the same, it was held that this was
no encroachment upon the power of Congress to regulate commerce and
that while the Ordinance of 1787 was no longer in force in
Illinois, yet if it were, the construction given to the clause in
the
Cardwell case was approved, and the following
observation was made:
"As thus construed, the clause would prevent any exclusive use
of the navigable waters of the state -- a possible farming out of
the privilege of navigating them to particular individuals,
classes, or corporations, or by vessels of a particular character.
"
Page 125 U. S. 12
It was also held that the exaction of tolls for passage through
the locks, as a compensation for the use of the artificial
facilities constructed, was not an impost upon the navigation of
the stream. The same views are held in the recent case of
Sands
v. Manistee River Improvement Co., 123 U.
S. 288.
It seems clear, therefore, that according to the construction
given by this Court to the clause in the act of Congress relied
upon by the court below, it does not refer to physical
obstructions, but to political regulations which would hamper the
freedom of commerce. It is to be remembered that, in its original
form, the clause embraced carrying places between the rivers as
well as the rivers themselves, and it cannot be supposed that those
carrying places were intended to be always kept up as such. No
doubt that at the present time, some of them are covered by
populous towns or occupied in some other way incompatible with
their original use, and such a diversion of their use in the
progress of society cannot but have been contemplated. What the
people of the old states wished to secure was the free use of the
streams and carrying places in the Northwest Territory as fully as
it might be enjoyed by the inhabitants of that territory
themselves, without any impost or discriminating burden. The clause
in question cannot be regarded as establishing the police power of
the United States over the rivers of Oregon, or as giving to the
federal courts the right to hear and determine, according to
federal law, every complaint that may be made of an impediment in,
or an encroachment upon, the navigation of those rivers. We do not
doubt that Congress, if it saw fit, could thus assume the care of
said streams in the interest of foreign and interstate commerce; we
only say that in our opinion it has not done so by the clause in
question. And although, until Congress acts, the states have the
plenary power supposed, yet when Congress chooses to act, it is not
concluded by anything that the states or that individuals by its
authority or acquiescence have done from assuming entire control of
the matter and abating any erections that may have been made, and
preventing any others from being made, except in
Page 125 U. S. 13
conformity with such regulations as it may impose. It is for
this reason -- namely the ultimate (though yet unexerted) power of
Congress over the whole subject matter -- that the consent of
Congress is so frequently asked to the erection of bridges over
navigable streams. It might itself give original authority for the
erection of such bridges when called for by the demands of
interstate commerce by land, but in many -- perhaps the majority --
of cases, its assent only is asked, and the primary authority is
sought at the hands of the state. With regard to this very river,
the Willamette, three acts of Congress have been passed in relation
to the construction of bridges thereon: to-wit, one approved
February 2, 1870, which gave consent to the corporation of the City
of Portland to erect a bridge from Portland to the east bank of the
river, not obstructing, impairing, or injuriously modifying its
navigation, and first submitting the plans to the Secretary of War;
another, approved on the 22d of June, 1874, which authorized the
county commissioners of Marion county, or said commissioners
jointly with those of Polk County, to build a bridge across said
river at Salem; a third act, approved June 23, 1874, which
authorized the Oregon and California Railroad Company, alone or
jointly with the Oregon Central Railroad Company, to build a
railroad bridge across said river at the City of Portland, with a
draw of not less than one hundred feet in the clear on each side of
the draw abutment and so constructed as not to impede the
navigation of the river, and allow the free passage of vessels
through the bridge. These acts are special in their character, and
do not involve the assumption by Congress of general police power
over the river.
The argument of the appellees that Congress must be deemed to
have assumed police power over the Willamette River in consequence
of having expended money in improving its navigation and of having
made Portland a port of entry, is not well founded. Such acts are
not sufficient to establish the police power of the United States
over the navigable streams to which they relate. Of course, any
interference with the operations, constructions, or improvements
made by the general government, or any violation of a port law
Page 125 U. S. 14
enacted by Congress, would be an offense against the laws and
authority of the United States, and an action or suit brought in
consequence thereof would be one arising under the laws of the
United States; but no such violation or interference is shown by
the allegations of the bill in the original suit in this case,
which simply states the fact that improvements have been made in
the river by the government, without stating where, and that
Portland had been created a port of entry. In the case of
Escanaba Co. v. Chicago, it was said:
"As to the appropriations made by Congress, no money has been
expended on the improvement of the Chicago River above the first
bridge from the lake, known as 'Rush Street Bridge.' No bridge,
therefore, interferes with the navigation of any portion of the
river which has been thus improved. But if it were otherwise, it is
not perceived how the improvement of the navigability of the stream
can affect the ordinary means of crossing it by ferries and
bridges."
107 U.S.
107 U. S. 690.
In the present case, there is no allegation, if such an allegation
would be material, that any improvements in the navigation of the
Willamette River have been made by the government at any point
above the site of the proposed bridge.
As to the making of Portland a port of entry, the observations
of Mr. Justice Grier in
The Passaic Bridge Cases, 3 Wall.
782, 793, App., are very apposite. Those cases were decided in
September, 1857, by dismissing the bills which were filed for
injunctions against the erection of a railroad bridge across the
Passaic River at Newark, New Jersey, and a plank road bridge across
the same river below Newark. The decrees were affirmed here by an
equally divided Court in December term, 1861. It being urged, among
other things, that Newark was a port of entry and that the erection
of these bridges, though under the authority of the state
legislature, was in conflict with the act of Congress establishing
the port, Mr. Justice Grier said:
"Congress, by conferring the privilege of a port of entry upon a
town or city, does not come in conflict with the police power of a
state exercised in bridging her own rivers below such port. If the
power to make a town a port of entry includes the right to regulate
the means
Page 125 U. S. 15
by which its commerce is carried on, why does it not extend to
its turnpikes, railroads, and canals -- to land as well as water?
Assuming the right (which I neither affirm or deny) of Congress to
regulate bridges over navigable rivers below ports of entry, yet,
not having done so, the courts cannot assume to themselves such a
power. There is no act of Congress or rule of law which courts
could apply to such a case."
These views were adhered to by the same judge in the subsequent
case of
Gilman v. Philadelphia. The bridge which was the
subject of controversy in that case was within the limits of the
port of Philadelphia, which, by the act of 1799, included the City
of Philadelphia, and by that of 1834 was extended northerly to
Gunner's Run.
See 3 Wall.
70 U. S. 718.
That case arose soon after the
Passaic Bridge Cases, and,
so far as interference with navigation was concerned, was identical
in character with them, and Mr. Justice Grier, upon the same
grounds taken and asserted by him in those cases, without
delivering an additional opinion, dismissed the bill. The decree
was affirmed in this Court in December term, 1865, by a vote of
seven Justices to three, Justices Clifford, Wayne, and Davis
dissenting, so that Justice Grier's views were finally affirmed by
a decided majority of the Court.
It is urged that in the
Wheeling Bridge
Case, 13 How. 518, this Court decided the bridge
there complained of to be a nuisance, and decreed its prostration
or such increased elevation as to permit the tall chimneys of the
Pittsburgh steamers to pass under it at high water. But in that
case, this Court had original jurisdiction in consequence of a
state's being a party, and the complainant, the State of
Pennsylvania, was entitled to invoke, and the Court had power to
apply, any law applicable to the case, whether state law, federal
law, or international law. The bridge had been authorized by the
Legislature of Virginia, whose jurisdiction extended across the
whole River Ohio. But Virginia, in consenting to the erection of
Kentucky into a state, had entered into a compact with regard to
the free navigation of the Ohio, confirmed by the act of
Congress
Page 125 U. S. 16
admitting Kentucky into the union, which the Court held to be
violated by authorizing the bridge to be constructed in the manner
it was, and the bridge, so constructed, injuriously affected a
supra-riparian state (Pennsylvania) bordering on the river,
contrary to international law. Mr. Justice Grier, in the
Passaic Bridge Cases, disposes of the
Wheeling Bridge
Case as follows:
"This legislation of Virginia being pleaded as a bar to further
action of the Court in the case necessarily raised these question:
could Virginia license or authorize a nuisance on a public river,
flowing, which rose in Pennsylvania and passed along the border of
Virginia and which, by compact between the states, was declared to
be 'free and common to all the citizens of the United States?' If
Virginia could authorize any obstruction at all to the channel
navigation, she could stop it altogether and divert the whole
commerce of that great river from the State of Pennsylvania, and
compel it to seek its outlet by the railroads and other public
improvements of Virginia. If she had the sovereign right over this
boundary river claimed by her, there would be no measure to her
power. She would have the same right to stop its navigation
altogether as to stop it ten days in a year. If the plea was
admitted, Virginia could make Wheeling the head of navigation on
the Ohio, and Kentucky might do the same at Louisville, having the
same right over the whole river which Virginia can claim. This
plea, therefore, presented not only a great question of
international law, but whether rights secured to the people of the
United States, by compact made before the Constitution, were held
at the mercy or caprice of every or any of the states to which the
river was a boundary. The decision of the Court denied this right.
The plea being insufficient as a defense, of course, the
complainant was entitled to a decree prostrating the bridge, which
had been erected
pendente lite. But to mitigate the
apparent hardship of such a decree if executed unconditionally, the
Court, in the exercise of a merciful discretion, granted a stay of
execution on condition that the bridge should be raised to a
certain height or have a draw put in it which would permit boats to
pass at all stages of the navigation. From this modification
Page 125 U. S. 17
of the decree no inference can be drawn that the courts of the
United States claim authority to regulate bridges below ports of
entry and treat all state legislation in such cases as
unconstitutional and void. . . . It is evident from this
statement,"
continues Justice Grier,
"that the Supreme Court, in denying the right of Virginia to
exercise this absolute control over the Ohio River and in deciding
that as a riparian proprietor, she was not entitled either by the
compact or by constitutional law to obstruct the commerce or a
supra-riparian state, had before them questions not involved in
these cases [the
Passaic Bridge Cases] and which cannot
affect their decision. The Passaic River, though navigable for a
few miles within the State of New Jersey and therefore a public
river, belongs wholly to that state. It is no highway to other
states; no commerce passes thereon from states below the bridge to
states above."
3 Wall. 792. This exposition of the
Wheeling Bridge
Case by one who had taken a decided part in its discussion and
determination effectually disposes of it as a precedent for the
jurisdiction of the circuit courts of the United States in matters
pertaining to bridges erected over navigable rivers -- at least
those erected over rivers whose course is wholly within a single
state. The Willamette River is one of that description.
On the whole, our opinion is that the original suit in this case
was not a suit arising under any law of the United States, and
since, on such ground alone, the court below could have had
jurisdiction of it, it follows that the decree on the bill of
review must be
Reversed and the record remanded with instructions to
reverse the decree in the original suit and to dismiss the bill
filed therein without prejudice to any other proceeding which may
be taken in relation to the erection of said bridge not
inconsistent with this opinion.