The power of Congress to regulate commerce includes the
regulation of intercourse and navigation, and consequently the
power to determine what shall or shall not be deemed, in judgment
of law, an obstruction of navigation.
The provisions of the Act of Congress passed August 31, 1852, 10
Stat. 112, in its 6th and 7th sections declaring the bridges over
the Ohio River at Wheeling and Bridgeport to be lawful structures
at their then height and position and requiring the officers and
crews of vessels navigating the Ohio River to regulate their
vessels so as not to interfere with the elevation and construction
of said bridges are within the legitimate exercise by Congress of
its constitutional power to regulate commerce.
The said sections of the aforesaid act of Congress are not
invalid by reason of the compact in respect to the free navigation
of the Ohio River made between the States of Virginia and Kentucky
with the sanction of Congress at the time the latter state was
admitted into the Union.
Neither are they in conflict with the provision of the
Constitution of the United States providing that "no preference
shall be given by any regulation of commerce or revenue to the
ports of one state over those of another."
As a general proposition, it is true that an act of Congress
cannot annul a judgment of the Supreme Court of the United States
or impair the rights determined thereby, especially as respects
adjudications upon the private rights of parties, and hence the
decree of this Court heretofore rendered in this case, so far as it
respects the costs adjudged to the complainant, is unaffected by
the act of Congress referred to.
But that portion of the decree of this Court at the May term,
1852, in the case of the State of
Pennsylvania v. Wheeling
& Belmont Bridge Company, which relates to the abatement
of the bridge, proceeded upon the ground that the bridge was in
conflict with the then existing regulations of commerce by
Congress, and was executory, depending upon the bridge's continuing
to be an unlawful obstruction to the public right of free
navigation, and that right having since been modified by Congress
in the exercise of its constitutional power to regulate commerce so
that the bridge is no longer an unlawful obstruction, the decree
cannot now be enforced.
After the passage of the act of Congress referred to, the bridge
no longer being an unlawful interference with a public right, the
defendant's authority to maintain it in its then position and
height existed from the moment of the enactment, for their
authority then combined the concurrent powers of both governments,
state and federal, and if these are not sufficient, none can be
found in our system.
The complainant's motions for a writ of assistance to execute
the decree of the 27th of May, 1852, by the abatement of the bridge
and for a sequestration against the corporation and attachment
against its officers for disobeying said decree are therefore
refused, and the motions to punish the contempt of the corporation
and its officers in disobeying the injunction granted by MR.
JUSTICE GRIER on the 27th of June, 1854, are also overruled, and
the injunction is dissolved.
The decree for costs being unaffected by the act of Congress,
the motion for taxation and award of execution for their collection
is granted.
This case was one of original jurisdiction in this Court, upon
the equity side, and may be said to be a continuation of the suit
between the same parties reported in
54 U. S. 13 How.
518.
By turning to that case, the reader will perceive that at page
54 U. S. 627, a
day was given to the plaintiffs to move the Court on the subject of
the decree. It is now proposed to continue the narrative from that
time.
The motion made by the complainant and the motion made by the
defendants to dismiss the suit need not be particularly stated.
Page 59 U. S. 422
In the summer of 1854, the bridge was blown down by a violent
storm, and the company were preparing to rebuild it according to
the original plan when the next step in the history of the case was
taken.
On the 26th day of June, 1854, in vacation of the Supreme Court,
the State of Pennsylvania, by her attorney general and her counsel,
Edwin M. Stanton, pursuant to previous notice served on the
Wheeling & Belmont Bridge Company, appeared before the
Honorable R. C. GRIER, one of the Justices of the Supreme Court of
the United States, at chambers, and moved for an injunction as
prayed for in a supplemental bill then exhibited. The substance and
object of the bill is stated in the subjoined order.
On hearing the bill and affidavits, the following order was made
and injunction granted.
"
In the Supreme Court of the United
States"
"THE STATE OF PENNSYLVANIA"
"v. In Equity"
"THE WHEELING AND BELMONT BRIDGE COMPANY"
"Before the Honorable R. C. GRIER, one of the Judges of the
Supreme Court of the United States."
"Whereas, on the 26th day of June, 1854, at the United States
courtroom in the city of Philadelphia, the State of Pennsylvania,
by her attorney general and counsel, exhibited before me, R. C.
Grier, one of the Justices of the Supreme Court of the United
States, her bill of complaint in equity against the Wheeling &
Belmont Bridge Company, setting forth, among other things, that the
said Wheeling & Belmont Bridge Company is about to erect and
construct a bridge over and across the eastern channel of the Ohio
River at Wheeling, between Zane's Island and the main Virginia
shore, at a less elevation than is prescribed by the decree of the
Supreme Court of the United States heretofore rendered against said
company on complaint of said state, whereby the navigation of the
Ohio River by steamboats of the largest class will be obstructed,
to the injury of the said state; and in the vacation of the Supreme
Court the said complainant hath applied to me for an injunction as
prayed for in said bill against the said Wheeling & Belmont
Bridge Company, and its president, managers, officers, engineers,
agents, contractors, and servants, to enjoin them from erecting and
constructing a bridge at the place aforesaid at a less elevation
than is prescribed by the decree aforesaid, and from doing any act
or thing to obstruct the navigation of the Ohio River, as prayed in
said bill: "
Page 59 U. S. 423
"And reasonable notice of said application having been given
unto the said Wheeling & Belmont Bridge Company to appear
before me to resist said application, and the proofs and arguments
of counsel being heard, it is considered and adjudged that an
injunction, as prayed for in the said bill, be, and the same is
hereby, allowed. And it is ordered that the writ of injunction of
the United States of America be forthwith issued by the Clerk of
the Supreme Court of the United States under the seal of the said
Court against the said Wheeling & Belmont Bridge Company, its
president, managers, officers, engineers, agents, contractors, and
servants, and all persons acting by their instigation, authority,
or procurement, or otherwise commanding and requiring them, and
every of them, under the penalty of the law, that they do forthwith
and absolutely desist and abstain from erecting and constructing,
or causing to be erected or constructed, any bridge, structure, or
device in, over, or across the eastern channel of the Ohio River at
Wheeling between Zane's Island and the main Virginia shore at a
less elevation than is prescribed by the decree aforesaid of the
Supreme Court of the United States against said bridge company,
entered at the adjourned term in May, 1852, and from stretching,
suspending, or placing or causing to be stretched, suspended, or
placed any iron cables, ropes, wires, or chains, or any timber,
structure, material, or thing whatsoever in, over, or across the
said channel at a less elevation than is prescribed by the decree
aforesaid, and from keeping and maintaining any cable, rope, wire,
chain, timber, or thing whatsoever suspended in, over, or across
the said channel at a less elevation than is prescribed by the
decree aforesaid, and from doing, or causing to be done any act or
thing to obstruct the free navigation of said channel of the Ohio
River."
"It is ordered that the marshal of the District of Columbia do
forthwith serve said writ."
"And the Clerk of the Supreme Court of the United States is
directed to file the bill of complainant on which the aforesaid
application and allowance are made and enter this order and issue
the writ of injunction above allowed, and also that he issue the
writ of subpoena in chancery, to be served by said marshal,
requiring said Wheeling & Belmont Bridge Company to appear,
plead, answer, or demur to said bill within ninety days from the
service of said writ."
"Given under my hand, at Philadelphia, this 26th day of June,
1854."
"R. C. GRIER"
"
Associate Justice Sup. court U.S."
The preceding order having been filed in the office of the
Clerk
Page 59 U. S. 424
of the Supreme Court on the 27th day of June, a writ of
injunction, with a certified copy of the decree of the Supreme
Court, entered at May term, 1852, annexed thereto, was issued and
delivered to the Marshal of the District of Columbia as
follows:
"
THE UNITED STATES OF AMERICA"
"
In the Supreme Court of the United States,
ss."
"The President of the United States of America, to the Wheeling
& Belmont Bridge Company, its president, managers, officers,
engineers, agents, contractors, and servants, and to each and every
of them, and to all persons whomsoever, greeting: "
"Whereas the State of Pennsylvania hath made application before
the Honorable R. C. GRIER, one of the Justices of the Supreme Court
of the United States, for an injunction as prayed for in her bill
of complaint exhibited before said Justice and filed in the Supreme
Court of the United States: "
"And whereas, upon hearing of said application, the following
order was made:"
"[In the injunction, the preceding order was recited.]"
"We therefore, having regard to the matter aforesaid, do
strictly enjoin and command the said Wheeling & Belmont Bridge
Company, its president, managers, officers, engineers, agents,
contractors, and servants, and all persons acting by their
instigation, authority, advice, procurement, or otherwise, to
observe and obey the aforesaid order and injunction."
"Hereof fail not under the full penalty of the law thence
ensuing."
"Witness the Honorable RPGER B. TANEY, Chief Justice of the
Supreme Court of the United States, this 28th day of June, A.D.
1854."
"Attest, WM. THOMAS CARROLL"
"
Clerk of the Supreme Court of the United States"
The writs of injunction being served upon the company by leaving
a copy at its office and with its president and secretary and also
upon the managers of the company, they proceeded to erect the
bridge notwithstanding the injunction, and it was completed in
November.
At December term, 1854, the complainant, by her counsel, having
given previous notice to the company, filed a motion for a
sequestration against the company for a contempt of court in
disobeying the injunction, and a motion for an attachment
Page 59 U. S. 425
against the officers personally for their contempt in disobeying
the injunction. The motions were as follows:
"
Motion for Sequestration"
"And now, to-wit, at the December term, 1854, comes the State of
Pennsylvania by her attorney general and moves the Court to order
and direct a writ to be issued against the Wheeling & Belmont
Bridge Company to sequestrate its estate, real, personal, and
mixed, and the rents, issues, and profits thereof, its privileges
and franchises, goods, chattels, rights, credits, moneys, and
effects for a contempt of court by breach of and disobedience to
the lawful writ, process, orders, decree, and commands of the
Supreme Court of the United States."
"The breaches and disobedience to said writ, process, orders,
decree, and commands aforesaid are stated and charged specifically
as follows:"
"1. That after service upon the Wheeling & Belmont Bridge
Company by the marshal of the District of Columbia of a copy of a
writ of injunction issued out of said Court, pursuant to an order
of allowance made on the 26th day of June, 1854, by the Honorable
R. C. GRIER, one of the Judges of the said Supreme Court, the said
company have disobeyed said writ of injunction, and are engaged in
doing and performing acts and have caused and procured acts to be
done in disobedience of said injunction and of the process and
authority of said Court."
"2. That after service upon said company by the marshal
aforesaid, of a copy of the decree entered by said Supreme Court at
the adjourned term of May, 1852, in the case of
The State of
Pennsylvania v. Wheeling & Belmont Bridge Company and
Others, said company have disobeyed said decree."
"3. That since the service of the writ of injunction and decree
as aforesaid upon said company, said company have stretched,
suspended, and placed, and caused and procured to be stretched,
suspended, and placed, iron cables, ropes, wires, or chains, over
and across the eastern channel of the Ohio River between Zane's
Island and the main Virginia shore at Wheeling, in disobedience of
said injunction, and have erected and constructed and are engaged
in erecting and constructing and in causing and procuring to be
erected and constructed a bridge over and across the said channel
at a less elevation than is prescribed by the said decree of the
Supreme Court of the United States, entered as aforesaid at the
adjourned term of May, 1852, and in disobedience of said writ of
injunction, and have kept and maintained and are keeping and
maintaining cables, wires, chains,
Page 59 U. S. 426
timbers, and planks suspended in, over, and across the said
channel at a less elevation than is prescribed by the decree
aforesaid."
"4. That since the service of said writ and decree as aforesaid,
the said company have obstructed the free navigation of the said
channel of the Ohio River and have caused and procured the same to
be obstructed, and are now keeping the same obstructed, in breach
and disobedience of said writ of injunction and decree."
"F. W. HUGHES"
"
Attorney General of Pennsylvania"
"
Motion for Attachment"
"And now, to-wit, at the December term, 1854, comes the State of
Pennsylvania, by her attorney general, and moves the Court for an
order that Charles Ellet, Jr., James Baker, and E. H. Fitzhugh
stand committed to the jail of the District of Columbia for a
contempt of court, by breach of and disobedience to the lawful
writ, process, order, decree, and commands of the Supreme Court of
the United States."
"[The breaches set out were the same as above.]"
A motion for a writ of assistance to execute the decree of this
Court made in May, 1852, was also filed, praying the court to order
and direct such a writ to the marshal of the District of
Columbia.
A motion was also made for an award of execution for the costs
decreed in May, 1852.
The defendants appeared by their counsel, and resisted the
foregoing motions under the 6th and 7th sections of the Act of
Congress, 10 Stat. 112, entitled
"An act making appropriations for the service of The Post Office
Department during the fiscal year ending the thirtieth of June, one
thousand eight hundred and fifty-three, and for other
purposes."
"SEC. 6. And be it further enacted, that the bridges across the
Ohio River at Wheeling, in the State of Virginia, and at
Bridgeport, in the State of Ohio, abutting on Zane's Island in said
river, are hereby declared to be lawful structures, in their
present position and elevation, and shall be so held and taken to
be, anything in any law or laws of the United States to the
contrary notwithstanding."
"SEC. 7. And be it further enacted, that the said bridges are
declared to be and are established post roads for the passage of
the mails of the United States, and that the Wheeling & Belmont
Bridge Company are authorized to have and maintain their said
bridges at their present site and elevation, and the officers
Page 59 U. S. 427
and crews of all vessels and boats navigating said river, are
required to regulate the use of their said vessels and boats, and
of any pipes or chimneys belonging thereto, so as not to interfere
with the elevation and construction of said bridges."
The defendants also moved to dissolve the injunction granted by
Mr. Justice Grier.
At December term, 1854, these several motions came on to be
heard.
Page 59 U. S. 429
MR. JUSTICE NELSON delivered the opinion of the Court.
The motion in this case is founded upon a bill filed to carry
into execution a decree of the court, rendered against the
defendants at the adjourned term in May, 1852, which decree
declared the bridge erected by them across the Ohio River, between
Wheeling and Zane's Island, to be an obstruction of the free
navigation of the said river, and thereby occasioned a special
damage to the plaintiff for which there was not an adequate remedy
at law, and directed that the obstruction be removed either by
elevating the bridge to a height designated or by abatement.
Since the rendition of this decree, and on the 31st August,
1852, an act of Congress has been passed as follows:
"That the bridges across the Ohio River at Wheeling, in the
State of Virginia, and at Bridgeport, in the State of Ohio,
abutting on Zane's Island in said river are hereby declared to be
lawful structures in their present positions and elevations, and
shall be so held and taken to be anything in the law or laws of the
United States to the contrary notwithstanding."
And further:
"That the said bridges be declared to be and are established
post roads for the passage of the mails of the United States, and
that the Wheeling & Belmont Bridge Company are authorized to
have and maintain their bridges at their present site and
elevation, and the officers and crews of all vessels and boats
navigating said river are required to regulate the use of their
said vessels, and of any pipes or chimneys belonging thereto, so as
not to interfere with the elevation and construction of said
bridges."
The defendants rely upon this act of Congress as furnishing
authority for the continuance of the bridge as constructed, and as
superseding the effect and operation of the decree of the Court
previously rendered declaring it an obstruction to the
navigation.
On the part of the plaintiff it is insisted that the act is
unconstitutional and void, which raises the principal question in
the case.
In order to a proper understanding of this question, it is
material
Page 59 U. S. 430
to recur to the ground and principles upon which the majority of
the Court proceeded in rendering the decree now sought to be
enforced.
The bridge had been constructed under an act of the Legislature
of the State of Virginia, and it was admitted that act conferred
full authority upon the defendants for the erection, subject only
to the power of Congress in the regulation of commerce. It was
claimed, however, that Congress had acted upon the subject and had
regulated the navigation of the Ohio River, and had thereby secured
to the public, by virtue of its authority, the free and
unobstructed use of the same, and that the erection of the bridge,
so far as it interfered with the enjoyment of this use, was
inconsistent with and in violation of the acts of Congress and
destructive of the right derived under them, and that, to the
extent of this interference with the free navigation of the river,
the act of the Legislature of Virginia afforded no authority or
justification. It was in conflict with the acts of Congress, which
were the paramount law.
This being the view of the case taken by a majority of the
Court, they found no difficulty in arriving at the conclusion that
the obstruction of the navigation of the river by the bridge was a
violation of the right secured to the public by the constitution
and laws of Congress, nor in applying the appropriate remedy in
behalf of the plaintiff. The ground and principles upon which the
court proceeded will be found reported in
54 U. S. 13 How.
518.
Since, however, the rendition of this decree, the acts of
Congress, already referred to have been passed by which the bridge
is made a post road for the passage of the mails of the United
States and the defendants are authorized to have and maintain it at
its present site and elevation, and requiring all persons
navigating the river to regulate such navigation so as not to
interfere with it.
So far, therefore, as this bridge created an obstruction to the
free navigation of the river, in view of the previous acts of
Congress, they are to be regarded as modified by this subsequent
legislation, and although it still may be an obstruction in fact,
is not so in the contemplation of law. We have already said, and
the principle is undoubted, that the act of the Legislature of
Virginia conferred full authority to erect and maintain the bridge,
subject to the exercise of the power of Congress to regulate the
navigation of the river. That body having in the exercise of this
power regulated the navigation consistent with its preservation and
continuation, the authority to maintain it would seem to be
complete. That authority combines the concurrent powers of both
governments, state and federal, which, if not sufficient, certainly
none can be found in our system of government.
Page 59 U. S. 431
We do not enter upon the question whether or not Congress
possess the power, under the authority in the Constitution "to
establish post offices and post roads," to legalize this bridge,
for conceding that no such powers can be derived from this clause,
it must be admitted that it is at least necessarily included in the
power conferred to regulate commerce among the several states. The
regulation of commerce includes intercourse and navigation, and of
course the power to determine what shall or shall not be deemed in
judgment of law an obstruction to navigation, and that power, as we
have seen, has been exercised consistent with the continuance of
the bridge.
But it is urged that the act of Congress cannot have the effect
and operation to annul the judgment of the Court already rendered
or the rights determined thereby in favor of the plaintiff. This,
as a general proposition, is certainly not to be denied, especially
as it respects adjudication upon the private rights of parties.
When they have passed into judgment, the right becomes absolute,
and it is the duty of the Court to enforce it.
The case before us, however, is distinguishable from this class
of cases so far as it respects that portion of the decree directing
the abatement of the bridge. Its interference with the free
navigation of the river constituted an obstruction of a public
right secured by acts of Congress.
But although this right of navigation be a public right common
to all, yet a private party sustaining special damage by the
obstruction may, as has been held in this case, maintain an action
at law against the party creating it to recover his damages or, to
prevent irreparable injury, file a bill in chancery for the purpose
of removing the obstruction. In both cases, the private right to
damages or to the removal arises out of the unlawful interference
with the enjoyment of the public right, which, as we have seen, is
under the regulation of Congress. Now we agree, if the remedy in
this case had been an action at law and a judgment rendered in
favor of the plaintiff for damages, the right to these would have
passed beyond the reach of the power of Congress. It would have
depended not upon the public right of the free navigation of the
river, but upon the judgment of the Court. The decree before us, so
far as it respect the costs adjudged, stands upon the same
principles and is unaffected by the subsequent law. But that part
of the decree directing the abatement of the obstruction is
executory, a continuing decree, which requires not only the removal
of the bridge but enjoins the defendants against any reconstruction
or continuance. Now whether it is a future existing or continuing
obstruction depends upon the question whether or not it interferes
with the right of navigation. If, in the meantime,
Page 59 U. S. 432
since the decree, this right has been modified by the competent
authority so that the bridge is no longer an unlawful obstruction,
it is quite plain the decree of the Court cannot be enforced. There
is no longer any interference with the enjoyment of the public
right inconsistent with law, no more than there would be where the
plaintiff himself had consented to it after the rendition of the
decree. Suppose the decree had been executed, and after that the
passage of the law in question, can it be doubted but that the
defendants would have had a right to reconstruct it? And is it not
equally clear that the right to maintain it, if not abated, existed
from the moment of the enactment?
A class of cases that have frequently occurred in the state
courts contain principles analogous to those involved in the
present case. The purely internal streams of a state which are
navigable belong to the riparian owners to the thread of the
stream, and as such they have a right to use the waters and bed
beneath for their own private emolument, subject only to the public
right of navigation. They may construct wharves or dams or canals
for the purpose of subjecting the stream to the various uses to
which it may be applied, subject to this public easement. But if
these structures materially interfere with the public right, the
obstruction may be removed or abated as a public nuisance.
In respect to these purely internal streams of a state, the
public right of navigation is exclusively under the control and
regulation of the state legislature, and in cases where these
erections or obstructions to the navigation are constructed under a
law of the state or sanctioned by legislative authority, they are
neither a public nuisance subject to abatement nor is the
individual who may have sustained special damage from their
interference with the public use entitled to any remedy for his
loss. So far as the public use of the stream is concerned, the
legislature having the power to control and regulate it, the
statute authorizing the structure, though it may be a real
impediment to the navigation, makes it lawful. 5 Wend. 448, 449; 15
id. 113; 17 T.R. 195; 20
id. 90, 101; 5 Cow.
165.
It is also urged that this act of Congress is void for the
reason that it is inconsistent with the compact between the States
of Virginia and Kentucky, at the time of the admission of the
latter into the Union, by which it was agreed
"That the use and navigation of the River Ohio, so far as the
territory of the proposed, or the territory that shall remain
within the limits of this commonwealth, lies thereon shall be free
and common to the citizens of the United States,"
and which compact was assented to by Congress at the time of the
admission of the state.
This Court held, in the case of
Green v.
Biddle, 2 Wheat.
Page 59 U. S. 433
1, that an act of the Legislature of Kentucky in contravention
of the compact was null and void within the provision of the
Constitution forbidding a state to pass any law impairing the
obligation of contracts. But that is not the question here. The
question here is whether or not the compact can operate as a
restriction upon the power of Congress under the Constitution to
regulate commerce among the several states? Clearly not. Otherwise
Congress and two states would possess the power to modify and alter
the Constitution itself.
This is plain that it is unnecessary to pursue the argument
further. But we may refer to the case of
Wilson v.
Mason, 1 Cranch 88,
5 U. S. 92, where
it was held that this compact, which stipulated that rights
acquired under the Commonwealth of Virginia shall be decided
according to the then existing laws, could not deprive Congress of
the power to regulate the appellate jurisdiction of this Court and
prevent a review where none was given in the state law existing at
the time of the compact. Again it is insisted that the act of
Congress is void as being inconsistent with the clause in the ninth
section of Article First of the Constitution, which declares
that
"No preference shall be given by any regulation of commerce or
revenue to the ports of one state over those of another; nor shall
vessels bound to or from one state be obliged to enter, clear, or
pay duties in another."
It is urged that the interruption of the navigation of the
steamboats engaged in commerce and conveyance of passengers upon
the Ohio River at Wheeling from the erection of the bridge and the
delay and expense arising therefrom virtually operate to give a
preference to this port over that of Pittsburgh; that the vessels
to and from Pittsburgh navigating the Ohio and Mississippi Rivers
are not only subjected to this delay and expense in the course of
the voyage, but that the obstruction will necessarily have the
effect to stop the trade and business at Wheeling or divert the
same in some other direction or channel of commerce. Conceding all
this to be true, a majority of the Court are of opinion that the
act of Congress is not inconsistent with the clause of the
Constitution referred to -- in other words, that is not giving a
preference to the ports of one state over those of another within
the true meaning of that provision. There are many acts of Congress
passed in the exercise of this power to regulate commerce providing
for a special advantage to the port or ports of one state, and
which very advantage may incidentally operate to the prejudice of
the ports in a neighboring state, which have never been supposed to
conflict with this limitation upon its power. The improvement of
rivers and harbors, the erection of lighthouses, and other
facilities of commerce, may be referred to as examples. It will not
do to say that the exercise of an
Page 59 U. S. 434
admitted power of Congress conferred by the Constitution is to
be withheld if it appears or can be shown that the effect and
operation of the law may incidentally extend beyond the limitation
of the power. Upon any such interpretation, the principal object of
the framers of the instrument in conferring the power would be
sacrificed to the subordinate consequences resulting from its
exercise. These consequences and incidents are very proper
considerations to be urged upon Congress for the purpose of
dissuading that body from its exercise, but afford no ground for
denying the power itself, or the right to exercise it.
The Court is also of opinion that according to the true
exposition of this prohibition upon the power of Congress, the law
in question cannot be regarded as in conflict with it.
The propositions originally introduced into the convention from
which this clause in the Constitution was derived declared that
Congress shall not have power to compel vessels belonging to
citizens or foreigners to enter or pay duties or imposts in any
other state than that to which they were bound, nor to clear from
any other than that in which their cargoes were laden. Nor shall
any privilege or immunity be granted to any vessels on entering or
clearing out, or paying duties or imposts, in one state in
preference to another. Also that Congress shall not have power to
fix or establish the particular ports for collecting the duties or
imposts in any state unless the state should neglect to fix them
upon notice. I give merely the substance of the several
propositions.
Luther Martin, in his letter to the Legislature of Maryland,
says that these propositions were introduced into the convention by
the Maryland delegation, and that without them, he observes, it
would have been in the power of Congress to compel ships sailing in
or out of the Chesapeake to clear or enter at Norfolk or some port
in Virginia -- a regulation that would be injurious to the commerce
of Maryland. It appears also from the reports of the convention
that several of the delegates from that state expressed
apprehensions that under the power to regulate commerce Congress
might favor ports of particular states by requiring vessels
destined to other states to enter and clear at the ports of the
favored ones, as a vessel bound for Baltimore to enter and clear at
Norfolk.
These several propositions finally took the form of the clause
in question, namely:
"No preference shall be given by any regulation of commerce or
revenue to the ports of one state over those of another, nor shall
vessels bound to or from one state be obliged to enter or clear or
pay duties in another."
1 Elliot's Deb. 266, 270, 279, 280, 311, 375; 5
Ib.,
478, 483, 502, 545.
The power to establish their ports of entry and clearance by
Page 59 U. S. 435
the states was given up and left to Congress. But the rights of
the states were secured by the exemption of vessels from the
necessity of entering or paying duties in the ports of any state
other than that to which they were bound, or to obtain a clearance
from any port other than at the home port or that from which they
sailed. And also by the provision that no preference should be
given by any regulation of commerce or revenue to the ports of one
state over those of another. So far as the regulation of revenue is
concerned, the prohibition in the clause does not seem to have been
very important, as in a previous section, 8, it was declared, that
"all duties, imposts, and excises, shall be uniform throughout the
United States," and as to a preference by a regulation of commerce,
the history of the provision as well as its language looks to a
prohibition against granting privileges or immunities to vessels
entering or clearing from the ports of one state over those of
another. That these privileges and immunities, whatever they may be
in the judgment of Congress, shall be common and equal in all the
ports of the several states. Thus, much is undoubtedly embraced in
the prohibition, and it may certainly also embrace any other
description of legislation looking to a direct privilege or
preference of the ports of any particular state over those of
another. Indeed, the clause, in terms, seems to import a
prohibition against some positive legislation by Congress to this
effect, and not against any incidental advantages that might
possibly result from the legislation of Congress upon other
subjects connected with commerce and confessedly within its
power.
Besides, it is a mistake to assume that Congress is forbidden to
give a preference to a port in one state over a port in another.
Such preference is given in every instance where it makes a port in
one state a port of entry and refuses to make another port in
another state a port of entry. No greater preference, in one sense,
can be more directly given than in this way, and yet the power of
Congress to give such preference has never been questioned. Nor can
it be, without asserting that the moment Congress makes a port in
one state a port of entry, it is bound at the same time to make all
other ports in all other states ports of entry. The truth seems to
be that what is forbidden is not discrimination between individual
ports within the same or different states, but discrimination
between states, and if so, in order to bring this case within the
prohibition it is necessary to show not merely discrimination
between Pittsburgh and Wheeling, but discrimination between the
ports of Virginia and those of Pennsylvania.
Upon the whole, without pursuing the examination further, our
conclusion is that, so far as respects that portion of the decree
which directs the alteration or abatement of the bridge, it
Page 59 U. S. 436
cannot be carried into execution, since the act of Congress
which regulates the navigation of the Ohio River, consistent with
the existence and continuance of the bridge, and that this part of
the motion in behalf of the plaintiff must be denied. But that so
far as respects that portion of the decree which directs the costs
to be paid by the defendants, the motion must be granted.
A motion has also been made on behalf of the plaintiff for
attachments against the president of the Bridge Company and others
for disobedience of an injunction issued by MR. JUSTICE GRIER, in
vacation, on the 27th June, 1854.
It appears that since the rendition of the decree of this Court
and the passage of the act of Congress, and before any proceedings
taken to enforce the execution of the decree notwithstanding this
act, the bridge was broken down in a gale of wind, leaving only
some of the cables suspended from the towers across the river. Upon
the happening of this event a bill was filed by the plaintiff and
an application for the injunction above mentioned was made, which
was granted, enjoining the defendants, their officers and agents,
against a reconstruction of the bridge unless in conformity with
the requirements of the previous decree in the case. The object of
the injunction was to suspend the work, together with the great
expenses attending it, until the determination of the question by
this Court as to the force and effect of the act of Congress in
respect to the execution of the decree. The defendants did not
appear upon the notice given of the motion for the injunction, and
it was consequently granted without opposition.
After the writ was served, it was disobeyed, the defendants
proceeding in the reconstruction of the bridge, which they had
already begun before the issuing or service of the process.
A motion is now made for attachments against the persons
mentioned for this disobedience and contempt.
A majority of the Court is of opinion, inasmuch as we have
arrived at the conclusion that the act of Congress afforded full
authority to the defendants to reconstruct the bridge, and the
decree directing its alteration or abatement could not therefore be
carried into execution after the enactment of this law, and
inasmuch as the granting of an attachment for the disobedience is a
question resting in the discretion of the Court, that under all the
circumstances of the case, the motion should be denied.
Some of the Judges also entertain doubts as to the regularity of
the proceedings in pursuance of which the injunction was
issued.
MR. JUSTICE WAYNE, MR. JUSTICE GRIER, and Mr. MR. JUSTICE CURTIS
are of opinion that upon the case presented, the attachment for
contempt should issue, and in which opinion I concur.
Page 59 U. S. 437
The motion for the attachment is denied, and the injunction
dissolved.
MR. JUSTICE McLEAN, dissenting.
A motion was made at the last term for process of contempt
against the bridge company for not complying with the decree of
this Court to elevate or abate the suspension bridge or open a draw
in the bridge over the western branch of the Ohio so as to afford a
safe channel for steamboats when the water is too high for them to
pass under the suspension bridge, and also for not obeying the
injunction granted &c.
In opposition to this motion, the Act of Congress of the 31st of
August, 1852, is set up, which purports to legalize both
bridges.
The 6th section of the above act provides
"That the bridges across the Ohio River at Wheeling, in the
State of Virginia, and at Bridgeport, in the State of Ohio,
abutting on Zane's Island, in said river are hereby declared to be
lawful structures in their present position and elevation, and
shall be so held and taken to be, anything in any law or laws of
the United States to the contrary notwithstanding."
"7th Section. And be it further enacted that the said bridges
are declared to be and are established post roads for the passage
of the mails of the United States, and that the Wheeling &
Belmont Bridge Company are authorized to have and maintain their
said bridges at their present site and elevation, and the officers
and crews of all vessels and boats navigating said river are
required to regulate the use of their said vessels and boats and of
any pipes or chimneys belonging thereto so as not to interfere with
the elevation and construction of said bridges."
This Court, in the exercise of its judicial functions, with the
approbation of seven of its members, which included all the Judges
present with but one exception, took jurisdiction of a complaint
made by the State of Pennsylvania against the Wheeling Bridge
Company, which was charged with having constructed its bridge so
low as to cause a material obstruction to the commerce of the Ohio
River, and which was especially injurious to the State of
Pennsylvania, which had expended several millions of dollars in the
construction of lines of improvement from Philadelphia to
Pittsburgh -- such as turnpike roads, railroads, canals, and
slackwater navigation -- over which more than fifty millions' worth
of property were transported annually in connection with the Ohio
River, and that any material obstruction to the navigation of the
river by the bridge would be injurious to that state by lessening
the transportation of passengers and freight on the above
lines.
After a very tedious and minute investigation of the facts
of
Page 59 U. S. 438
the case, which embraced the reports of practical engineers,
depositions from the most experienced rivermen, statements of the
stages of water in the river throughout the year, and also after a
full consideration of the legal principles applicable to the matter
in controversy, six of the members of this tribunal, two only
dissenting, were brought to the conclusion that the bridge was a
material obstruction to the navigation of the river at seasons of
the year and under circumstances which rendered its navigation most
important to the public and to the complainant, and that there was
no adequate remedy for it by an action at common law.
From the facts developed in the course of the investigation, it
appeared that the seven passenger packets, which plied between
Cincinnati and Pittsburgh, whose progress was obstructed by the
bridge, conveyed about one-half of the goods, in value, which were
transported on the river and three fourths of the passengers
between the above cities. That each packet transported annually
thirty thousand nine hundred and sixty tons of freight and twelve
thousand passengers.
It appeared that a steamboat drawing five feet water, and whose
chimneys were seventy-nine feet six inches high, could never pass
under the apex of the bridge at any stage of the water without
lowering its chimneys. And the Court found by lowering the
chimneys, including the expense of machinery and delay of time,
without an estimate as to the dangers incurred by the operation,
that a tax was imposed upon the seven packets, annually, of
$5,598.00, which sum was exacted from the owners for the
accommodation of the crossing public and the bridge
proprietors.
The Court also found that the cost of each packet per running
hour was eight dollars and thirty-three cents, and, as was
estimated, if the chimney should be made shorter so as to pass
under the bridge at an ordinary stage of water, it would cause the
average loss of four hours in each trip between Cincinnati and
Pittsburgh, which would amount to the sum of thirty-three dollars
and thirty-two cents, which, being multiplied by sixty, the average
number of trips each season, would amount to the sum of $1,999.20,
and this, being multiplied by seven, would make the sum of
$13,994.40, which would be an annual loss by the owners of these
packets.
The Court also found that from the great weight of the chimneys
of the packets and other boats of that class, they could not be
lowered by hinges at the tops; that they could only be let down at
the hurricane deck by means of a derrick. The average weight of the
chimneys which must be lowered upon each of the large boats was
about four tons, and if this enormous
Page 59 U. S. 439
weight, hanging over the cabin, or rather over the berths of the
passengers, in the process of lowering, should come down by the
run, their weight would crush the hurricane deck, break through the
berths of the cabin, and be arrested, probably, only by the cargo
or the lower flooring of the vessel.
For these reasons, and others contained in the opinion of the
Court, they came to the decision that the bridge obstructed the
navigation of the Ohio and to the irremediable injury at law of the
public works of Pennsylvania. But to avoid any greater hardship on
the bridge owners than would be required by the maintenance of the
commercial right, this Court decreed that if the defendant would
open a draw in the western channel which would admit the passage of
boats, when, from the high water, they could not pass under the
suspension bridge, that it would remove all reasonable ground of
complaint by the plaintiffs. But this it refused to do, and invoked
the legislation of Congress successfully, in procuring the passage
of the act above cited.
That Congress has a constitutional power to regulate commerce
among the states, as with foreign nations, must be admitted. And
where the Constitution imposes no restriction on this power, it is
exercised at discretion, and the correction of impolicy, or abuse,
is only through the ballot box. During the existence of the
embargo, in the year 1808, it was contended that, under the
commercial power, an embargo could not be imposed, as it destroyed
commerce. But it was held otherwise; so that the constitutionality
of a regulation of commerce by Congress does not depend upon the
policy and justice of such an act, but generally upon its
discretion.
An embargo is a temporary regulation, and is designed for the
protection of commerce, though, for a time, it may suspend it.
There are, however, limitations on the exercise of the commercial
power by Congress. As stated in the opinion of the Court, Congress
had regulated the commerce of the Ohio River. But all such
regulations, before the passage of the above act, were of a general
character, and tended to the security of transportation, whether of
freight or passengers.
The decree in the
Wheeling Bridge case was the result
of a judicial investigation, founded upon facts ascertained in the
course of the hearing. It was strictly a judicial question. The
complaint was an obstruction of commerce, by the bridge, to the
injury of the complainant, and the Court found the fact to be as
alleged in the bill. It was said by Chief Justice Marshall, many
years ago, that Congress could do many things, but that it could
not alter a fact. This it has attempted to do in the above act. An
obstruction to the navigation of the river was, technically, a
nuisance, and, in their decree, this Court so pronounced.
Page 59 U. S. 440
The compact between Virginia and Kentucky, which "declared, that
the use and navigation of the River Ohio should be free and common
to the citizens of the United States," was incorporated into the
Kentucky Constitution of 1791, and received the sanction of
Congress in the admission of that state into the Union. This
compact bound both parties; and this Court held that a violation of
it by a law of Kentucky, called the occupying claimant law, was
void, as it impaired the obligation of the compact. Virginia, no
more than Kentucky, could violate any of its provisions, although
they extended to citizens of the Union.
The effect that the act of Congress shall have upon the decree
of the Court, I will now consider. This subject can be treated only
with the profoundest respect for the legislative action of the
nation, and with a sincere desire to give to it all the effect
which such an expression should have.
The Congress and the Court constitute coordinate branches of the
government; their duties are distinct and of a different character.
The judicial power cannot legislate, nor can the legislative power
act judicially. The Constitution has declared, that the judicial
power shall extend to all cases in law and equity arising under the
Constitution, the laws of the United States, and treaties &c.
All legislative powers are vested in Congress. While these
functionaries are limited to their appropriate duties as vested,
there can be little or no conflict of jurisdiction.
From the organization of the legislative power, it is unfitted
for the discharge of judicial duties, and the same may be said of
this Court in regard to legislation. It may therefore happen that
when either trenches upon the appropriate powers of the other,
their acts are inoperative and void.
The judicial power is exercised in the decision of cases; the
legislative in making general regulations by the enactment of laws.
The latter acts from considerations of public policy, the former by
the pleadings and evidence in a case. From this view it is at once
seen that Congress could not undertake to hear the complaint of
Pennsylvania in this case, take testimony or cause it to be taken,
examine the surveys and reports of engineers, decide the questions
of law which arise on the admission of the testimony, and give the
proper and legal effect to the evidence in the final decree. To do
this is the appropriate duty of the judicial power. And this is
what was done by this Court before the above act of Congress was
passed. The Court held that the bridge obstructed the navigation of
the Ohio River and that consequently it was a nuisance. The act
declared the bridge to be a legal structure, and consequently that
it was not a nuisance. Now is this a legislative or a judicial act?
Whether
Page 59 U. S. 441
it be a nuisance or not depends upon the fact of obstruction,
and this would seem to be strictly a judicial question, to be
decided on evidence produced by the parties in a case.
We do not speak of a public commercial right, but of an
obstruction to it by which an individual wrong is done that at law
is irremediable. A regulation of the public right belongs
exclusively to Congress. It is a question of policy which seldom,
if ever, comes within the range of judicial action. All such
questions belong to the legislative power.
The words of the seventh section of the act are,
"That the said bridges are declared to be and are established
post roads for the passage of the mails of the United States, and
that the Wheeling & Belmont Bridge Company are authorized to
have and maintain their said bridges, at their present site and
elevation, and the officers and crews of all vessels and boats
navigating the river are required to regulate the use of their said
vessels and boats and of any pipes or chimneys belonging thereto so
as not to interfere with the elevation and construction of said
bridges."
The provisions of this section are:
1. The bridges are declared to be post roads; and
2. The pipes and chimneys of the boats are required to be cut
down, so as not to interfere with said bridges.
And first, as to the effect of making the bridges post
roads:
By the Act of the 7th July, 1838, all railroads are declared to
be post roads, and, for more than twenty years, all navigable
waters on which steamboats regularly ply are established as post
roads.
The policy of extending the lines of post roads on all railroads
and navigable waters was to require, under a penalty, all boats and
railroad cars to deposit in post offices all letters which they may
carry, so that the postage may be charged. It gives to the
government no rights on these lines of communication, except where
the mail may be carried under a contract, which, if obstructed,
subjects the offender to prosecution. It gives to the government no
other interest in or control over the road.
The railroad may be changed at the will of the proprietors, and
the mail will not be carried in the cars, except by contract, for
which a compensation is paid. The same principle applies to a
turnpike road on which the mail is carried. Even an ordinary road,
though a post road, may be altered or vacated at the will of the
local authority.
It is difficult to perceive what benefit can result to the
public from these bridges being declared a post road. It cannot use
the bridges without paying toll the same as for the use of a
turnpike road or railroad. It does not prevent the Bridge
Company
Page 59 U. S. 442
from pulling down the bridge or altering it in any respect. They
are under no obligation by reason of this use to keep up the bridge
or repair it. They may abandon it, and if it should be again
prostrated by the winds, they are not obliged to rebuild it.
The idea that making the bridge a post road would exempt it from
the consequence of being a nuisance, is wholly unsustainable.
Should the contractor to carry the mail refuse or neglect to pay
the customary tolls, he would be liable to a suit for the amount.
If one of the Pittsburgh packets carry the mail under a contract
with the post office department, and the bridge should obstruct the
boat, such an obstruction would make the bridge company liable,
unless the above act, which gives a preference to the crossing
mail, applies a different rule to the mail boat, and it would seem
that no such preference can arise under the law declaring the
bridge to be a post road.
But is there a power in Congress to legalize a bridge over a
navigable water within the jurisdiction of any state or states? It
has the power to regulate commerce among the several states,
requiring two or more states to authorize the regulation. But this
does not necessarily include the power to construct bridges which
may obstruct commerce, but can never increase its facilities on a
navigable water. Any power which Congress may have in regard to
such a structure is indirect, and results from a commercial
regulation. It may, under this power, declare that no bridge shall
be built which shall be an obstruction to the use of a navigable
water. And this, it would seem, is as far as the commercial power
by Congress can be exercised.
The same power that would enable Congress to build a bridge over
a navigable stream would authorize it to construct a railroad or
turnpike road through the states of the Union, as it might deem
expedient. This power may have been asserted in regard to post
roads, but the settled opinion now seems to be, that to establish
post roads within the meaning of the Constitution is to designate
them. In this sense, Congress may establish post roads extending
over bridges, but it can neither build them nor exercise any
control over them, except the mere use for the conveyance of the
mail on paying toll.
It has often been held, that in throwing a bridge across a
navigable river or arm of a lake, or the sea, the sovereign power
of the state in some form may authorize it, under such restrictions
and conditions as may be considered best for the public. But this
power must always be so exercised as not materially to obstruct
navigation. Over this public right Congress exercises exclusive
legislation, except where the Constitution restricts it, and the
judicial power can never interpose except in regard to
Page 59 U. S. 443
private injuries. It would be otherwise if Congress should
authorize an indictment for obstructing the public right of
navigation on the Ohio or generally. If, under the commercial
power, Congress may make bridges over navigable waters, it would be
difficult to find any limitation of such a power. Turnpike roads,
railroads, and canals might on the same principle be built by
Congress. And if this be a constitutional power, it cannot be
restricted or interfered with by any state regulation. So
extravagant and absorbing a federal power as this has rarely, if
ever, been claimed by anyone. It would in a great degree supersede
the state governments by the tremendous authority and patronage it
would exercise. But if the power be found in the Constitution, no
principle is perceived by which it can be practically restricted.
This dilemma leads us to the conclusion that it is not a
constitutional power. Having arrived at this point, it only remains
to say that the act of Congress declaring the bridge to be a legal
structure, being the exercise of a judicial and an appellate power,
is unconstitutional, and consequently inoperative. It is what it
purports to be, a reversal of the decree of this Court, in effect
if not in terms.
Under the commercial power, Congress may declare what shall
constitute an obstruction of commerce on a navigable water, and so
far as the public right is concerned, there is no limitation to the
exercise of this power unless it be found in the Constitution.
It must be admitted that the provision in the 7th section in
regard to the length of the pipes and chimneys of the boats which
ply on the Ohio from and to Pittsburgh is a commercial regulation.
Congress have required the boilers of steamboats to be inspected,
and that an iron chain should be used as a tiller rope on all
steamboats, and this has been required with a view to the safety of
the boat, its passengers and cargo. In the event of fire the rope
is generally burnt, and the boat becomes unmanageable. This is as
far as Congress has legislated, in regard to the tackle of the
boat. No attempt has before been made to regulate the height of the
chimneys.
From facts above stated, it appears the speed of the seven
packets, by cutting down the chimney, would be reduced four hours,
on an average, each, on a trip between Pittsburgh and Cincinnati.
This, as the statement shows, would increase the expense of the
owners of the seven packets, in addition to the loss of time,
$13,994.40 per annum. Such a regulation would seem to be the more
objectionable, as the loss arises from the preference given to the
bridge, which the public accommodation does not require.
But there is another objection of a more serious nature. In
Page 59 U. S. 444
the 9th section of the 2d Article of the Constitution, it is
declared "that no preference shall be given, by any regulation of
commerce or revenue, to the ports of one state over those of
another." This can have no relation to "duties and imposts," as, in
the 8th section, it is declared "they shall be uniform throughout
the United States." The clause must refer to some other regulation,
and it applies, of course, to all regulations affecting
commerce.
It was said in the late argument of this case that the
Pittsburgh packets had done a larger business in transportation the
last year, than within the same time at any former period. If this
be so, the injury by cutting down the chimneys of all the boats to
and from Pittsburgh must amount to a larger sum than above stated.
Nothing could more forcibly illustrate the propriety of the above
provision in the Constitution, that no port in one state shall have
a preference over those of another.
Practical knowledge in regard to steamboat and railroad
transportation of freight is better than theory. Notwithstanding
the lines of railroad from Pittsburgh to Cincinnati, and to St.
Louis, by the way of Chicago, for the past year have been in
operation, the business on the steamboat lines has greatly
increased in freight; and from published prices it would seem that
the water transportation is three times cheaper than the railroad,
and, on account of the frequent detention of freight cars, is much
more expeditious.
But it is said many regulations of commerce, from local
circumstances, cannot operate equally on all ports. As, for
instance, a breakwater may be more beneficial to one port than
another; and the same inequality may exist from the establishment
of lighthouses and the improvement of harbors. But these are
incidental and not direct consequences, resulting from the exercise
of the legislative power, and no prudence can, effectually, guard
against them. As near as may be, equal facilities should be given
to ports of equal importance; this, however, is a matter for the
decision of Congress, and does not belong to the judiciary. But
where a prohibition is imposed on Congress in the exercise of the
commercial power, and it is not regarded, it is a judicial
question, and this is the only check to be relied on against such
unconstitutional legislation.
It is objected that the Court cannot determine what degree of
preference shall be given to one port over another, to make the
regulation come within the prohibition. If this be so, then is the
constitutional prohibition a dead letter; but this is not the
practical view which this Court have uniformly taken of the
Constitution. The restrictions on state powers stand upon the same
footing, and no insuperable difficulty has been found in giving
effect to them.
Page 59 U. S. 445
"No state shall coin money; emit bills of credit; make anything
but gold and silver coin a tender in payments of debts; pass any
bill of attainder,
ex post facto law, or law impairing the
obligation of contracts."
To determine the unconstitutionality of a law under some of
these prohibitions would be attended with as much, if not more,
difficulty than to say whether a commercial regulation gives a
preference to one port over another.
In the case of
McCulloch v. State of
Maryland, 4 Wheat. 431, the Court said "that the
power to tax
the Bank of the United States' involves the power
to destroy," and on this ground the tax on the bank by the
Legislature of Maryland was declared to be unconstitutional and
void. If this rule be applied to the point under consideration, no
doubt could exist. Congress are prohibited from giving a preference
to one port over another in different states, and consequently, if
any such preference be given, the regulation is void. Not an
incidental preference, but a regulation which necessarily acts
injuriously and oppressively on one to the exclusion of other
ports.
Suppose Congress had declared by law that all steamboats plying
to and from Pittsburgh should not use chimneys more than forty feet
high, which would essentially retard their progress and
consequently injure their business, would any court hesitate to
pronounce such a regulation unconstitutional as giving a preference
to all other ports on the river over that of Pittsburgh. This
Congress has in effect done, and the only justification for it must
be found, if any exist, in the regulated height of the bridge. But
the bridge, at a very small expense comparatively, could have been
elevated as our decree required, and as the charter under which it
was built also required. Less than this: if a draw had been made in
the bridge over the western channel, so as to enable boats to pass
up and down the river when they could not pass under the suspension
bridge, nothing more was required. The expense of the draw, it is
believed, would not exceed twenty-five thousand dollars -- a sum
less, as it would seem, than the annual injury inflicted on the
commerce of Pittsburgh by the bridge.
If the regulation of the chimneys of steamboats, as in the law
to protect the bridge, would be unconstitutional without the
bridge, it is not perceived how the bridge could make it
constitutional. The right to cross the river by a bridge and to
navigate it is admitted, but these public rights are not
incompatible. They can both be enjoyed without any material
interference of the one with the other. This being the case,
Congress, it would seem, cannot restrict the right to navigate the
river for the benefit of the bridge. It cannot violate the
constitutional inhibition
Page 59 U. S. 446
in giving a preference to other ports over that of Pittsburgh by
declaring the Wheeling Bridge formed no obstruction to navigation.
The Constitution declares Congress shall not give a preference to
one part over another; the act, if done, is not constitutional,
though done under the power to regulate commerce.
The equality which such a regulation was intended to secure is a
matter intimately connected with the commercial prosperity of the
country. For a wrong thus done by Congress there is no remedy,
except through the exercise of the judicial power. This Court is
sworn to support the Constitution, and in every infraction of that
instrument by Congress or state legislatures, where individual
injury is inflicted, redress may be obtained by action in Court.
Congress is prohibited from laying a duty on exports, except for
port charges. Can a duty be imposed on exports beyond this under
the commercial power? The commercial power is limited in this and
in other cases, and if the limit be exceeded the act is void. The
federal government in all its forms exercises enumerated and
limited powers. But if the limitation depends upon the discretion
of Congress, there is neither limitation nor protection. This is
neither the theory nor the practical operation of the government.
Congress has power to regulate commerce, but it has no power in
such regulation to give a preference to one port in a state over
another port in a different state. If it may do this to an extent
materially injurious, it may equally disregard every other
restriction in the Constitution. The regulation of the height of
the chimneys of steamboats which ply to and from Pittsburgh, by the
present elevation of the bridge, is the same in effect and in
principle as if the act had required such steamers to cut down
their chimneys without reference to the bridge. The bridge affords
no justification or excuse for an unconstitutional regulation.
But it is said there is great difficulty in ascertaining the
fact that a regulation gives a preference to one or more ports in a
state over those of another, and it is intimated that a jury should
be called to ascertain the fact. This argument was used in regard
to the fact of obstruction, complained of by Pennsylvania; but this
Court very properly determined that a Court of chancery, having
jurisdiction, could inquire whether the bridge constituted such an
obstruction to commerce as materially to injure the public works of
Pennsylvania, and on such a finding by this Court the late decree
was entered for the removal of the obstruction.
What fact beyond this is necessary to determine the fact of
preference of one port over another? The chimneys of the steamboats
which ply to and from Pittsburgh are required to be
Page 59 U. S. 447
cut down, so as to pass under the bridge. By this the rights of
the port of Pittsburgh are measured by the Wheeling Bridge, and
that bridge, this Court have held, is so material an obstruction to
commerce as to be a nuisance to the State of Pennsylvania.
This obstruction or nuisance consists in the necessity, when a
boat passes under the bridge, of lowering its chimneys or cutting
them down, so as to pass under it, and if this be a material injury
to the commerce of the State of Pennsylvania, on its lines of
improvement, how much greater the injury to the port of Pittsburgh,
from and to which one hundred millions' worth of property is
transported annually? Can anyone fail to see that the proof of
preference to the port of Wheeling, and those below it, is given by
the regulation complained of, over the port of Pittsburgh and
others above the bridge? The proof of this important fact, as found
by the decision of the Court already pronounced, is more conclusive
to show the preference than to establish the claim of
Pennsylvania.
Can it be urged that this preference is limited to a mere entry
of the port? Had the Wheeling Bridge been constructed over the Ohio
River, a short distance below Pittsburgh, it would have been far
less injurious to that port than it now is; the boats, with their
propelling power undiminished, could have approached near to that
port, where their cargoes are discharged and received.
It is contended that the commerce across the river required the
consideration of Congress equally with that which floated upon its
surface. There is no ground for such an argument. Some twenty-five
or thirty thousand dollars, under the decree, would open a passage
in the western channel so as to remove the obstruction. The annual
injury to the commerce of the port of Pittsburgh by the bridge is
believed to exceed that sum.
Had the act of Congress required all steamboats which ply upon
the Ohio River to cut down their chimneys so as to pass under the
Wheeling Bridge, the regulation, being general, however injurious,
would not have given a preference to one port ever another. It
would have been the exercise of the commercial power within the
Constitution.
The principle involved in this case is of the deepest interest
to the commerce of the West. The Mississippi River and its
tributaries water a country unsurpassed, if equaled, in the world,
in extent and fertility. But if the obstruction of the Wheeling
Bridge may be repeated wherever the crossing public shall think
proper to build a bridge, one third of the internal commerce of the
Union will be materially obstructed. The injury of such a
regulation would be very limited in the Atlantic
Page 59 U. S. 448
states, as there the rivers are short and navigation is
generally limited to the ebb and flow of the tide. If the Wheeling
Bridge be a legal structure, hundreds of bridges on the same
principle may be thrown over the Mississippi and its navigable
tributaries, to the great and remediless injury of western
commerce.
That commerce is rapidly increasing, and at this time it
probably amounts to four hundred millions of dollars annually, and
if the Father of Waters and his tributaries shall have the same
regulation extended to them as is now applied to the Wheeling
Bridge, it will impose a tax upon western commerce of several
hundred thousand dollars annually, and this will be, not for the
advancement of commerce over those waters, as it will greatly
obstruct it, but to save a few thousand dollars in the structure of
each bridge.
In regard to the motion for process of contempt against the
bridge company, we must, I think, be governed by matters which
appear upon the record. Shortly after the first decree was entered,
the defendants made application to Congress for relief. The object
of the bridge company in making this application, was to counteract
and annual the decision of this Court. It is not supposed, however,
that such was the intention of Congress in passing the law. The two
sections referred to were moved as an amendment to an act making
appropriations for the service of the post office department, on
the 31st of August, 1852, at the close of that session. But little
time was afforded for investigation of the important questions
involved in the act. This fact is not stated to impair the force
and effect of the act, but I think it is fit to be considered on
this motion, in regard to the conduct of the bridge company.
The Court may properly consider, if they are not bound to do so,
that the defendants, in making application to Congress, and in
procuring the passage of the act, as having acted in good faith.
And although the law, if it has been passed in violation of the
Constitution, cannot be held valid, yet it may save the defendants
from the contempt charged. On its face, it gave to the bridge
company all that it could desire or ask against the decree of this
Court. It legalized what the Court held to be illegal, and it
required all steamboats, running to and from Pittsburgh, from any
point below Wheeling, to regulate their chimneys so as to pass
under the bridge. It was the exercise of a judicial power without
an examination of the principles of law applicable, and without a
knowledge of the facts on which the decree was founded. No
imputation is cast upon that honorable body, but the fact must be
known to everyone that the senate and house of representatives,
however distinguished for their high ability and legal learning,
could not discharge, to the public advantage, the duties of an
appellate Court.
Page 59 U. S. 449
I have no doubt that the learned judge had power to grant the
injunction. The 5th section of the Act of the 2d of March, 1793, 1
Stat. 334, declares
"That writs of ne exeat and of injunction may be granted by any
Judge of the Supreme Court, in cases where they might be granted by
the Supreme or circuit Court."
The 14th section of the Judiciary Act of 1789 declares that
"The Courts of the United States shall have power to issue writs
of
scire facias, habeas corpus, and all other writs not
specially provided for by statute, which may be necessary for the
exercise of their respective jurisdictions, and agreeable to the
principles and usages of law."
Six of my brethren now hold that the act of Congress arrested
the progress of the Court in carrying their decree into effect, and
gave the defendants a right to rebuild their bridge. The injunction
prohibited them from reconstructing it; can the defendants be
punished for contempt, for doing that which the law authorized?
This view shows that the injunction ought not to have been granted,
as it was against law. And is not this a sufficient excuse for the
contempt charged? My view is that the law was unconstitutional and
void, and yet I consider it as excusing the defendants' contempt. I
cannot punish defendants, by fine or imprisonment, for doing that
which the law authorized them to do.
There was no opposition made when the injunction was applied
for, and it was granted, as a matter of course, on the face of the
bill. Had the act of Congress been set up against the allowance of
the injunction, the motion, in all probability, would have been
referred to the Supreme Court by the judge.
Having come to the conclusion, for the reasons above stated,
that the act of Congress is inoperative and void, although it may
excuse the contempt, it can afford no excuse for a further refusal
to perform the decree. I would therefore order that the final
decree, heretofore made, be carried into effect according to its
true intent, by the first day of October next, and that the
defendants pay the costs.
MR. JUSTICE GRIER.
I concur with the majority of this Court that in cases where
this Court has original jurisdiction, an interlocutory or
preliminary injunction may be awarded, in vacation, by any judge of
the Court. I differ with the majority in declining to punish a
wanton contempt of the process of the Court.
I concur with my brother McLean that Congress cannot annul or
vacate any decree of this Court; that the assumption of such a
power is without precedent, and, as a precedent for the future, it
is of dangerous example.
Page 59 U. S. 450
MR. JUSTICE WAYNE.
I concur with MR. JUSTICES NELSON, GRIER, and CURTIS in thinking
that the attachment for contempt should have been granted by this
Court.
I concur with the majority of the Court in the view taken by
them of the liability of the defendants for the costs of this
suit.
I dissent from the majority of the Court in the opinion given
that the 6th and 7th sections of the Act of the 31st August, 1852,
10 Stat. 112, relieve the defendants from the operation of the
judgment of this Court in behalf of the plaintiff. That judgment
was for the abatement of a nuisance of which the plaintiff
complained. This Court decided it was a nuisance causing injury and
great pecuniary loss inasmuch as it prevented the State of
Pennsylvania from navigating the Ohio River at all stages of its
waters, to the uninterrupted navigation of which they had a right
under the Constitution of the United States. I know of no power in
Congress to interfere with such a judgment under the pretense of a
power to legalize the structure of bridges over the public
navigable rivers of the United States, either within the states or
dividing states from each other, or under the commercial power of
Congress to regulate commerce among the states. Nor does the power
of Congress to establish post offices and post roads give any power
to Congress to do more between the states, or within the states,
than to declare the routes for carrying the mails upon roads
already existing, and to designate the localities upon those roads
where post offices shall be kept for the delivery and transmission
of letters, and other things or parcels which Congress may declare
to be mailable. Whatever Congress may have intended by the act of
August, 1852, I do not think it admits of the interpretation given
to it by the majority of the Court, and if it does, then my opinion
is that the act would be unconstitutional.
I concur with many of the views taken by MR. JUSTICE McLEAN in
his dissenting opinion, but I shall take another opportunity to
express my opinion fully upon the action of this Court and of
Congress in this case.
MR. JUSTICE DANIEL.
In the decision of the Court dissolving the injunction and
refusing the coercive measures asked for in this case, I entirely
concur. But as, in the argument by which the Court have proceeded
to their conclusions, important questions of constitutional law
appear to me to have been, some of them, passed over without
consideration, and others inaccurately expounded, convictions of
duty impel me to express my own interpretation of those questions.
The correctness or incorrectness of that interpretation
Page 59 U. S. 451
is left to the judgment of those whom curiosity or interest may
incline to its examination; but whether examined, or approved, or
condemned, or otherwise, it has been given because commanded by a
sense of obligation, from obedience to which I hold that no one is
or can be absolved.
When the controversy now revived before us was, in January,
1850, for the first time brought to our attention, there suggested
themselves to my mind serious difficulties with respect both to the
authority and the mode by which it was attempted to place that
controversy within the cognizance of this tribunal.
I was unable to perceive by what warrant a judge of a circuit
court, circumscribed in his jurisdiction both as to parties and to
subject matter of litigation within specified limits, could claim
cognizance as to parties and subject matter confessedly beyond the
prescribed bounds of his jurisdiction. Still less could I
comprehend by what warrant a circuit judge could, by an
interlocutory order at chambers relative to rights of person and
property beyond the bounds of his jurisdiction, transfer a
controversy affecting subjects thus situated to the Supreme Court
of the United States.
An attempt to avoid these difficulties (for they were not
directly met) was essayed by the assumption that the application to
the circuit court might be adopted here, as the commencement of an
original suit by the State of Pennsylvania, that state possessing
the right to institute an action in the Supreme Court under the
provision in the Constitution which defines the original
jurisdiction of that Court. Accordingly this case was received and
treated as one authorized by the Constitution in virtue of the
original jurisdiction vested exclusively in the Supreme Court -- a
jurisdiction which an inferior Court or a judge of an inferior
Court could have no power to exert.
However irregular and unauthorized the first proceeding in this
case appeared to me, the granting of the second injunction, and the
measures directed for enforcing it, I am constrained to regard as
still more irregular -- a much wider departure from precedent or
legitimate authority.
This second proceeding brings to our notice the following state
of facts: an application to a circuit judge at chambers to control
by compulsory process persons and property, both of them situated
beyond and without the bounds of his legitimate power. This
application is granted at chambers, and not by a proceeding in
Court at all, and the order of the judge so made, and the mandate
directed by him singly for the execution of his order, are entitled
as a proceeding in and before the Supreme Court, and as an act of
the Supreme Court, and the peculiar and appropriate officer of this
tribunal is ordered to carry that mandate into effect.
Page 59 U. S. 452
According to my interpretation of the Constitution of the United
States, the Supreme Court is a distinct, aggregate, collective body
-- one which can act collectively, and in term or in united session
only. It cannot delegate its functions, nor can it impose its
duties upon any number of the body less than a quorum, constituted
of a majority of its members. Much less can a single judge be
clothed with its joint powers, to be wielded by him at any time or
in any place, or to any extent to which his individual discretion
may point. Yet, in the case before us, we have a proceeding begun,
prosecuted, and consummated in the name of the Supreme Court --
nay, denominated their proper act when eight of the nine judges
constituting this tribunal had no participation in that proceeding,
perhaps never even suspected its existence. It may very well be
inquired whether a majority of the judges, either acting
individually or collectively in Court, would, on principles of
power or of justice, have sanctioned the course pursued in this
case? For one, I can answer that by him it would have been
unhesitatingly rejected.
Yet this course it is now attempted to justify and sustain,
under the 5th section of the act of Congress of the 2d of March,
1793, 1 Stat. 334, which provides that
"writs of
ne exeat and injunction may be granted by any
judge of the Supreme Court in cases where they might be granted by
the Supreme Court or a circuit court."
The inference sought to be drawn from the provision just cited,
I propose cursorily to examine, with the view of showing its
incorrectness as a deduction from the language or the purposes of
that provision, and especially with the view of exposing the total
inapplicability of the attempted conclusion to the facts developed
by the record before us.
The subjects embraced within the proposed inquiry -- namely the
distribution and exercise of power in the different divisions of
the federal judiciary -- the definition and establishment of the
distinctive boundaries within which those several divisions should
revolve, are matters of an importance much too grave to be
incidentally or lightly disposed of. They are matters inseparable
alike from the order and harmony and stability of public authority,
and from the safety and enjoyment of private right.
By the act of Congress establishing the judicial Courts of the
United States, 1 Stat. 81, no power was conferred upon the judges
of the Courts of the United States to grant writs of injunction;
nor was the power to grant an injunction
eo nomine
conferred upon any of the Courts. This authority was, however, as
to the Courts, given by implication in the 14th section of the
statute, which authorized the Courts therein before enumerated, to
grant writs of
scire facias, habeas corpus, and
Page 59 U. S. 453
all other writs not specially provided for by statute, which may
be necessary for the exercise of their respective
jurisdictions.
The feature of this provision proper for consideration here is
this: that the power was conferred upon the Courts, and not upon
the judges, and was given in cases only in which it was necessary
for the exercise of the jurisdiction of those Courts. What was the
jurisdiction of the circuit Courts, as to persons or property, or
both? With respect to proceedings
in rem, as the process
of the Court could not run beyond the prescribed limits of its
appropriate district, the jurisdiction or power of the Court could
be coextensive only with those limits, and was consequently
impotent and null as to any direct control of the subject matter
when situated beyond them. And with respect to the jurisdiction
over persons or parties, we find it declared by the 11th section of
the Judiciary Act, that
"no civil suit shall be brought before either of the said
Courts, against an inhabitant of the United States, in any other
district than that whereof he is an inhabitant, or in which he
shall be found at the time of serving the writ,"
and so careful have been the authors of this restriction to
insure its effectual observance, that in the same section of the
statute they have prohibited every transfer of the interests or
rights of parties made with the view of evading its operation. An
interpretation of the 11th section of the Judiciary Act -- one
conclusive upon the jurisdiction of the circuit courts -- has been
declared in repeated decisions by this Court, as may be seen
amongst other instances which might be adduced, in the cases of
M'Micken v.
Webb, 11 Pet. 36; of
Toland v.
Sprague, 12 Pet. 300; and of
Keary v.
Farmers' and Mechanics' Bank of Memphis, 16 Pet.
89. In the second of the cases just cited, the effect of the
statute in defining the jurisdiction of the circuit courts is
examined with much minuteness and particularity.
It follows, then, by necessary induction, both from the language
of the Judiciary Act and from the interpretation thereof by this
Court, that the jurisdiction -- as auxiliary to which, and as a
means of enforcing its exercise, the power to grant injunctions was
conferred upon the circuit Courts -- is that jurisdiction
restricted to persons and property found within the prescribed
local bounds assigned to those Courts.
But it has been argued that whilst the restrictions above
mentioned may be imposed upon the courts as such, in the most
solemn and deliberate exercise of their functions, the judges
individually, out of court, and distinguished as they are by the
language of the law from the Courts, have been released from the
same or similar restraints, and have been clothed with power
separately to exert this extraordinary jurisdiction over
persons
Page 59 U. S. 454
and property residing or situated anywhere and everywhere within
the United States. Nothing more is required, according to this
argument, to overstep the fixed and designated boundary of the
courts' authority than the
sic jubeo of the individual
judge.
In considering the interpretation now placed upon the 5th
section of the Act of March 2, 1793, the mind is impressed with the
irregularity and inconsistency which this interpretation implies,
and with the inutility and inefficiency for any beneficial object,
of the power it is said to have created. It is certainly a novelty,
and an anomaly in jurisprudence, to allege in a judicial officer
acting out of court, and as it were
in pais, the existence
of a jurisdiction over persons and property with respect to which
he has no power to adjudicate in court, and his acts in relation to
which he possesses no authority to reverse or modify or even to
revise. Yet this is precisely the attitude which the circuit courts
and the judges of those courts are made to occupy in relation to
each other, by the interpretation now attempted.
In the next place, so far as usefulness or efficiency may be
supposed to have been the objects of the statute, much of these are
taken away by denying to the courts the power claimed for the
judges out of court to act upon persons or property beyond the
bounds of the respective circuits. The same necessity which would
dictate a resort to one, requiring equally a resort to both or
either.
Some obscurity and difficulty is perceived and felt as arising
from that portion of ยง 5 of the Act of March 2, 1793, which permits
the judges of the circuit courts to grant injunctions in cases
wherein they might be granted by the Supreme Court, but this
language it is thought, when correctly understood, operates no
change, or extension, or enlargement of the powers and jurisdiction
of the circuit courts, or of the judges of those courts. If indeed
it should be contended that this section of the statute was
designed to confer, or by its terms purported to confer upon the
circuit courts, or upon the judges thereof, the jurisdiction and
functions of the Supreme Court, then must that section, so far at
least, be rejected as absolutely void, being in violation of the
Constitution.
The Supreme Court of the United States is the creature of the
Constitution. By this instrument, its powers and jurisdiction,
original and appellate, are conferred and defined; these are
peculiar and exclusive, and by no legislation can they be enlarged
or diminished, much less can they either in whole or in part, be
delegated to other tribunals or officers of any grade or
description.
I am clearly of the opinion, therefore, that by the 5th
section
Page 59 U. S. 455
of the act of 1793, no power to exercise authority or
jurisdiction appertaining to the Supreme Court was, or could have
been, conferred either upon the circuit courts or upon the judges
thereof; but that this section must be understood as simply
conferring upon the judges a power previously confined to the
courts alone, namely the power to grant injunctions, and this
subject to every limitation by which the circuit courts were
controlled.
But the interpretation of the act of 1793 now contended for,
broad as it is, still is not wide enough to cover the proceeding
which it is now used to shield and protect. To accomplish this end,
it must be stretched still more, and until it can be made to
comprise an identification of a single judge of the Supreme Court
with the entire court itself, and the transformation of an act by
an individual judge -- an act performed without the accustomed
formalities of a regular court -- into a proceeding by the Supreme
Court in the exercise of its constitutional and only legitimate
functions.
The order granting the second injunction in this case, were it
obnoxious to no other objection, appears to me to be unwarranted
and void for the reason that it assumes to contravene and overrule
in effect, if not in terms, an existing decree of this Court,
between these same parties and upon the same subject matter.
The decree of this Court, first pronounced in February, 1852,
decided that the suspension bridge at Wheeling was an obstruction
to the passage of steamboats on the Ohio River, and that unless it
should be elevated to the height of one hundred and eleven feet
above low water mark, before the 1st day of February next following
this decree, it should be abated. Upon a subsequent day of the same
term, the decree was so modified as to substitute for the
requirement of increased elevation, or of the alternative of an
abatement, permission to the proprietors of the suspension bridge
to construct in the permanent wooden bridge, which spans the
western channel of the river, a draw of a capacity sufficient for
the passage of steamboats of the largest class; the additional
distance or the short delay of a few minutes only incident to this
arrangement constituting, as expressed in the language of this
Court, "no appreciable injury to commerce." Liberty was reserved by
this decree to either party to "move the court in relation to this
matter on the 1st Monday of February ensuing."
Vide
54 U. S. 13
How. 625.
In obedience to a notice from the complainant, under the liberty
reserved in the decree, the defendants appeared on the regular
return day by counsel in court; but the complainant failing to
prosecute this motion, it was permitted to be discontinued. To a
second notice to the defendants they again appeared, but
Page 59 U. S. 456
the complainant again making default, was formally called, and
the motion was dismissed.
From this failure or refusal on the part of those who were
authorized to move in the case, this Court, for aught that could be
judicially known to them, might have been justified in the
conclusion, that everything they had ordered had been complied
with, or had been arranged to the mutual satisfaction of the
parties. Certainly up to this period, there was no fact regularly
and formally before them, on which to found or justify process for
contempt. Under this state of things, the suspension bridge at
Wheeling remained, and was authorized to remain.
This court had prescribed the conditions, according to which it
was to stand or to be abated, and had designated the parties by
whom, the modes by which, and the extent to which, the decree might
be carried into effect.
In this attitude of the case, a mandate is issued from a judge
at chambers, superseding the mode pointed out by this Court for the
execution of its decree, and wholly irrespective of any condition
according to which that decree had been, by its own terms,
modified, as above mentioned.
The above mandate assumes to order, in the name of this Court,
that no bridge of an elevation less than that prescribed by this
order, shall be thrown across the Ohio from Zane's Island to
Wheeling, regardless altogether of any facility, however complete,
which might be provided for the passage of steamboats by the
western channel of the river.
This mandate therefore, was itself a palpable violation of the
decree of this Court, and of rights reserved to the defendants by
that decree -- rights which they twice evinced their readiness to
vindicate before this Court, in opposition to the reiterated, but
subsequently abandoned attempts by the complainant to assail
them.
Can contempt, then, be affirmed or imputed with reference to a
readiness to yield obedience to the regular authority of the court,
or with reference to an unwillingness to comply with a proceeding
not merely void in itself, but one also in manifest violation of
the Constitution and the law?
To which it may be asked were the defendants bound to conform to
the authority of this Court, deliberately announced upon a question
regularly before them as a court, or to an order from a single
judge, obviously in contravention of the former, assuming to
exercise an authority belonging only to the court as an aggregate
body, and by which assumption this Court is placed in an attitude
adversary to its own decree?
There is still another view of this case, which, to my mind, is
conclusive against the proceedings on the part of the circuit
Page 59 U. S. 457
judge, and equally so against every motion now urged before us
as founded thereon, or on either the principal or modified decree
heretofore pronounced in this cause.
Previously to the application for the second injunction, the
Congress of the United States, by a formal statutory enactment,
declared the bridges which had been erected over the Ohio at
Wheeling in Virginia, and at Bridgeport in the State of Ohio,
abutting on Zane's Island, to be lawful structures in their present
position and elevation, "anything in any law or laws of the United
States to the contrary notwithstanding." And they further
enacted,
"that the officers and crews of all vessels and boats navigating
the said river, are required to regulate the use of their said
vessels and boats, and any pipes, or chimney, or chimneys belonging
thereto, so as not to interfere with the elevation and structure of
the said bridges."
Vide 10 Stat. 112.
Against the effect of these very explicit enactments, it has
been contended that they are void, because, as it is said, they
reverse a decision of this Court, which Congress has no power to
do. In answer to this argument, it may be conceded that the
position assumed by it might be true with reference to the
adjustment or security of private rights vested under previously
existing laws or adjudications; but such a position is wholly
inapplicable to measures of public policy falling appropriately
within the legislative competency, and much less can it have any
influence to warrant in any other department of the government the
exercise of powers vested exclusively in the national
legislature.
It is impossible to read either the original or the modified
decree, by the majority of the Court in this cause, without
perceiving that both these decrees, as well as the entire argument
in support of them, were based upon the single assumption that the
erection of the suspension bridge at Wheeling was an interference
with the right to regulate commerce vested in Congress by the
Constitution. It is equally manifest, from the arguments and
opinions of the minority of the Court, that the right in Congress
to regulate commerce is not only conceded by the minority, but the
exclusiveness of that power in Congress is insisted upon. These
later opinions maintain the doctrine that Congress alone are
competent to exercise this right or power, and can neither be
controlled nor anticipated with respect to it by the judicial
department, upon any fancied necessity, nor upon any supposed
neglect, or omission, or incompetency, which the latter may impute
to Congress, and may imagine the judicial department called upon to
remedy.
In these views are seen essentially, nay explicitly, the
diversity
Page 59 U. S. 458
existing in the opinions of the majority and minority of the
judges, as declared in this case.
Congress have, by statute already referred to, undertaken to
regulate the commerce upon the Ohio River, so far as the matters
involved in this controversy are concerned. And who shall question
their power to do this? Does it belong to this Court, under any
article or clause of the Constitution, or of any statute, to assume
such a superiority? Congress have ordained that the vehicles of
commerce on the Ohio, the steamboats, shall so graduate the height
of their chimneys, as not to interfere with the bridges at
Wheeling, as existing at the date of the statute. By this they have
at least declared that these bridges are deemed by them no invasion
either of the power or the policy of Congress with reference to the
commerce of the Ohio River. They have regulated this matter upon a
scale by them conceived to be just and impartial, with reference to
that commerce which pursues the course of the river, and to that
which traverses its channel, and is broadly diffused through the
country.
They have at the same time by what they have done, secured to
the government, and to the public at large, the essential advantage
of a safe and certain transit over the Ohio -- an advantage which,
previously to the erection of the Wheeling Bridge, was greatly
desired but never attained.
In what has been done by Congress, I can have no doubt that they
have acted wisely, justly, and strictly within their constitutional
competency. By their action they have completely overthrown every
foundation upon which the decrees of this Court, the orders of the
circuit judge, and every motion purporting to be based upon these
or either of them, could rest. I am therefore of the opinion that
each and every motion submitted by the complainant under color of
the decrees heretofore pronounced in this cause, or of the
injunction awarded by the judge of the circuit court, should be
overruled; that the injunction awarded as aforesaid should be
dissolved, and the bill praying for that injunction should be
dismissed, and that in each instance the defendants should be
decreed their costs.
"
Order -- in the original case"
This Court, at a prior term, to-wit on 27th May, 1852, having
declared that the bridge of the respondents was an obstruction to
the navigation of the Ohio River, and that it did a special damage
to the complainant, and having decreed that the same should be
altered as thereby directed, or removed by the respondents, and the
complainant having subsequently moved this Court for writs of
assistance, of sequestration and of attachment against the said
respondents, and also for a taxation of
Page 59 U. S. 459
the costs decreed by this Court, and for the process of this
Court to enforce the payment thereof by the said respondents, and
the Congress of the United States having by an act passed on the
31st of August, 1852, entitled "An act making appropriations for
the service of the Post Office department, during the fiscal year
ending the 30th of June, 1853, and for other purposes," provided
for the navigation of the Ohio River, and so regulated the
navigation of the said river as to be consistent with the
maintenance of the said bridge. And the respective parties having
been fully heard by counsel, and after mature deliberation
thereupon had by this Court, it is now here considered and decreed
by this Court that the said motion for writs of assistance,
sequestration, and attachment, be and the same is hereby overruled,
and that the said writs be and they are hereby denied. And it is
further considered and decreed by the court that the said
complainant do have and recover from the said respondents the costs
of the said complainant as decreed by this Court on the aforesaid
27th day of May, A.D. 1852, to be taxed by the clerk, and that the
said respondents do pay the same to the complainant within ninety
days from this date, and that, in default of such payment, that
execution do issue therefor to be directed to the Marshal of the
United States for the District of Columbia to enforce the same.
"
Order -- with respect to the bill filed before MR.
JUSTICE GRIER"
"
and injunction issued by his order"
This cause came on to be heard upon the bill of complaint, an
order by the Honorable R. C. GRIER, an Associate Justice of this
Court, on the 23th day of June, 1854, granting an injunction as
prayed for in the said bill, and upon the motion by the complainant
for writs of assistance, of sequestration, and of attachment
against the said respondent, and upon a motion by the respondent to
dissolve the said injunction, and was fully argued by counsel on
both sides; upon consideration whereof, and after mature
deliberation thereupon had, it is now here ordered and decreed by
this Court that the said motion by the said complainant for writs
of assistance, of sequestration, and of attachment, be and the same
is hereby overruled, and that the said injunction, so as aforesaid
granted, be and the same is hereby dissolved.