The power to regulate commerce comprehends the control for that
purpose, and to the extent necessary, of all the navigable waters
of the United States which are accessible from a state other than
those on which they lie, and includes necessarily the power to keep
them open and free from any obstruction to their navigation,
interposed by the states or otherwise. And it is for Congress to
determine when its full power shall be brought into activity, and
as to the regulations and sanctions which shall be provided.
This power, however, covering as it does a wide field and
embracing a great variety of subjects, some of the subjects will
call for uniform rules and national legislation, while others can
be best regulated by rules and provisions suggested by the varying
circumstances of differing places, and limited in their operation
to such places respectively. And to the extent required by these
last cases, the power to regulate commerce may be exercised by the
states.
To explain. Bridges, turnpikes, streets, and railroads, are
means of commercial transportation as well as navigable waters, and
the commerce which passes over a bridge may be much greater than
that which will ever be transported on the water which it
obstructs. Accordingly, in a question whether a bridge may be
erected over one of its own tidal and navigable streams, it is for
the municipal power to weigh and balance against each other the
considerations which belong to the subject -- the obstruction of
navigation on the one hand, and the advantage to commerce on the
other -- and to decide which shall be preferred, and how far one
shall be made subservient to the other. And if such erection be
authorized in good faith, not covertly and for an unconstitutional
purpose, the federal courts are not bound to enjoin it.
However, Congress may interpose whenever it shall be deemed
necessary, by either general or special laws. It may regulate all
bridges over navigable waters, remove offending bridges, and punish
those who shall thereafter erect them. Within the sphere of their
authority, both the legislative and judicial power of the nation
are supreme.
Page 70 U. S. 714
Annunciating these principles on the one hand and on the other,
the court refused to enjoin, at the instance of a riparian owner to
whom the injury would be consequential only, a bridge about to be
built under the authority of the State of Pennsylvania by the City
of Philadelphia over the River Schuylkill, a small river -- tidal
and navigable, however, and on which a great commerce in coal was
carried on by barges -- which river was wholly within the State of
Pennsylvania and ran through the corporate limits of the city
authorized to erect the bridge, and on both sides of which citizens
in great numbers lived, and on both sides of which municipal
authority was exercised on one as much as on the other, the bridge
being a matter of great public convenience every way, and another
bridge, just like it, having been erected and in use for many
years, over the same stream about five hundred yards above.
The Constitution gives to
Congress power to "regulate
commerce between the states," and this case was one relating to the
respective jurisdiction of a state and of the United States over
tide and navigable waters. The case was thus:
The City of Philadelphia, as originally laid out by Mr. Penn,
was situated
between the Delaware and Schuylkill Rivers --
the former a wide river, on the east of the city; the latter a
small and narrow stream, on the west, which, making a curve below
the city, falls into the far larger water about six miles
below the town.
This River Schuylkill is tidal from its mouth, seven and a half
miles upwards -- that is to say, completely past every part of the
rear of the city -- and though narrow, muddy, and shallow, is
navigable for vessels drawing from eighteen to twenty feet of
water.
It is wholly within the State of Pennsylvania. No
large vessels of any kind are seen upon it. Being one outlet of the
coal regions of Pennsylvania, the principal, almost the sole
commerce of the river is coal. But this is a very large commerce,
and one of importance to this country generally. Great numbers of
persons from many states are engaged in it, and many small
steamers, barges, and other vessels concerned in it, are properly
enrolled and licensed as vessels of the United States. Millions of
dollars have been invested in property on the Schuylkill front of
the built city, meant to assist the coal trade. The coal above
spoken of as the subject of this river's commerce is brought by
canal boats into the river just at or above
Page 70 U. S. 715
Philadelphia. The canal boats are then towed by small steam tugs
along the river.
So important, indeed, was this trade in connection with the
Schuylkill considered in 1853 that in that year or thereabouts,
when the legislature of the state proposed to allow the Penrose
Ferry bridge -- a bridge some distance below any ever previously
erected and over deeper and broader parts of the stream -- the City
of Philadelphia, by its councils, then largely, perhaps, influenced
by traders in a great staple of the city, remonstrated against any
legislative license for the new means of crossing, declaring that
by
"this dangerous obstruction, trade amounting to more than a
million of tons annually would be seriously impaired and driven
from that portion of the port, and that the large investments of
the city in her gas works and other property on the Schuylkill and
a large proportion of all the wharf front would be greatly injured
by any further bridge below Gray's Ferry, now the lowest bridge
upon the Schuylkill."
The bridge, however, was authorized.
The space from river to river -- the width of the neck of land,
that is to say, on which "Philadelphia" stands -- may be about two
miles.
Notwithstanding, however, the separating river, residents of
Philadelphia, more than fifty years ago, had their rural homes on
the west side of the Schuylkill. Here was Lansdowne, the Woodlands,
and Belmont, and Solitude -- well known places in the local history
of Philadelphia. Little villages, also, Mantuaville, Hamiltonville
&c., grew up there. From necessity, the great roads from the
interior, including that from the state capital, came to the city
in this direction. Still the region was without the city
limits.
In 1854, the old charter of Philadelphia was abrogated.
"Consolidation" was thought advisable. What had been the County of
Philadelphia was made the city, and the region west of the
Schuylkill was placed under the same government completely as the
region east. Lighting, paying, police, penny-postage, and such like
things as had before belonged to the "city," now were imparted to
the new
Page 70 U. S. 716
region. Mantuaville, Hamiltonville &c., became forgotten
titles, and "West Philadelphia" usurped, in common talk, their
place. The streets running from east to west in "Philadelphia" were
carried, by name and continuous line of survey, so far as
practicable west of the Schuylkill, and the numbers which,
beginning in the old city on the Delaware with Front Street, and
running westward
to the Schuylkill, in progressive numbers
up to Thirtieth, reappeared across the river in Thirty-first
Street, running to a number not yet practically familiar to the
citizens. From its cheaper ground and fresher air, in connection
with street cars found west of the river as east, "West
Philadelphia" -- a sort, as yet, of
urbs in rure, or
rus in urbe -- had become a residence for many hundreds of
persons who passed more or less of every day in the walks of
business in the older parts of the town.
So too of later years, the citizens had laid out various
cemeteries, the Woodlands and others, on the western side of the
river, and had here fixed numerous institutions closely connected
with the city corporation itself, or with churches &c., in the
city; the vast Blockley Hospital, the Burd Orphan Asylum, Christ
Church Hospital, and other like establishments of charity.
From an early date, the river at and just above and below the
city -- that is to say within its tidal and navigable parts -- had
been treated by the State of Pennsylvania as more or less within
her jurisdiction.
Thus, in 1798 what was then called the Permanent Bridge, a
bridge across the river at Market Street, was authorized, [
Footnote 1] and in 1799 a lot granted
by the state for its purposes. [
Footnote 2] This bridge was begun in 1801 and finished in
1805, Judge Peters, the district judge of the Federal Court of
Pennsylvania, himself distinguished as an admiralty lawyer, who was
the proprietor of Belmont, near one end of it, having been chiefly
instrumental in the erection. In 1806, a bridge at
Page 70 U. S. 717
Gray's Ferry (permanent) was authorized; 75 feet high. [
Footnote 3] In the same year, the state
regulated "the upper and lower ferries" [
Footnote 4] opposite the city. In 1811, another bridge
was authorized, at the upper ferry, [
Footnote 5] which was afterward built, burnt down, and
rebuilt. In 1815, a large canal, the Schuylkill Navigation Company,
was authorized, which drains the river immediately above the city.
[
Footnote 6] It was completed
in 1826. In 1822, the Fairmount Waterworks, which dam the river and
supply the old City of Philadelphia with water out of the river,
were completed. In 1837, [
Footnote
7] a bridge was authorized to be built by the Philadelphia,
Wilmington & Baltimore Railroad Company, with a draw of 33
feet, and was afterwards built below the town. In 1838, [
Footnote 8] the West Philadelphia
Railroad Company was authorized to build a bridge at Market or
Callowhill Street. In 1839, [
Footnote 9] a free bridge was authorized at Arch Street.
In 1852, [
Footnote 10] free
bridges were authorized at Chestnut Street and at Girard Avenue.
None of these last four bridges was ever built.
Over one of these bridges runs the great Central Railroad of
Pennsylvania, and over another, below the built city, the Gray's
Ferry bridge, already mentioned, runs the railway from Philadelphia
to Baltimore, which leads from the North to Washington City and the
South. This railroad bridge -- which has a draw, however -- was
built in 1838, though a drawbridge had been there from a time long
before the Revolution.
The right of the state to authorize these bridges had not been
seriously questioned by anyone, while undoubtedly the river from
its mouth to and beyond the port of Philadelphia is and has been
considered as an ancient navigable, public river and common
highway, free to be used and navigated by all citizens of the
United States.
The only legislation, apparently, which Congress had made about
the river was in 1789 and in 1790, in both which
Page 70 U. S. 718
years [
Footnote 11]
Philadelphia was declared a port of entry; in 1793, [
Footnote 12] when the coasting laws were
applied to it; in 1799, [
Footnote 13] when two districts were created in
Pennsylvania; [
Footnote 14]
in 1822, when Philadelphia was made the sole port of entry for the
Philadelphia District; and in 1834, [
Footnote 15] when the limits of the port were enlarged on
the Delaware front. The important acts seemed to be those of 1799
and 1834. The former is in these words:
"The district of Philadelphia shall include all the shores and
waters of the River
Delaware, and the rivers and waters
connected therewith lying within the State of Pennsylvania,
and the
City of Philadelphia shall be the sole port of entry
and delivery of the same."
The subsequent act (that of 1834) thus reads:
"The port of entry and delivery for the district of Philadelphia
shall be bounded by the
Navy Yard on the south and
Gunner's Run on the north, anything in any former law to
the contrary notwithstanding."
No act spoke of the Schuylkill as within the port, though
undoubtedly by its charter the city extended to the Schuylkill. The
soundings of the Coast Survey, authorized by the United States, do
not come into the Schuylkill.
The "Navy Yard" is on the Delaware. "Gunner's Run" was a stream
in the north of the city, falling into the Delaware; but nowhere
touching or feeding the Schuylkill.
Notwithstanding, however, the numerous bridges authorized by the
state and the two or three that had been built, but one
principal connection existed practically between the two
parts of the built and populous city, and this was the old
Permanent or Market Street Bridge: a bridge running from the
western end of one great east and west thoroughfare of the city --
perhaps the greatest -- across the stream; and connecting West
Philadelphia with the more populous "city" as a short and narrow
isthmus might connect two
image:a
Page 70 U. S. 719
continents. There was, indeed, the Wire or Suspension Bridge at
Fairmount; rather above the city at its north extremity, and Gray's
Ferry, sometimes called Baltimore Railroad Bridge, at its southern
end and below the populous districts. But as already said, the old
bridge was the great line of transit -- artery and ligament at once
-- between the districts.
In this state of things, not much set out in the pleadings but
being matters of common notoriety and as such spoken of at the bar,
the Commonwealth of Pennsylvania in 1857 authorized the City of
Philadelphia to erect a permanent bridge over the Schuylkill at
Chestnut Street. This street was about five hundred feet below
Market Street, where was the other and older bridge. The
contemplated erection would be, of course, over a part of the
Schuylkill that was tidal wholly, and navigable. Chestnut Street
now had an existence on both sides of the river. On the eastern, it
is one of the chief thoroughfares of Philadelphia, and in West
Philadelphia, in anticipation of connection with Chestnut Street on
the east, was daily assuming importance. The contemplated bridge
would in fact connect parts of one street, municipally speaking, a
street having one part on the east and one part on the west of the
stream, here about four hundred feet across.
The city being about to begin the erection, Gilman of New
Hampshire, owning valuable coal wharves on the west side of the
river,
just below the old bridge, and which by the
erection of the proposed bridge at Chestnut Street would be shut up
between the two erections, now filed his bill in the Circuit Court
for Pennsylvania to prevent the structure. It was conceded that he
was neither a navigator nor a pilot, nor the owner of a licensed
coasting vessel, and this was objected to him. His title to ask
relief rested on his ownership of coal wharves, as mentioned, and
his citizenship in New Hampshire.
His bill charged that a bridge at that point without suitable
draws would be an unlawful obstruction to the navigation
Page 70 U. S. 720
of the river and an illegal interference with his rights, and
was a public
nuisance producing to him a special damage;
that it was not competent for the Legislature of Pennsylvania to
sanction such an erection, and that he was entitled to be protected
by an injunction to stay further progress on the work, or to a
decree of abatement, if it should have been proceeded with to
completion.
The answer admitted the erection of the bridge complained of,
justified such erection under the act of the Legislature of
Pennsylvania, and alleged that other obstructions of a similar or
greater extent had theretofore been placed across the stream at a
higher point of the river or beyond the complainant's wharves by
virtue of other acts of the same legislature. The answer conceded
that the bridge would prevent masted vessels from approaching to or
unloading at the complainant's wharves, and insisted that this was
the only injury suffered by the complainant, and that for it the
City of Philadelphia, the defendant, was able to respond in
damages. The answer further alleged that the proposed bridge was a
necessity for public convenience.
The bridge, it was admitted, would be not more than thirty feet
high -- the same height as the old one above, at Market Street.
Being an erection of the city, it was built in the best style of
science and with the greatest practicable regard to the navigation
and general interests of commerce, but it necessarily somewhat
impeded navigation. The navigation at that point required a wide
channel. One pier was indispensable. Vessels with masts could not
pass, and the property of the complainant was rendered less
valuable.
Mr. Justice Grier dismissed the bill. The same question nearly
had been then recently considered by him very fully, in an
application made, in New Jersey, to restrain the erection of a
railroad bridge over the Passaic at Newark. The matter had been
there fully argued and deliberately considered, an opinion being
delivered from the bench, dismissing the appeal. That decree had,
by the judgment of this Court, been affirmed, though the case was
not reported, the judgment of affirmance having been by an
Page 70 U. S. 721
equally divided bench. His honor, in accordance with what was
declared in
Queen v. Willis, [
Footnote 16] considering that an affirmance of a
decree was binding irrespective of the number of judges who were in
favor of such judgment, and that the obligation, in point of mere
precedent, was the same whether the court was full and unanimous or
partial and divided, hardly conceived the question open for
discussion before him. [
Footnote
17] The case was, therefore, not argued below.
MR. JUSTICE SWAYNE delivered the opinion of the Court. [
Footnote 18]
There is no contest between the parties about the facts upon
which they respectively rely.
The complainants are citizens of other states, and own a
valuable and productive wharf and dock property above the site of
the contemplated bridge. The river is navigable there for vessels
drawing from eighteen to twenty feet of water. Commerce has been
carried on in all kinds of vessels for many years to and from the
complainants' property. The bridge will not be more than thirty
feet above the ordinary high water surface of the river, and hence
will prevent the passage of vessels having masts. This will largely
reduce the income from the property and render it less
valuable.
The defendants are proceeding to build the bridge under the
authority of an act of the Legislature of Pennsylvania. The
Schuylkill River is entirely within her limits, and is "an ancient
river and common highway of the state." For
Page 70 U. S. 722
many years it has been navigable for masted vessels for the
distance of about seven and a half miles only, from its mouth. At
Market Street, about five hundred feet above Chestnut, there is a
permanent bridge without a draw over the same river, and no higher
above the water than it is intended to elevate the bridge about to
be built. A bridge at Market Street was erected prior, perhaps, to
the year eighteen hundred and nine. It rendered the passage of
masted vessels above that point impossible, and since that time
comparatively few have appeared above the foot of Chestnut Street.
The river there has since been used chiefly as a highway for canal
boats.
The injury to the property of the complainants will be entirely
consequential. A large city is rising up on the opposite side of
the river. The new bridge is called for by public convenience.
The case resolves itself into questions of law.
At the threshold of the investigation we are met by the
objection from the defendants that the complainants, "not being
specially interested in navigation, cannot intervene for its
protection." It is said, "that they are not the owners of licensed
coasting vessels, and are not pilots nor navigators."
As regards this objection, the case is not essentially different
in principle from the
Wheeling Bridge Case.
The further objection was also taken in that case that if a
nuisance existed, it was of a public nature and was an offense
against the sovereignty whose laws were violated, and that the
sovereign only could intervene for the correction of the evil.
It was answered by the Court that wherever a public nuisance is
productive of a specific injury to an individual, he may make it
the foundation of an action at law, and if the injury would be
irreparable, that a court of equity will interpose by injunction.
The decision was not put in anywise upon the ground of the trustee
character of the complainant. The state alleged that she had lines
of improvements for the transportation of freight and
passengers
Page 70 U. S. 723
extending from the east to Pittsburgh, and that by reason of the
bridge about to be erected across the river at Wheeling, and the
obstruction which it would cause to the navigation of that stream,
business would be diverted from her works to other channels, and
that the income from her works would thereby be greatly lessened,
and their value diminished or destroyed. The Court said:
"The State of Pennsylvania is not a party in virtue of her
sovereignty. It does not come here to protect the rights of its
citizens, . . . nor can the state prosecute the suit upon the
ground of any remote or contingent interest in herself. It assumes
and claims not an abstract right, but a direct interest, and that
the power of this Court can redress its wrongs, and save it from
irreparable injury. . . . In the present case, the rights assumed
and relief prayed are in no respect different from those of an
individual. From the dignity of the state, the Constitution gives
to it a right to bring an original suit in this Court, and this is
the only privilege, if the right be established, which the State of
Pennsylvania can claim in the present case."
In regard to the facts, it was said:
"And this injury is of a character for which an action at law
could afford no adequate redress. It is of daily occurrence, and
would require numerous, if not daily, prosecutions for the wrong
done, and from the nature of that wrong, the compensation could not
be measured or ascertained with any degree of precision. The effect
would be if not to reduce the tolls on these lines of
transportation, to prevent their increase with the increasing
business of the country. . . . In no case could a remedy be more
hopeless than an action at common law. The structure complained of
is permanent, and so are the public works sought to be protected.
The injury, if there be one, is as permanent as the works from
which it proceeds, and as are the works affected by it. And
whatever injury there may now be will become greater in proportion
to the increase of population and the commercial development of the
country. And in a country like this, where there would seem to be
no limit to its progress, the injury complained of would be far
greater in its effects than under less prosperous circumstances.
"
Page 70 U. S. 724
The law upon the subject is learnedly and ably examined. The
objections were overruled. Considerations of fact of the same
character with those adverted to exist in the case before us, and
the reasoning and conclusions there are alike applicable in both
cases. Whatever might be our views upon the legal proposition, in
the absence of this adjudication, we are, as we think, concluded by
it. It is almost as important that the law should be settled
permanently as that it should be settled correctly. Its rules
should be fixed deliberately and adhered to firmly unless clearly
erroneous. Vacillation is a serious evil.
"Misera est servitus
ubi lex est vaga aut incerta." This brings us to the
examination of the merits of the case.
The defendants assert that the act of the legislature under
which they are proceeding justifies the building of the bridge.
The complainants insist that such an obstruction to the
navigation of the river is repugnant to the Constitution and laws
of the United States touching the subject of commerce.
These provisions of the Constitution bear upon the subject:
"Congress shall have power . . . to regulate commerce with
foreign nations, among the several states, and with the Indian
tribes; . . . to make all laws which shall be necessary and proper
for carrying into execution the foregoing powers."
"This Constitution, and the laws which shall be made in
pursuance thereof, . . . shall be the supreme law of the land, and
the judges in every state shall be bound thereby, anything in the
constitution or laws of any state to the contrary
notwithstanding."
"The powers not delegated to the United States by the
Constitution nor prohibited by it to the states are reserved to the
states respectively or to the people."
The Act of the 18th of February, 1793, authorizes vessels
enrolled and licensed according to its provisions to engage in the
coasting trade.
Commerce includes navigation. The power to regulate commerce
comprehends the control for that purpose, and to the extent
necessary, of all the navigable waters of the
Page 70 U. S. 725
United States which are accessible from a state other than those
in which they lie. For this purpose, they are the public property
of the nation, and subject to all the requisite legislation by
Congress. [
Footnote 19] This
necessarily includes the power to keep them open and free from any
obstruction to their navigation, interposed by the states or
otherwise, to remove such obstructions when they exist, and to
provide by such sanctions as they may deem proper against the
occurrence of the evil and for the punishment of offenders. For
these purposes, Congress possesses all the powers which existed in
the states before the adoption of the national Constitution and
which have always existed in the Parliament in England.
It is for Congress to determine when its full power shall be
brought into activity, and as to the regulations and sanctions
which shall be provided. [
Footnote 20]
A license under the act of 1793 to engage in the coasting trade
carries with it right and authority. "Commerce among the states"
does not stop at a state line. Coming from abroad, it penetrates
wherever it can find navigable waters reaching from without into
the interior, and may follow them up as far as navigation is
practicable. Wherever "commerce among the states" goes, the power
of the nation, as represented in this Court, goes with it to
protect and enforce its rights. [
Footnote 21] There can be no doubt that the coasting
trade may be carried on beyond where the bridge in question is to
be built.
We will now turn our attention to the rights and powers of the
states which are to be considered.
The national government possesses no powers but such as have
been delegated to it. The states have all but such as they have
surrendered. The power to authorize the building of bridges is not
to be found in the federal Constitution.
Page 70 U. S. 726
It has not been taken from the states. It must reside somewhere.
They had it before the Constitution was adopted, and they have it
still.
"When the Revolution took place, the people of each state became
themselves sovereign, and in that character hold the absolute right
to all their navigable waters and the soil under them for their own
common use, subject only to the rights since surrendered by the
Constitution to the general government. [
Footnote 22]"
In
Pollard's Lessee v. Hagan, [
Footnote 23] this Court said:
"The right of eminent domain over the shores and the soil under
the navigable waters
for all municipal purposes belongs
exclusively to the states within their respective territorial
jurisdictions, and they and they only have the constitutional power
to exercise it. . . . But in the hands of the states this power can
never be used so as to affect the exercise of any national right of
eminent domain or jurisdiction with which the United States have
been invested by the Constitution. For although the territorial
limits of Alabama have extended all her sovereign power into the
sea, it is there, as on the shore, but
municipal power,
subject to the Constitution of the United States and
the laws
which shall have been made in pursuance thereof."
In
Gibbons v. Ogden, it is said:
"Inspection laws form a portion of that immense mass of
legislation which embraces everything within the territory of a
state not surrendered to the general government, all which can be
most advantageously exercised by the states themselves. Inspection
laws, quarantine laws, health laws of every description, as well as
laws for regulating the internal commerce of a state and those
which respect turnpike roads, ferries &c., are component parts
of this mass."
Bridges are of the same nature with ferries, and are undoubtedly
within the category thus laid down. [
Footnote 24]
The power to regulate commerce covers a wide field and embraces
a great variety of subjects. Some of these subjects call for
uniform rules and national legislation; others can
Page 70 U. S. 727
be best regulated by rules and provisions suggested by the
varying circumstances of different localities, and limited in their
operation to such localities respectively. To this extent, the
power to regulate commerce may be exercised by the states.
Whether the power in any given case is vested exclusively in the
general government depends upon the nature of the subject to be
regulated. Pilot laws are regulations of commerce, but if a state
enact them in good faith, and not covertly for another purpose,
they are not in conflict with the power "to regulate commerce"
committed to Congress by the Constitution. [
Footnote 25]
In the
Wheeling Bridge Case, this Court placed its
judgment upon the ground
"that Congress had acted upon the subject, and had regulated 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 Ohio 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. [
Footnote 26]"
The most important authority, in its application to the case
before us, is
Wilson v. Blackbird Creek Marsh Co.
[
Footnote 27] Blackbird
Creek extends from the Delaware River into the interior of the
State of Delaware. The legislature of the state passed an act
whereby the company were
"authorized and empowered to make and construct a good and
sufficient dam across said creek at such place as the managers or a
majority of them shall find to be most suitable for the
purpose,"
&c. The company proceeded to erect a dam whereby the
navigation of the creek was obstructed. The defendant, being the
owner of a sloop of nearly a hundred tons, regularly
Page 70 U. S. 728
enrolled and licensed under the laws of the United States, broke
and injured the dam. The company brought an action of trespass
against him in the Supreme Court of Delaware. The defendant pleaded
that the place where the trespass was committed was
"a public and common navigable creek, in the nature of a
highway, in which the tides had always flowed and reflowed, and
that all the citizens of the United States had a right, with
sloops, and other vessels, to navigate and pass over the same at
all times at their pleasure,"
&c., and therefore &c.
The plaintiffs demurred. The supreme court sustained the
demurrer and gave judgment in their favor. The court of appeals of
that state affirmed the judgment. The case was brought into this
Court by a writ of error. In delivering the opinion of the Court,
Chief Justice Marshall said:
"But the measure authorized by this act stops a navigable creek,
and must be supposed to abridge the rights of those who have been
accustomed to use it; but this abridgment, unless it comes in
conflict with the Constitution or a law of the United States, is an
affair between the government of Delaware and its citizens, of
which this Court can take no cognizance. The counsel for the
plaintiffs in error insist that it comes in conflict with the power
of the United States 'to regulate commerce with foreign nations and
among the several states.'"
He remarked that if
"Congress had passed any law which bore upon the subject, the
Court would not feel much difficulty in saying that a state law,
coming in conflict with such an act, would be void,"
and added in conclusion:
"But Congress has passed no such act. The repugnancy of the law
of Delaware to the Constitution is placed entirely on its
repugnancy to the power to regulate commerce with foreign nations
and among the several states; a power which has not been so
exercised as to affect the question. We do not think that the act
empowering the Blackbird Creek Marsh Company to place a dam across
the creek can, under all the circumstances of the case, be
considered as repugnant to the power to regulate commerce in its
dormant state, or as being in conflict with any law passed on the
subject. "
Page 70 U. S. 729
This opinion came from the same "expounder of the Constitution"
who delivered the earlier and more elaborate judgment in
Gibbons v. Ogden. We are not aware that the soundness of
the principle upon which the Court proceeded has been questioned in
any later case. We can see no difference in principle between that
case and the one before us. Both streams are affluents of the same
larger river. Each is entirely within the state which authorized
the obstruction. The dissimilarities are in facts which do not
affect the legal question. Blackbird Creek is the less important
water, but it had been navigable, and the obstruction was complete.
If the Schuylkill is larger and its commerce greater, on the other
hand, the obstruction will be only partial and the public
convenience, to be promoted, is more imperative. In neither case is
a law of Congress forbidding the obstruction an element to be
considered. The point that the vessel was enrolled and licensed for
the coasting trade was relied upon in that case by the counsel for
the defendant. The Court was silent upon the subject. A distinct
denial of its materiality would not have been more significant. It
seems to have been deemed of too little consequence to require
notice. Without overruling the authority of that adjudication, we
cannot by our judgment annul the law of Pennsylvania.
It must not be forgotten that bridges, which are connecting
parts of turnpikes, streets, and railroads, are means of commercial
transportation as well as navigable waters, and that the commerce
which passes over a bridge may be much greater than would ever be
transported on the water it obstructs.
It is for the municipal power to weigh the considerations which
belong to the subject and to decide which shall be preferred and
how far either shall be made subservient to the other. The states
have always exercised this power, and from the nature and objects
of the two systems of government they must always continue to
exercise it, subject however in all cases to the paramount
authority of Congress, whenever the power of the states shall be
exerted within the sphere of the commercial power which belongs to
the nation.
Page 70 U. S. 730
The states may exercise concurrent or independent power in all
cases but three:
1. Where the power is lodged exclusively in the federal
Constitution.
2. Where it is given to the United States and prohibited to the
states.
3. Where, from the nature and subjects of the power, it must
necessarily be exercised by the national Government exclusively.
[
Footnote 28]
The power here in question does not, in our judgment, fall
within either of these exceptions.
"It is no objection to distinct substantive powers that they may
be exercised upon the same subject." It is not possible to fix
definitely their respective boundaries. In some instances, their
action becomes blended; in some, the action of the state limits or
displaces the action of the nation; in others the action of the
state is void because it seeks to reach objects beyond the limits
of state authority.
A state law requiring an importer to pay for and take out a
license before he should be permitted to sell a bale of imported
goods is void, [
Footnote 29]
and a state law which requires the master of a vessel engaged in
foreign commerce to pay a certain sum to a state officer on account
of each passenger brought from a foreign country into the state is
also void. [
Footnote 30] But
a state, in the exercise of its police power, may forbid spirituous
liquor imported from abroad or from another state to be sold by
retail or to be sold at all without a license, and it may visit the
violation of the prohibition with such punishment as it may deem
proper. [
Footnote 31] Under
quarantine laws, a vessel registered or enrolled and licensed may
be stopped before entering her port of destination or be afterwards
removed and detained elsewhere for an indefinite period, and a bale
of goods upon which the duties have or have not been paid, laden
with infection, may be seized under
Page 70 U. S. 731
"health laws," and if it cannot be purged of its poison, may be
committed to the flames.
The inconsistency between the powers of the states and the
nation as thus exhibited is quite as great as in the case before
us, but it does not necessarily involve collision or any other
evil. None has hitherto been found to ensue. The public good is the
end and aim of both.
If it be objected that the conclusion we have reached will arm
the states with authority potent for evil and liable to be abused,
there are several answers worthy of consideration. The possible
abuse of any power is no proof that it does not exist. Many abuses
may arise in the legislation of the states which are wholly beyond
the reach of the government of the nation. The safeguard and remedy
are to be found in the virtue and intelligence of the people. They
can make and unmake constitutions and laws, and from that tribunal
there is no appeal. If a state exercise unwisely the power here in
question, the evil consequences will fall chiefly upon her own
citizens. They have more at stake than the citizens of any other
state. Hence there is as little danger of the abuse of this power
as of any other reserved to the states. Whenever it shall be
exercised openly or covertly for a purpose in conflict with the
Constitution or laws of the United States, it will be within the
power and it will be the duty of this Court to interpose with a
vigor adequate to the correction of the evil. In the
Pilot
Case, the dissenting judge drew an alarming picture of the
evils to rush in at the breach made, as he alleged, in the
Constitution. None has appeared. The stream of events has since
flowed on without a ripple due to the influence of that
adjudication. Lastly, Congress may interpose whenever it shall be
deemed necessary by general or special laws. It may regulate all
bridges over navigable waters, remove offending bridges, and punish
those who shall thereafter erect them. Within the sphere of their
authority, both the legislative and judicial power of the nation
are supreme. A different doctrine finds no warrant in the
Constitution, and is abnormal and revolutionary.
Page 70 U. S. 732
Since the adoption of the Constitution, there has been but one
instance of such legislative interposition; that was to save, and
not to destroy. The Wheeling bridge was legalized, and a decree of
this Court was in effect annulled by an act of Congress. The
validity of the act under the power "to regulate commerce" was
distinctly recognized by this Court in that case. This is also the
only instance occurring within the same period in which the case
has been deemed a proper one for the exercise by this Court of its
remedial power.
The defendants are proceeding in no wanton or aggressive spirit.
The authority upon which they rely was given and afterwards
deliberately renewed by the state. The case stands before us as if
the parties were the State of Pennsylvania and the United States.
The river being wholly within her limits, we cannot say the state
has exceeded the bounds of her authority. Until the dormant power
of the Constitution is awakened and made effective by appropriate
legislation, the reserved power of the states is plenary, and its
exercise in good faith cannot be made the subject of review by this
Court. It is not denied that the defendants are justified if the
law is valid. We find nothing in the record which would warrant us
in disturbing the decree of the circuit court, which is
therefore
Affirmed with costs.
[
Footnote 1]
3 Smith's Laws 312.
[
Footnote 2]
Ibid., 362.
[
Footnote 3]
4 Sm.Laws 297.
[
Footnote 4]
Ibid., 347.
[
Footnote 5]
5
id. 221.
[
Footnote 6]
6
id. 257.
[
Footnote 7]
Pamphlet Laws of 1836-1837, p. 20.
[
Footnote 8]
Pamphlet Laws of 1837-1838, p. 697.
[
Footnote 9]
Pamphlet Laws of 1838-1839, p. 100.
[
Footnote 10]
Pamphlet Laws of 1852.
[
Footnote 11]
1 Stat. at Large 32, 148.
[
Footnote 12]
Ibid., 305.
[
Footnote 13]
Ibid., 632.
[
Footnote 14]
3
id. 662.
[
Footnote 15]
4
id. 715.
[
Footnote 16]
10 Clark & Finnelly's Appeal Cases 534.
See Krebs v.
Carlisle Bank, 2 Wall. Jr. note 49.
[
Footnote 17]
As part of the judicial history of an interesting question, as
well as for the value which the opinion itself has, a report of the
case referred to above and decided by Grier, J., will be found in a
note [omitted].
[
Footnote 18]
NELSON, J., not having sat and taking no part in the
decision.
[
Footnote 19]
Gibbons v.
Ogden, 9 Wheat. 1;
Corfield v. Coryell, 4
Wash.C.C. 378.
[
Footnote 20]
United States v. New Bedford Bridge, 1 Woodbury &
Minot 420, 421;
United States v.
Coombs, 12 Pet. 72;
New York
v. Milne, 11 Pet. 102,
36 U. S.
155.
[
Footnote 21]
Gibbons v.
Ogden, 9 Wheaton 1;
Steamboat Co. v.
Livingston, 3 Cowen 713.
[
Footnote 22]
Martin v.
Waddell, 16 Pet. 410.
[
Footnote 23]
44 U. S. 3 How.
230.
[
Footnote 24]
People v. S. & R. R. Co., 15 Wendell 113.
[
Footnote 25]
Cooley v. Board of
Wardens, 12 How. 299,
53 U. S.
319.
[
Footnote 26]
59 U. S. 18
How. 430.
[
Footnote 27]
27 U. S. 2 Pet.
250
[
Footnote 28]
Houston v.
Moore, 5 Wheat. 49; Federalist No. 32.
[
Footnote 29]
Brown v.
Maryland, 12 Wheat. 419.
[
Footnote 30]
Passengers'
Cases, 7 How. 273.
[
Footnote 31]
License Cases,
5 How. 504.
MR. JUSTICE CLIFFORD (with whom concurred WAYNE and DAVIS, JJ),
dissenting:
I concur in many of the views expressed by the majority of the
Court in the introductory part of the opinion which has just been
read, and if the decree of the Court had been such as the
propositions there laid down would seem to demand, I might have
felt justified in remaining silent as to certain other propositions
advanced in the concluding part of the opinion which appear to be
of an inconsistent character, and to which I can never assent.
Such, however, is not the fact. On the contrary, the order of the
Court is that the decree entered in the court below dismissing the
bill of
Page 70 U. S. 733
complaint be affirmed, and it must be understood that the
majority of the Court, in directing that decree, adopt the views
expressed in the concluding part of the opinion, else they never
could have agreed to that result. Regarding the matter in that
light, it seems to be an obvious duty that I should express my
dissent from the decree of the Court and briefly assign the reasons
why I cannot concur in the conclusion to which the majority of the
Court have come.
1. Complainants are the owners of a valuable wharf property
situated upon the River Schuylkill, within the port of
Philadelphia, which is a port of entry established by an act of
Congress passed at a very early period in the history of the
country. [
Footnote 2/1] They claim
that the River Schuylkill is an ancient public river and common
highway, and that it is navigable for ships and vessels of the
largest description, from above their wharf property to the sea;
that many of the ships and vessels navigating the river are duly
enrolled and licensed at the port of Philadelphia and other ports
of entry of the United States, under and by virtue of the acts of
Congress in that behalf provided, and that foreign vessels,
entitled to certain rights of commerce and navigation, have long
been accustomed to and are of right entitled to navigate that river
with cargoes bound to the port of Philadelphia, and that such
vessels, in pursuance of that right, have been accustomed to enter
their cargoes at the port and to discharge the same at the wharves
of the port bordering on the river and to load with return cargoes
at the said wharves and clear direct to foreign ports.
Injury alleged is that the respondents have collected materials,
employed workmen, and are now engaged in erecting and constructing
a bridge across the channel of the river at Chestnut Street in the
City of Philadelphia below the place where the wharf property of
the complainants is situated. Bridge about to be erected is, as
alleged and as the plan shows, without any draw and with but a
single pier and at an elevation of only thirty-three feet above the
ordinary water surface of the river.
Page 70 U. S. 734
Substance of the charge as contained in the bill of complaint is
that the erecting and keeping the bridge over and across the
channel of the river in the manner as proposed and threatened will
impede and obstruct the navigation of the river and will hinder and
interrupt the citizens in their lawful use of the same as a common
and public highway, and they also charge that it will hinder and
obstruct licenses granted under the enrollment act and that it will
hinder and obstruct the subjects of foreign countries in the
exercise of their rights of commerce and navigation, and that it
will interrupt, diminish, and greatly tend to destroy the trade,
commerce, and business of the citizens upon the river, to the great
damage and common nuisance of all the citizens of the United
States, and their irreparable injury.
Statement of complainants is that many millions of dollars have
been expended by the citizens of the United States in the
construction of works of public improvement terminating at the head
of tidewater navigation on that river which depend in a great
measure for their prosperity, usefulness, and value upon the free
and unobstructed use of the river, and in this connection they
charge that the bridge will greatly injure and lessen the value of
their wharf property upon the river and will divert commerce and
trade therefrom, and will thereby diminish the tolls, revenue, and
profits of their wharves, and will in fact destroy the trade and
commerce to and from their wharves, to their great damage and
irreparable injury.
Allegation of the bill of complaint also is that the Schuylkill
River, being a navigable river and having a good tidewater
navigation extending to and beyond the wharf property of the
complainants and for about seven miles from its mouth, and being a
branch of the River Delaware -- which river passes by and between
the States of New Jersey and Delaware -- the citizens of all the
states are lawfully entitled to its free navigation and to carry on
their lawful commerce without hindrance or obstruction by the
respondents under the pretense of state authority or any pretense
whatever.
Page 70 U. S. 735
Respondents justify under an act of the General Assembly of the
State of Pennsylvania authorizing them to build the bridge
described in the bill of complaint.
2. Complainants insist that the bridge is a public nuisance, and
pray that it may be abated and for such other and further relief in
the premises as the nature of the case and equity and good
conscience may require. Propositions of the complainants are that
the River Schuylkill is a public navigable river, subject to the
power of Congress to regulate commerce with foreign nations and
among the several states as conferred in the Constitution, and that
Congress has exercised that power and regulated the navigation of
that river within the meaning of the Constitution, and has thereby
secured to the citizens of the several states, by virtue of their
authority so conferred by the Constitution, the free and
unobstructed use of the river as a paramount right for all the
purposes of commerce and navigation.
Congress, as the complainants say, has exercised the power and
regulated the navigation of the river, and their next proposition
is that the bridge as constructed or threatened to be constructed
interferes with the enjoyment of that use and is inconsistent with
and in violation of the acts of Congress regulating the navigation
and destructive of the rights derived under them, and that to the
extent of that interference with the free navigation of the river,
the act of the Legislature of the State of Pennsylvania affords to
the respondents no authority or justification, because it is in
conflict with the acts of Congress, which are the paramount
law.
Argument to show that the ground assumed by the complainants is
exactly the same as that on which the case of the Wheeling bridge
proceeded and was finally decided is unnecessary because the
proposition stands forever affirmed by the authority of this Court
in an opinion pronounced by one of the Justices who decided the
cause and who still holds a seat on this bench. [
Footnote 2/2] Referring to that opinion, it will be
seen that the judge who delivered it first stated the
Page 70 U. S. 736
grounds assumed in the bill of complaint, and then said:
"Such 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."
None of these propositions is denied in the introductory part of
the opinion of the majority of the Court. On the contrary, the
opinion just read repeats the views expressed by MR. JUSTICE NELSON
in the case already referred to, and impliedly endorses those views
as a correct exposition of the power of Congress over public
navigable rivers emptying into the sea and of the right of this
Court to redress private injuries resulting from unlawful
obstructions in the same to the paramount right of navigation.
3. Conceding the correctness of those views as applied in the
case in which they were expressed, the opinion of the majority of
the Court as just read sets up a distinction between that case and
the case under consideration, and maintains that those views are
not applicable to the present case. Stripped of all circumlocution,
the supposed distinction, as maintained in the opinion of the
majority of the Court, is that in the case at bar, it does not
appear that Congress has passed any act regulating the navigation
of the river described in the bill of complaint. Power of Congress
to regulate commerce among the several states as well as with
foreign nations is fully admitted, and the concession is -- at
least impliedly from the course of the argument -- that this Court
would have jurisdiction in the case and that the complainants would
be entitled to relief if it appeared that Congress had exercised
the power as conferred and had regulated the navigation of the
river within the meaning of the Constitution. Precise doctrine
advanced, as I understand the opinion, is that Congress has not
passed any act regulating the navigation of the river, and that
inasmuch as there is no federal regulation upon the subject, the
law of the state legislature authorizing the erection of the
bridge
Page 70 U. S. 737
is a valid law even if the bridge is an obstruction to
navigation, because the state law is not in conflict with any act
of Congress giving protection to the otherwise paramount right of
navigation. Implied admission is that if there is an act of
Congress regulating the navigation of the river, then the right of
navigation is a paramount right and the conclusion must be that, in
that event, no law of the state could afford any justification to
the respondents in erecting the bridge if it is a public nuisance
and an obstruction to that paramount right. [
Footnote 2/3]
4. Dissenting from the opinion of the majority of the Court on
this point, I hold that Congress has regulated the navigation of
this river within the meaning of the Constitution, and that the law
of the state pleaded in justification of the acts of the
respondents, so far as it authorizes an obstruction to the free
navigation of the river, is an invalid law. Commerce, it is
admitted, includes navigation, and it is well settled on the
authority of this Court that in regulating commerce with foreign
nations or among the states, the power of Congress does not stop at
the jurisdictional lines of the several states. Express decision of
this Court is that commerce with foreign nations is that of the
whole United States, and that the power of Congress to regulate it
may be exercised in the states wherever the foreign voyage may
commence or terminate, and that the commerce among the states
cannot be stopped at the exterior boundary of the state, but may be
introduced into the interior. [
Footnote
2/4]
5. Right of intercourse between state and state was a common law
privilege, and as such was fully recognized and respected before
the Constitution was formed. Those who framed the instrument found
it an existing right, and regarding the right as one of high
national interest, they gave to Congress the power to regulate it.
Such were the views of Marshall, C.J., as expressed more than forty
years ago,
Page 70 U. S. 738
and he added that in the exercise of this power, Congress has
passed an act for enrolling or licensing ships or vessels to be
employed in the coasting trade and fisheries and for regulating the
same. Respondents contended that the enrollment act did not give
the right to sail from port to port, but confined itself to
regulating a preexisting right so far only as to confer certain
privileges on enrolled and licensed vessels in its exercise; but
the Court promptly rejected the proposition and held that where the
legislature attaches certain privileges and exemptions to the
exercise of a right over which its control is absolute, the law
must imply a power to exercise the right. Direct adjudication was
that it would be contrary to all reason and to the course of human
affairs to say that a state is unable to strip a vessel of the
particular privileges attendant on the exercise of a right, and yet
may annual the right itself.
"License," as the word is used in that act of Congress, means,
said the Court, permission or authority, and the Court held that a
license to do any particular thing is a permission or authority to
do that thing, and if granted by a person having power to grant it,
transfers to the grantee the right to do whatever it purports to
authorize. Adopting the language of the Court in that case, it
certainly transfers to him all the right which the grantor can
transfer to do what is within the terms of the license.
Ships and vessels enrolled and licensed under the acts of
Congress, and no others, are deemed ships and vessels of the United
States entitled to the privileges of ships or vessels employed in
the coasting trade. Majority of the Court, as stated in the opinion
just read, admits that a ship or vessel of the United States which
is duly enrolled and armed with a coasting license such as is
required by the enrollment acts may navigate along the coast of the
United States and may pass from the open sea into the public
navigable rivers of the United States and up the same as far as
navigable waters extend. Coming more directly to the case under
consideration, the opinion admits that such a ship or vessel has a
right, under such an enrollment and with such a coasting
Page 70 U. S. 739
license, to navigate from the sea up the river described in the
record to the wharves of the complainants.
6. Unrestricted and unexplained, that admission covers
everything which the complainants claim and shows conclusively that
they are entitled to relief. But it is said that this right, under
the circumstances of this case, is subject to the paramount right
of the state to bridge or dam the river and close it against all
commercial intercourse. Extent of the right as conceded therefore
is that a ship or vessel duly enrolled and licensed and sailing
from the port of another state may enter a public navigable river
of the United States from the sea unless the state through which
the river flows as it falls into the sea has bridged the river or
constructed a dam across it before the vessel arrives off the mouth
of the river. Plain right of the owner of the vessel in that state
of the case is to instruct the master to go about and return to the
port of departure, but if the river is open when the ship or vessel
arrives at its mouth, she may pass up to the highest port of entry
and discharge cargo and load for the return trip.
Her right to return is then undoubted unless in the meantime the
navigation of the river is forever closed by a bridge or dam
constructed under the authority of the state, and in that event the
owner of the vessel has the same privilege that he has in case of
shipwreck. He may direct the master and mariners to return by
land.
Doubtless a question may arise as to what is to be done in that
state of the case with the impounded vessel and cargo, but as that
question is not involved in the present record, it must be left for
future consideration. Such a rule as it seems to me, is contrary to
all reason and absolutely subversive of one of the great interests
of the country, which more than any other induced the people of the
colonies to call the convention which framed the Constitution.
7. Unquestionably the decision of the Court in the case of
Gibbons v. Ogden proceeded throughout upon the ground that
the act for enrolling or licensing ships or vessels to be employed
in the coasting trade and fisheries and for regulating
Page 70 U. S. 740
the same was of itself a sufficient regulation of the navigation
of all the public navigable rivers of the United States to secure
to the ships and vessels of the United States, sailing under the
coasting license, the free navigation of all such public highways.
Best exposition of the decision of the Court in that case is to be
found in the decree, where the Court said that the several licenses
set up by the appellant in his answer to the bill of complaint,
which were granted under an act of Congress passed in pursuance of
the Constitution of the United States, gave full authority to those
vessels to navigate the waters of the United States for the purpose
of carrying on the coastwise trade, any law of the state to the
contrary notwithstanding, and that so much of the laws of the state
as prohibited vessels so licensed from navigating the waters of the
state by means of fire or steam is repugnant to the Constitution of
the United States and void. Express as the language of that decree
is, it is incomprehensible to me how it can be the subject of any
difference of opinion.
Complete protection is afforded by the doctrines of that great
case to all ships and vessels of the United States duly enrolled
and licensed in navigating all the public navigable rivers of the
United States which empty into the sea or into the bays and gulfs
which form a part of the sea, and they are all treated as arms of
the sea and public rivers of the United States. None of the judges
who participated in that decision even intimated that the Hudson
was anything else than an arm of the sea and a public navigable
river of the United States. Public navigable rivers whose waters
fall into the sea are rivers of the United States in the sense of
the law of nations and of the Constitution of the United States.
They are so treated by all writers upon public law, and there is no
well considered decision of the federal courts which does not treat
them in the same way. [
Footnote
2/5]
8. Claim of the appellants, however, does not rest alone upon
the doctrines of that case, but the proofs show that
Page 70 U. S. 741
their wharf property and the river at the place where it is
situated are both within a port of entry as established by an act
of Congress.
Prior to the adoption of the Constitution, the power to
establish ports of entry was in the several states, but this Court
held in the last opinion delivered in the case of the
Wheeling
Bridge [
Footnote 2/6] that the
power in that behalf, was surrendered under the Constitution to the
federal Government and left to Congress. Eighth section of the Act
of the 2d of March, 1799, provides that the District of
Philadelphia shall include all the shores and waters of the River
Delaware
and the rivers and waters connected therewith
lying within the State of Pennsylvania, and that the City of
Philadelphia shall be the sole port of entry for the same.
[
Footnote 2/7]
Subsequent provision is that the port of entry and delivery for
the District of Philadelphia shall be bounded by the navy yard on
the south and Gunner's Run on the north, anything in any former law
to the contrary notwithstanding. [
Footnote 2/8]
Appellees suggest, rather than argue, that the mouth of he river
described in the bill of complaint is not included in that
description, but the point is of no importance, because it is clear
beyond controversy that the river at the place where the wharf
property of the complainants is situated, and for a considerable
distance above and below it, is within the acknowledged limits of
the port. Ample confirmation of this view, if any be needed, will
be found in the case of
Devoe v. Penrose Ferry Bridge Co.,
[
Footnote 2/9] which was decided by
Mr. Justice Grier. He said the commerce on River Schuylkill below
the port of Philadelphia is as much entitled to protection as that
of the Ohio, Mississippi, Delaware, or Hudson, and that the
complainants in that case had the same right to the interference of
the court in their behalf as was shown by the State of Pennsylvania
in the
Wheeling Bridge case. Although it is supposed the
views of the learned judge have undergone some change as to the
Page 70 U. S. 742
jurisdiction of the federal courts, it has always been supposed
that he was entirely accurate in all the matters of fact on which
the judgment of the court was founded.
9. Other acts of Congress are cited by the complainants as
supporting the proposition under consideration, but it will not be
necessary to give more than two of them any special examination.
First section of the Act of the 2d of March, 1819, divides the
seacoast and
navigable rivers of the United States into
two great districts, and the declared purpose of creating the
districts is "for the more convenient regulation of the coasting
trade." All the districts on the seacoast and
navigable
rivers between the eastern limits of the United States and the
southern limits of Georgia are included in the first district, and
the second district includes all the districts on the seacoast and
navigable rivers between the River Perdido and the western limits
of the United States. [
Footnote
2/10]
Subsequent acts created a third great district, and provided
that it should include all the ports, harbors, seacoasts, and
navigable rivers between the southern limits of Georgia
and the River Perdido, and that it should be subject to all the
regulations and provisions of the prior act. [
Footnote 2/11]
Doubt therefore cannot be entertained that all of the public
navigable rivers of the United States falling into the sea or into
the bays and gulfs which form a part of the sea are included in one
or the other of the three great commercial districts expressly
established for the convenient regulation of the coasting
trade.
Looking at these several acts, it is not surprising that
Marshall, C.J., should have said in
Gibbons v. Ogden
that
"to the Court it seems clear that the whole act on the subject
of the coasting trade, according to those principles which govern
the construction of statutes, implies unequivocally an authority to
licensed vessels to carry on the coasting trade."
Strong support to that view of the law is also derived from the
case of the
Wheeling Bridge as appears in the first
opinion delivered in the case. [
Footnote 2/12]
Page 70 U. S. 743
Remarking upon this view of the case, the Court said in effect
that the navigability of the Ohio River is a historical fact which
all courts may recognize. They add that for many years, the
commerce upon it has been regulated by Congress under the
commercial power by establishing ports, requiring vessels which
navigate it to take out licenses and to observe certain rules for
the safety of their passengers and cargoes. Every one of those acts
of Congress, from the moment they were passed, became and are as
applicable to the river described in the bill of complaint as to
the Ohio, and there can be no doubt, as it seems to me, that they
must be held to have the same effect. Nothing has been said
respecting the case of
Wilson v. Blackbird Creek,
[
Footnote 2/13] because, in the
view I take of it, the opinion has nothing to do with the present
question. Judgment was rendered by the same Court in that case
which gave judgment in the case of
Gibbons v. Ogden, and
there is not a man living, I suppose, who has any reason to
conclude that the constitutional views of the Court had at that
time undergone any change.
Instead of overruling that case, it will be seen that the Chief
Justice who gave the opinion did not even allude to it, although as
a sound exposition of the Constitution of the United States it is
second in point of importance to no one which that great magistrate
ever delivered. Evidently he had no occasion to refer to it or to
any of its doctrines, as he spoke of the creek mentioned in the
case as a low, sluggish water, of little or no importance, and
treated the erection described in the bill of complaint as one
adapted to reclaim the adjacent marshes and as essential to the
public health, and sustained the constitutionality of the law
authorizing the erection upon the ground that it was within the
reserved police powers of the state.
Conclusion is that Congress has regulated the navigation of this
river, and that the state law under which the respondents attempt
to justify is in conflict with those regulations, and therefore is
void and affords no justification to the respondents.
Page 70 U. S. 744
Admitting the facts to be so, then the complainants are entitled
to recover even upon the principle maintained in the opinion of the
majority of the Court.
[
Footnote 2/1]
1 Stat. at Large 632.
[
Footnote 2/2]
The Wheeling
Bridge, 18 How. 430.
[
Footnote 2/3]
Attorney General v. Burridge, 10 Price 350;
Same v.
Parmeter, ibid., 378;
Parmeter v. Attorney General,
ibid., 412.
[
Footnote 2/4]
Gibbons v.
Ogden, 9 Wheat. 194.
[
Footnote 2/5]
Propeller
Commerce, 1 Black 579.
[
Footnote 2/6]
59 U. S. 18
How. 435.
[
Footnote 2/7]
1 Stat. at Large 632.
[
Footnote 2/8]
4
id. 715.
[
Footnote 2/9]
3 American Law Register 83.
[
Footnote 2/10]
3 Stat. at Large 492.
[
Footnote 2/11]
Ibid., 685.
[
Footnote 2/12]
Wheeling
Bridge, 13 How. 557.
[
Footnote 2/13]
27 U. S. 2 Pet.
250.
