Gilman v. Philadelphia

Philadelphia. Dec. 713 Gilman v. Syllabus. to hereafter or be

suit (cid:127)which is now may brought, pending, of the La Crosse Company, determine other any controversy interest, successors in or or of its or its creditors, two, Court in the shall affirm the of the Circuit we decrees cases now us before appeal. by accordingly.

Affirmance Philadelphia. Gilman purpose, control for that comprehends the regulate commerce power to all the waters of the United navigable necessary, and the extent to from a State other than those on which are accessible States which lie; and includes, power keep them free necessarily, open to and or navigation, interposed by the States their obstruction to power to its full And it is for determine when otherwise. regulations and as and sanctions shall into to brought activity, be be provided. which shall however, field, embracing great does a covering as it wide power, This subjects call for uniform rules and subjects, some of the will variety of regulated by can rules and others be best legislation; while national differing places, varying circumstances suggested by provisions places respectively. to such And to the operation in their and limited cases, regulate these last commerce required extent may exercised the States. be streets, railroads, are Bridges, turnpikes, means of com- explain. To waters, navigable as well as commerce transportation mercial may be than will bridge greater over much that which passes Accordingly, on which it obstructs. transported ever the water may bo over one of tidal question erected its own whether streams, municipal power weigh is for the navigable sub- belong each other the considerations against balance hand, advantage on the one ject obstruction of and the —the shall be preferred, on the other—and to decide which commerce the other. And such erec- shall be subservient to if how far one made faith, covertly and for an unconstitu- good tion be authorized enjoin the Federal courts not bound it. tional purpose, may necessary, whenever it shall be iwever, Congress interpose deemed H regulate laws. It over special bridges general either offending waters, bridges, punish those who shall remove sphere of their authority, them. both the erect 'Within thereafter supreme, of the nation are legislative judicial Ct. of the case. Statement other, one hand and on the court Annunciating principles these owner, enjoin, riparian of a to whom at the -'nstance refused built, under the only, bridge a to be injury consequential he about would city of by Philadelphia, Pennsylvania, of the State of authority however, navigable, Schuylkill, a small river —tidal over the river by on barges in carried great — n and on commerce coal was Pennsylvania, ran wholly of which river was within the State bridge; to erect the through corporate city limits of the authorized lived, and on both numbers great and on both sides of which citizens in much as on on one as municipal authority sides of was exercised every other; of convenience bridge being great public a matter it, and in use erected way, bridge, just having and another like stream, hundred above. many years, yards the same about five over to com- The Constitution to “regulate gives Congress case was one States;” merce between tbe and this relating and of the of a State jurisdiction respective case was thus: tide and The over waters. States navigable laid out Mr. by The Philadelphia, city originally betiveen Delaware was situated Penn, Schuylkill the east of the Rivers; former a wide on city; mak- west, which, stream, latter a small and narrow far water, falls curve below the into larger ing city, about six miles belowthe town. seven and a mouth,

This river is tidal from its Schuylkill half miles is to past say, completely every upwards—that narrow, of the' rear of the city though muddy, part . —and from for vessels shallow, eighteen drawing within the Penn- feet of water. It is wholly twenty it. vessels kind are seen sylvania. No large one outlet of the coal of Pennsylvania, regions Being the river is coal. almost the commerce of sole principal, and one of commerce, But this is importance very large numbers of Great persons, country generally. it; steamers, are small many many engaged are en- it, and other vessels concerned properly 'barges, Millions and licensed as States. rolled vessels the United have on the of dollars been invested property Schuylkill the built meant the coal to assist trade. front city, commerce, of as river’s above of this spoken coal at or above canal-boats into the river, by just is brought Philadelphia. Dec. case.

Statement towed small canal-boats then by the river. along steam-tugs in connection trade, was this indeed,

So important, 1858, considered year the Schuylkill, of the State when the thereabouts, proposed legislature distance some allow the Penrose Ferry bridge —a erected, over ever deeper beloioany previously of the stream —the Philadelphia, city broader parts traders in a influenced then councils, its perhaps, largely, remonstrated legislative against any staple city, that, new means of for the declaring license crossing; more than trade obstruction, “this amounting dangerous million tons would be seriously annually impaired, in- and that the driven from that large portion port; and other in her vestments of property gas-works, city wharf- all the the on Schuylkill, proportion large below further would be front, injured by greatly the now the lowest Schuylkill.” bridge upon Ferry, Gray’s was however, authorized. The bridge, width of the neck of from river to river—the The space “ that is to on which land, Philadelphia” say, stands— two about miles. be the residents however,

Notwithstanding, separating had their more than rural of Philadelphia, fifty years ago, Here was Lans- on the west side of the homes Schuylkill. Solitude; downe, Belmont, well- Woodlands, in the local Little known places history Philadelphia. also, Mantuaville, Hamiltonville, &c., there. villages, grew up from the interior, From roads necessity, including in this that from the State came to the direction. city capital, limits. Still was without the city region In 1854, old charter of abrogated. Philadelphia »“ What had been Consolidation” was advisable. .thought was made Philadelphia city, county under the same west was placed region Schuylkill as east. pav- government completely region Lighting, had and such like as police, ing, penny-postage, things “ wore fore now the.new city,” imparted belonged Ot. [Suj. of the case. Statement &c., became Mantuaville, Hamiltonville, forgotten region. talk, in common titles; and “West usurped, Philadelphia” west, from east The streets running their place. “ line name, and continuous were carried, Philadelphia,” so far as west Schuylkill; practicable, survey, in the old on Dela- which, city the numbers beginning tothe westward Schuyl- ware with Front Street, running Thirtieth, numbers reappeared kill, up progressive ato num- Street, across the river in Thirty-first running From its citizens. ber not familiar practically yet in connection with street air, and fresher cheaper ground east, west of the river as West Philadelphia”— found cars of urbs rus in urbe—had become rure, as or sort, yet, more residence for hundreds of who many persons passed or less of walks of business in the older every day town. parts had out various too of later the citizens laid

So yfears, Woodlands and western cemeteries, others, side river; and had here fixed numerous institutions closely itself, churches, connected with the or with city corporation, in the the Burd Orphan vast &c., Blockley Hospital, city; establish- Christ Church and other like Hospital, Asylum, ments of charity. date the and below

From river at above just early is to within its tidal and say parts, city, been treated more had Pennsylvania less her within jurisdiction. in what 1798,

Thus was then called the Permanent Bridge, a the river Street, across at Market authorized,* was bridge a lot 1799 the State for its granted by purposes.† was This 1805, and finished in 1801 bridge begun Judge Peters, district of the Federal court of judge Pennsyl himself vania, as an who was distinguished admiralty lawyer, of Belmont, near one end proprietor it, been having instrumental in the erection. In a chiefiy 1806, at bridge * Laws, 3 Smith’s 312. Id. 362. † 717 Dec. case. Statement feet authorized; high.* was 75 Perry (permanent) Gray’s and lower the upper the State the same regulated In year was au another In 1811 bridge the city. opposite ferries”† built, afterward was which at the thorized, ferry,‡ upper canal, Schuyl In 1815 and rebuilt. down, large burnt drains the authorized, was kill Company, Navigation was It completed above city.§ river immediately which dam the Water-works, In 1826. Pairmount water out with the old Philadelphia river city supply was author 1837 n In were bridge completed. and Bal ized Wilmington, to be built Philadelphia, and was feet, a draw of 33 timore Railroad Company, Phila In the West town. afterwards built below the 1838¶ to build was authorized Railroad bridge Company delphia a free was In 1839** at Market or Callowhill Street. bridge were au free In authorized at Arch Street. bridges 1852†† at None and Girard Avenue. thorized at Chestnut Street built. last wereever these bridges four Railroad runs Central Over one of these bridges below built another, over city, Pennsylvania; runs mentioned, railway Gray’s Perry already which leads from the North Baltimore, Philadelphia and the South. This railroad bridge— Washington City 1838; built in which has a however—was draw, though a time before the had there from been long draw-hridge Revolution. authorize these had not bridges while one, undoubtedly seriously questioned by any from its mouth to and port

river beyond Philadelphia has as an ancient, is and been considered navigable, public free to used and river and common highway, navigated all citizens of the States. had made only apparently, legislation, the river and in 1790, about both which § Laws, 4 Sm. Id. 5 Id. 221. 6 Id. 297. 347. 257. † ‡ 1836-7, 1837-8, Pamphlet p. Pamphlet 20. p. Laws Laws 697. n ¶ ** 1838-9, Pamphlet Pamphlet Laws of of 1852. p. Laws †† Cfc 718 of Statement the case. was declared a of

years* 1793,† Philadelphia port entry; when the it; laws were when coasting applied 1799,‡ two districts in 1822, were created when Pennsylvania;§ made sole the was the of for Phila Philadelphia port entry 1834, n district; and in when the limits the of delphia port were Delaware front. The acts important enlarged seemed to be those of and 1834. The former is 1799 these words:

“ The district of shall include all the shores and Philadelphia of Delaware, waters and Eiver the rivers watersconnected therewith within the State lying Pennsylvania; City Philadelphia entry delivery shall be the sole port same.” The act thus reads: subsequent (that 1834) “The port entry district Phila- delivery shall be bounded delphia south, Yard on the Navy' Gunner’sPun on the north, former law to the anything contrary notwithstanding.” act

No as within the spoke Schuylkill port: though its charter extended to the undoubtedly by city Schuyl- kill. of the Coast authorized soundings Survey, do not come into the Schuylkill. “ is on the Yard” Delaware. Gunner’s Navy Run” stream in north of into Dela- city, falling ;ware but nowhere touching feeding Schuylkill. however, numerous

Notwithstanding, author- bridges ized and the two or three that had built, one existed principal but connection between the practically, of the built two parts populous this was the city; Permanent or old Market Street Bridge: bridge running the western end of one east and west thorough- fare stream; city perhaps greatest — —across "West with the more Philadelphia connecting populous as a short and narrow isthmus connect “city” two might 82, Large, 1 Stat. at 148. Id. 305. † § 632. Id. Id. 662. ‡ Id. n Dec. of the ease.

Statement was, indeed, continents. There Wire Suspension Pairmount; rather at above the at its north ex- Bridge, city sometimes called Baltimore Rail- tremity; Gray’s Perry, road at its southern below end, Bridge, populous districts. the old was the said, But, already bridge line of at once—between the artery ligament transit — districts.

In this state of not much set in the out things, pleadings, but matters of common and as such being notoriety, spoken at bar, Commonwealth of Pennsylvania authorized the erect City Philadelphia permanent over the at Chestnut Street. This bridge street Schuylkill was about five feet hundred helow where Street, Market was the other and older erection bridge. contemplated would be, of over course, that was part Schuylkill tidal Chestnut Street now had wholly, navigable. existence on sides of the both river. On the it is eastern, one of the chief and in West thoroughfares Philadelphia, of connection Philadelphia, with Chestnut anticipation east, Street on the daily assuming importance. would in fact connect contemplated of one street, parts a street one on the east municipally speaking; part having and one on the the stream; west of here about four part hundred feet across.

The about to city erection, being begin Gilman, New valuable coal wharves Hampshire, west owning side of the belowthe river, old and which just bridge, by erection of the at Chestnut proposed Street would be bridge shut between two filed erections, now his up bill in the Court for Circuit the structure. Pennsylvania prevent It was conceded that he was neither a nor a pilot, navigator nor the a vessel; owner of licensed and this was ob- coasting to him. His title to ask jected relief rested on his owner- of coal as ship wharves, mentioned, and his citizenship New Hampshire.

His a bill that at that without suita- charged bridge point draws would an ble unlawful obstruction navigation Ct. of the ease.

Statement his and an interference with the river, illegal rights, to him special nuisance damage; was public producing not for the- it was Pennsylvania that competent legislature he to be and that was entitled erection, such an to sanction on the an further progress injunction stay by protected it if should have been abatement, to a decree work, or with to completion. proceeded answer admitted the erection of the

The bridge complained under the act of the such erection of, legislature justified that other obstructions of a similar Pennsylvania, alleged extent had theretofore been across or placed greater com- at a stream beyond higher point of other acts of same virtue wharves, legis- plainant’s The conceded that would answer prevent lature. bridge to or at the com- masted vessels from unloading approaching insisted that was wharves, only injury plainant’s it Phila- that for suffered City complainant, was able defendant, delphia, respond damages. The answer further was proposed alleged bridge convenience. necessity admitted, was would be not more than

The thirty bridge, above, same old one at Market feet high height —the an erection of the it was built in the best Street. Being city and with science, greatest practicable style regard commerce; interests but it general navigation The somewhat impeded necessarily navigation. a wide channel. One was indis- pier

at point required Vessels with could and the pass, masts prop- pensable. less rendered valuable. complainant erty Grier dismissed the bill. same Mr. Justice question him had been then considered recently nearly very fully, in New made, to restrain the erec- application Jersey, at Passaic, tion of railroad over the Newark. had been matter there con- fully argued deliberately sidered; an delivered from the bench, dis- being That had, decree missing appeal. by judgment affirmed; court, of this been case was not re- though of affirmance judgment an ported, having 721 Philadelphia. Dee. court. what in honor, accordance His divided bench. equally an affirm Willis,* considering was declared Queen number of of a irrespective ance decree binding that the and were favor of such judgment; of who judges was the whether same, of mere precedent, obligation, point divided, unanimous, or and and court was full partial before for discussion conceived the question open hardly not below. was, therefore, The case argued him.† well discussed by In this court it was elaborately Parker, appellant Messrs. Courtland GeorgeHarding for Gilman; Sellers, con- F. JD. and Messrs. C. Brewster W. the City tralor

Mr. delivered Justice SWAYNE opinion court.‡ the facts is There no between the about contest parties they respectively rely. other and own The are citizens of complainants' valuable above wharf and dock property productive site The river is navigable contemplated bridge. for vessels feet there from twenty drawing eighteen has been carried kinds of ves- water. Commerce property. sels years many complainants’ above will not be more than feet bridge thirty will surface and hence ordinary high-water will of vessels This masts. prevent passage having render it reduce the income from the largely property, less valuable. under defendants .are to build the proceeding of an act authority Pennsylvania. legislature is limits, within

The “ River her Schuylkill entirely Eor ancient and common State.” an river highway Bank, Cases, Finnelly’s 10 Clark 534. See Krebs v. Carlisle Appeal & Wallace, , note, Jr as foi judicial history interesting question, as well part As tho † has, referred to report itself of tho case value tho J., Grier, Appendix, found in a note. —See will be ar.d above decided III. No. J., sat, Nelson, no taking part the decision. having ‡ VOL. III. Philadelphia. Ct. Gilman

Opinion of the court. for masted it has been vessels for the years many half seven a miles of about from its distance only, Market about five hundred Street, mouth. At feet above is a there without a Chestnut, draw over permanent bridge and no above the same water is than it higher about to to elevate be built. bridge intended A bridge was erected prior, at Market Street to the perhaps, year It hundred nine. rendered the eighteen passage above that masted vessels and since that point impossible, few have time above foot of appeared comparatively river there has since Chestnut been used Street. chiefly canal-boats. for highway will be injury property complainants A is on the consequential. entirely city up large rising side of the The new is called river. for opposite bridge by convenience. public resolves itself into

The case law. questions At the threshold of the we are met investigation “ that the defendants, from the complainants, objection interested in cannot intervene specially navigation, being is said, its It that for not the protection.” licensed vessels, owners of and are not nor coasting pilots navigators.”

As is the case not objection, differ- regards essentially from the ent case. principle Wheeling bridge The further also taken that if objection case, that existed, a nuisance it was of nature, was an public whose laws offence were violated, sovereignty against could intervene for the that correc- only sovereign tion of the evil. the court, was answered that wherever a

It individual, specific injury nuisance productive of an action at make it the foundation and if law, he may court of would be will irreparable, equity the injury The decision was not injunction. put any- interpose trustee character of com- the ground wise upon she lines im- had The State alleged plainant. passengers freight the transportation provements Dec.

Opinion of court. reason east to that by from the Pittsburg, extending at the river to be erected across about Wheeling, it would cause to and the obstruction which her would be diverted from works of that stream, business her works the income from to other and that channels, and their value dimin- would lessened, be thereby greatly The court ished or said: destroyed.

“ her in virtue of The State of is not a Pennsylvania party its It does come here to protect rights sovereignty. suit . . citizens, nor can State prosecute upon It as- interest in herself. remote contingent ground interest, an but a direct claims, not abstract right, sumes and its of this court can redress and that wrongs, ease, from ... In the save it injury. present irreparable are no different assumed and relief prayed respect rights State, From the of the from those of an individual. dignity in this suit gives bring original Constitution right established, be court, this is the if only privilege, case.” can claim in the which the State of present Pennsylvania In tbe facts it was said: regard is And this of a character for which an action at law injury “ no redress. It is of adequate occurrence, afford daily could numerous, if not for the require daily, prosecutions would wrong from done; the nature wrong, compensation not be measured or ascertained could any degree pre- effect if not tolls these be, The would to reduce the cision. in- their increase with the transportation, lines of prevent . In of the . . no case could a country. remedy business creasing an action at common The structure more than law. be hopeless and so works of is are permanent, sought complained if there be is as one, be injury, permanent protected. which it are the works as proceeds, as the works be, it. there now will And whatever injury affected by to the increase of population become proportion greater of the in country And development country. the commercial its where there would seem to be no limit to this, progress, like be would far in its effects than greater injury complained under less circumstances.” prosperous Philadelphia Ct. court. examined. The law learnedly upon ably fact, were overruled. Considerations The objections to, character with those- adverted exist in the ease the same and the- are alike before and!conclusions there us, reasoning, in both views eases. Whatever be our might applicable in the absence of this proposition, legal adjudica- as we is almost are, think, we concluded It tion, it. law should settled as important permanently, should settled Its fixed that it be- rules should be correctly. and adhered unless erroneous. deliberately to-firmly, clearly is a serious- Misc.a est ubi lex est evil. servitus Vacillation aut incertaJ* This us to- examination vaga brings of the- merits ease-.

The defendants-assert that the act of the under legislature, justifies proceeding, building bridge. such an insist that obstruction to complainants river is to the Constitution repugnant

laws of the the of commerce. United States, subject touching

These the Constitution bear the provisions subject: “ shall have . . to commercewith Congress- power regulate nations, States, and with the Indian the several among foreign ,. make all shall be and to laws-which tribes; proper necessary for into/execution the carrying foregoingpowers.” “ Constitution, in This andithe laws-which shall be made pur- and thereof, land, suance . . shall law of be the supreme State shall be bound every anything judges thereby, notwith- the constitution or to the laws of any contrary standing.” “ The the Con- to-the United States power® delegated! stitution, nor to it to the are reserved prohibited by States to respectively, people.” vessels 1793,

The act of the 18th-of authorizes February, and enrolled licensed to its to provisions engage according in the trade. coasting

Commerce includes power regulate The navigation. control for that commerce comprehends purpose, extent to the all the waters necessary, navigable Dec.

Opinion of the court. than United States which are from State other accessible are the those in which lie. For this they they purpose all nation, legis property requisite lation includes the This power hy necessarily Congress.* them and free from obstruction to their to keep open otherwise; to remove the States or navigation, interposed hy such exist; such when and to obstructions hy they provide., as the occurrence sanctions deem may proper, against these of offenders. For evil punishment all which existed in possesses powers purposes, Congress Constitution, the States before national adoption existed and which have in the Parliament always England. full shall It is for determine when its as sanc he into activity, brought regulations tions which shall be provided.† coast 1793, A the act of license under engage “ Commerce trade, carries with it and authority. ing at a does not State line. Coming States” stop among wherever it can find from abroad it penetrates waters from without into the fol interior, may reaching Wherever them far as low as up practicable. nation, commerce States” among goes, .en court, it to protect goes as represented he can no doubt its There coasting force rights.‡ in ques be carried on where the bridge trade beyond is to he built. tion powers our attention to

We will now turn rights are to he considered. States which such as no but possesses national powers government such have it. States but have delegated build- to authorize the The power surrendered. have they Constitution. found in the Federal bridges ing * 1; Washington Wheaton, Coryell, 4 v. 9 Corfield Ogden, v. Gibbons Court, 378. Circuit 420, Minot, 421; Woodbury & 1 Bridge, Bedford States v. New United † 102, 155. Peters, Milne, Id. 72; 11 York v. Coombs, 12 New v. United States Livingston, 3 1; v. Steamboat Co. v. 9 Ogden, Gibbons Wheaton ‡ Cowen, 713. Ct. 726 v. Opinion of the court. reside some

It has not been taken from the It must States. where. had it before the Constitution adopted, They have it still. the Revolution took "When place themselves of each State became sovereign, people all navi in that character hold their the absolute right common waters and the soil for their own under them gable Con use, to the since surrendered subject only rights stitution to the General Government.”*

In Pollard’s Lessee v. court said: Hagan,† this “ The of eminent domain over the shores the soil right waters, under the all ex- municipalpurposes, belongs their clusively States within territorial respective jurisdic- tions, have the constitutional they, they only, power exercise it.......But the hands of the States this power can never be used so as to affect the exercise national of any of eminent domain or which United jurisdiction States have been invested the Constitution. For although the territorial limits of Alabama have extended all her sovereign sea, into the it is as on the but there, shore, municipal to the Constitution of the States and the power, subject whichshall have beenmade in pursuance laws thereof.” In v. it is said: Gibbons Ogden form laws immense

“Inspection portion mass of which embraces within the legislation everything territory State, not surrendered to the General Government; can be most exercised the States advantageously themselves. laws, quarantine laws, health laws Inspection of every descrip- tion, as well as laws for the internal commerce of regulating those State, and &c., respect roads, ferries, are turnpike of this mass.” component parts same nature with ferries, and are un

Bridges within the thus laid doubtedly category down.‡ commerce covers wide field, regulate embraces a Some these subjects. variety subjects' rules call for uniform and national others can legislation; Waddell, Peters, Howard, et al. 3 Martin 410. 230. † Co., Wendell, R. R. R. People S. & ‡ 727 Philadelphia. Dec. Gilman of the court. the and suggested rules provisions be best regulated by limited localities, different circumstances of varying this ex- To localities to such respectively. their operation exercised the commerce tent power regulate States. exclusively is vested case Whether the given the nature in the General Government depends upon of com to be laws are Pilot regulations regulated. cov not ; faith, but merce if a State enact them good with in conflict another ertly purpose, “ committed Congress commerce” regulate the Constitution.* its court judg In the case this placed Wheeling bridge “ had acted upon

ment ground and had River, thereby had Ohio subject, regulated the free and secured to the virtue of its authority, public, by the erection unobstructed use same, of use, this so of far as it interfered with the enjoyment bridge, acts of with of Con was inconsistent violation them; under derived destructive of gress, free to the extent of interference with the that, naviga tion of Ohio the act River, legislature Virginia no It was in afforded or authority justification. conflict the acts whichwerethe paramount Congress, law.”† most its authority, important application v. The case before Wilson Blackbird Marsh us, Creek Co.‡ extends from Blackbird Creek the Delaware River into the interior the State of Delaware. legislature an act were authorized State passed company whereby make and construct and sufficient empowered good across dam said at such creek, place managers most for the them shall find to be suitable majority pur dam, &c. The to erect a whereby pose,” company proceeded The defendant, creek obstructed. of a a hundred tons, owner being sloop nearly regu- Howard, Wardens, v. The Cooly 12 Board Peters, 18 Id. 430. 250 † ‡ Ot.

Opinion of court. and licensed under the laws of the United enrolled larly and dam. The States, broke the injured brought company an action of him in the Court of trespass Supreme against that the where the Delaware. The defendant pleaded place “ committed a and common was naviga- was trespass in had the a which the tides ble in nature of creek, highway, reflowed; all citizens the flowed that the always vessels, to had a with and other States United right, sloops, over the same at all times at their pass pleas- navigate therefore, &c. ure,” &c., sustained demurred. Court plaintiffs Supreme Court demurrer and in their favor. The

the gave judgment The case of that affirmed State the Appeals judgment. into In this court a of error. was writ delivering brought of the court, Chief Justice Marshall said: opinion “ measure authorized this act a navigable But the stops who creek, must be those supposed abridge rights unless ; to use it but this been accustomed abridgment, have or law of United in conflict with Constitution comes is its between the of Delaware an affair government The coun citizens, of this court take no which can cognizance. in with in error insist comes conflict for the that it sel plaintiffs £to with for States commerce regulate power ” the several States.’ nations among eign if " had law which He remarked that passed any Congress court not feel much diffi bore would with such law, State conflict culty coming saying in conclusion added, be voidand : act, would " no act. The But such passed repugnancy has is to the on placed the law of Delaware Constitution its entirely commerce to the with power regulate repugnancy foreign which States; the several has not among nations We do not so as to think been exercised affect question. Creek Marsh empowering act Blackbird Company across creek under can, dam circumstances place be considered as case, regulate repugnant state, in its dormant commerce being conflict any on the subject.” law passed

Dec. of the court. came same Con- This from the expounder who earlier and elaborate stitution” delivered the more judg- are not the sound- ment in We aware that Gibbons Ogden. court has ness proceeded principle upon We can no difference later case. see questioned between that case and one before us. Both principle streams are of the same river. Each is en- affluents larger within the authorized the obstruction. tirely in facts which The dissimilarities are do not affect the legal water, Blackbird is less Creek but important question. and the it had been obstruction complete. navigable, If the and its commerce Schuylkill larger greater, hand, the will be and the other obstruction pub- only partial lic is In convenience, to be more promoted, imperative. case is a neither law of obstruction Congress forbidding to The the vessel was an element be considered. that point for the trade was relied enrolled licensed upon coasting in that case the counsel for the defendant. The court A of its ma- was silent distinct denial upon subject. to more It seems would not have been significant. teriality little deemed of too to notice. consequence require have been of that we Without the authority adjudication overruling annul the our law of cannot, Pennsylvania. judgment, which are It must be connect- bridges, that forgotten streets, are means of railroads, parts turnpikes, ing as well as waters, and commercial transportation, be much over a commerce which passes may it on the water ob- than would ever be transported greater structs. the considerations

It is for the municipal power weigh and to which shall be which decide subject, belong and how far either shall be made subservient to preferred, have exercised this other. States always power, nature of the two from objects systems govern- how- it, must continue to exercise ment subject, they always cases, ever, paramount authority Congress, whenever the States shall exerted within the be power of the commercial to tbe nation. power sphere belongs Ct of the court. exercise concurrent power The States may independent in all cases but three: in the Federal is

1. Where the exclusively lodged Constitution.

2. it is to the United States Where prohibited given to the States. nature and Where, from the subjects power, be exercised the National Government

must necessarily exclusively.* here does in our not, question judgment,

fall within either these exceptions. to distinct It is no substantive objection powers exercised the same is not It subject.” may possible their In some in- fix boundaries. definitely respective blended; action becomes the action some, stances their nation; State limits or the action displaces State is others, action because it seeks to void, limits reach of State objects beyond authority. law,

A State for and take requiring pay importer out a license before he should be to sell a bale of permitted is void,† law, imported goods, requires vessel, the master of a commerce, engaged foreign pay to a certain sum State oflicer on account of each passenger State, into the also brought foreign country void.‡ State, in the exercise But, of its forbid power, police or from abroad, another spirituous liquor imported sold State, to be retail or to sold all a li be at without ; cense and visit the violation with may prohibition such as it deem punishment Under may quaran proper.§ a vessel laws, tine or enrolled and licensed, registered, may before be her or be destination, stopped entering port afterwards removed and detained elsewhere, for indefinite period; and bale of which the duties have or goods, upon have laden with not be seized un- paid, infection, may Moore, Wheaton, 49; Houston Federalist, 5 No. 32. Maryland, Wheaton, Brown v. 12 419. † Passengers’ Cases, Howard, Cases, 7 504 License Id. ‡ § Dec. the court.

der “health and if laws,” it cannot be of its purged poison, be committed to the may flames. between the inconsistency of the States and powers

the nation, as thus exhibited, inas the case quite us; before does but it involve collision or necessarily other evil. None has any hitherto been to ensue. found is the end and aim of both. good If it he that the objected conclusion we have reached will arm the States with for evil, and liable to authority potent abused, be there are several answers of considera- worthy tion. The possible abuse is no any that it power proof does not exist. abuses arise in the Many legislation are States which wholly beyond reach of the govern- ment nation. The are to be safeguard remedy found in the virtue and intelligence people. They can make and unmake laws; constitutions and and from that tribunal there is no aIf State appeal. exercise unwisely here in the evil power question, will fall consequences Lor own citizens. chiefly upon have more at stake They than the citizens of other Hence, State. there is any as lit- tle of the abuse of this as of other danger reserved to the States. Whenever it be exercised or cov- openly shall for a in conflict ertly purpose Constitution or laws it will be within the and it will power, of this court, with a duty, interpose vigor adequate to the correction of the In evil. the Pilot case, dissent- drew an of the evils to rush in ing judge alarming picture at the breach as he in the made, alleged, Constitution. None have The stream of events has appeared. since flowed on without a due to the influence of that ripple adjudication. whenever it shall be Lastly, interpose, Congress may deemed laws. It necessary, by special general may regulate over waters, remove bridges offending bridges, those who shall thereafter punish erect them. Within of their both the sphere authority legislative judicial nation A supreme. different doctrine finds no warrant and is Constitution, abnormal and revolu- tionary. Ct. Clifford, Davis, "Wayne, JJ., dissenting.

Opinion of has there been but Since the Constitution adoption instance was to one of such interposition; legislative and not to The was destroy. Wheeling legal- save* ized, effect, annulled a decree of court was, this by under act of act, Congress. validity power “to this commerce,” was regulate recognized by distinctly in that court case. This is, also, instance, only occurring within the same in which the case has been deemed period, one for the of its remedial exercise, court, proper power.

The defendants are in no wanton or proceeding aggressive which spirit. The-authority rely given, afterwards renewed State. ease deliberately before us stands as if were the State parties Pennsyl- vania the United States. The river, within being wholly limits, her we has cannot exceeded bounds say her the' Until dormant of the Constitu- authority. tion awakened and made effective, by appropriate legisla- the' tion, reserved of the States is and its plenary, exercise in faith cannot be made the of review good this court. It is not denied that the defendants justi- fied if the law is We find valid. in the record which nothing would warrant ns in the decree of the Circuit disturbing therefore, which Court, is,

Affirmed costs. Mr. Justice CLIFFORD whom concurred WAYNE (with DAYIS, : dissenting JJ.), concur in I views many expressed by majority the court introductory part read; if has the decree just of the court had been as the there such laid down would seem propositions to de- I mand, have felt might justified silent as to remaining certain other advanced in propositions part concluding opinion, be of an appear inconsistent charac- ter, and to which I can never assent. however, is Such, fact. On the the order of the court contrary, is that the decree entered in the court below, the bill dismissing Philadelphia. 783

Dec. Gilman JJ., Clifford, Davis, dissenting. Wayne, and of Opinion understood that and it must be affirmed, complaint, decree, in that court, of adopt majority directing else in the of the views part opinion, expressed concluding to that result. never could have agreed Regarding they that I seems to be an obvious in that duty matter light, and court, dissent from the decree of should express my in the conelu I cannot concur the reasons why briefly assign of the court have come. sion to which the majority wharf are the owners of valuable prop 1. Complainants of the River Schuylkill, port situated upon within erty an act is a oí established port entry Philadelphia, in the of history at very early period of passed is that the River Schuylkill claim the country.* They and that it is river and common ancient public highway, and vessels description, largest ships sea; that to the many their wharf above property enrolled the river duly and vessels navigating ships and other ports at the of Philadelphia- licensed port and virtue of the acts under and of the United entry ves and that foreign behalf that provided; of Congress and of commerce navigation, certain entitled sels, rights entitled to are of and to, been accustomed have long of Phila bound river, port that cargoes navigate vessels, right, that such ; pursuance and delphia at the and port, to enter their cargoes accustomed have been wharves port same at the bordering to discharge at said with return load cargoes and to river, ports. clear direct foreign wharves, have collected ma- that the is, respondents alleged Injury are now workmen, engaged erecting terials, employed the river at the channel of across a bridge and constructing below the place in the Street, Philadelphia, city Chestnut situated. complainants wharf property -where and as the is, plan erected to be alleged, about Bridge and al but a and with draw, pier single shows, without feet above ordinary thirty-three an elevation only of the river. surface water Large, 632. at Stat. Ct. Clifford, Davis, JJ., dissenting. Wayne, in the bill of com-

Substance of tbe as contained charge over and is, keeping plaint erecting the manner as river, the channel proposed across and obstruct the will threatened, impede will hinder and the citizens their interrupt the same as a lawful common use public highway; licenses that it will hinder and obstruct also charge enrolment and that it will hinder and act, under the granted in the exercise of of countries obstruct the subjects foreign navigation; and that it will commerce and their of rights trade, and diminish, tend destroy greatly interrupt, citizens to the river, and business of the commerce, upon of all citizens of the and common nuisance damage great and their States, irreparable injury. millions of is, that dol- of Statement complainants many the citizens of the United States lars have been expended by termina- works in the construction public improvement, river, tide-water on that at the head of navigation ting measure, usefulness, in a for their depend, prosperity, great river; and the free unobstructed use value and upon will in this connection they charge and bridge the value of their wharf lessen and property injure greatly commerce and trade there- and will divert river, revenue, diminish the and tolls, and from, profits will thereby the trade and com- will, wharves, fact, and destroy of their to their and their wharves, damage to and from merce irreparable injury. also that the is, Schuyl- bill complaint

Allegation River, and river, having good kill being navigable and the wharf beyond extending tide-water navigation, seven miles and for about of the complainants, property the River Delaware— a branch of and mouth, being from its of New and between the States Jersey which river passes of all the States lawfully citizens Delaware—the and on their lawful and to carry its free entitled to navigation, or obstruction respond- hindrance without commerce of State authority, any pretence ents, under pretence whatever.

Dec. JJ., Clifford, Davis, dissenting. Wayne, under an act of the Assem- General

Respondents justify, State of them to build bly Pennsylvania, authorizing described in the bill of bridge complaint. insist that the is a Complainants nuisance, bridge public that it abated, for such other pray further relief in the as the nature of the ease and premises conscience equity good may require. Propositions that the are, River is a complainants Schuylkill regu- late commerce with nations and. the several foreign among as Constitution; conferred in the and that Congress has exercised power, regulated navigation that river within the Constitution, has meaning secured to the citizens of the several thereby States, by virtue of their so conferred the Constitution, authority the free and unobstructed use of the river as a paramount for all the of commerce and right, purposes navigation. as the has exercised the Congress, complainants say, river; and their regulated next is, that proposition -the or threatened constructed, interferes constructed, with the of that use, enjoyment is inconsistent with, and in violation of the acts of Con- the and destructive the gress of regulating navigation, rights derived under them, that to the extent of that interfer- ence with the free of the the act of the navigation of the of re- legislature affords to the Pennsylvania no spondents because it is in con- authority justification, flict with the acts of which are the Congress, law. paramount to show that the

Argument assumed the com ground by is the same plainants as that on exactly which the case of the and was Wheeling is bridge proceeded decided, finally because the unnecessary, stands affirmed proposition forever the of by in an authority court, opinion pronounced by one of the justices who decided the and who still cause, holds a seat on this bench.* to that it opinion, Referring will be seen that the who delivered it first stated the judge Howard, The Wheeling Bridge, 18 430. Ct. Clifford, Davis, JJ., of Wayne, dissenting. in bill of and then said: assumed the complaint, grounds “ the view of the case taken of the Such being majority found no at the conclusion court, difficulty they arriving the of the river the that the obstruction of navigation the was a violation of the secured to public by right bridgé and laws of nor in Constitution Congress, applying íd of the behalf None of remedy plaintiff.” appropi’iate are denied of the these introductory part propositions the court. On the majority contrary, opinion read views Mr. JuAtice just repeats expressed opinion to, in- in the case referred Nelson already impliedly views as a correct dorses those exposition rivers sea, over into the public navigable Congress emptying of this redress and of the court to injuries right private in the same, from unlawful obstructions resulting paramount navigation. as l the correctness of those views applie Conceding were

the case in which opinion expressed, be- read, as sets a distinction court, just up majority consideration, and main- tween that case the case under to, case. those views are tains that not present applicable circumlocution, distinction, supposed Stripped is, of the cour*, majority maintained it does that has in the case at bar that appear Congress act the river de- regulating navigation passed any in the bill of scribed Power complaint. Cougre-a the several as well as xith commerce among regulate the concession is— nations, admitted, and fully foreign the course of the at least impliedly argument— have and that the case, this court would jurisdiction if relief, be entitled to would appeared oojnplainants and had as conferred, had exercised river within meaning regulated advanced, as I under- .Precise doctrine of the Constitution. act has not that is, passed any stand the Congress opinion, that as river, the inasmuch the of navigation regulating law of the the is no Federal subject, there regulation of the erection the bridge, the State legislature, authorizing Dec. v. Clifford, Davis, JJ., Wayne, dissentirg. of is an obstruction to nav valid even if the law,

is a is because the State law not conflict with any igation, to the otherwise act of para protection Congress giving of admission that if is, mount Implied right navigation. of is an the there act of Congress regulating navigation is a river, then the of navigation paramount right right, law of the that, be in that no event, conclusion must State could afford any justification respondents an obstruc if it is nuisance erecting bridge, tion that paramount right.* 4. majority Dissenting I hold that has court this point, Congress regulated of this within the river Consti meaning navigation State, and that the law the tution, justification pleaded an so far as it authorizes ob of the acts of respondents, is an invalid struction to free law. admitted, it is includes and it well Commerce, navigation; court, that in settled, on the authority of regulating States, nations, commerce foreign among at lines does not stop jurisdictional of this court is, several States. decision Express nations is that the whole commerce with foreign power Congress regulate wherever in the States be exercised foreign voyage may terminate; and that the commerce commence or among cannot be the exterior boundary States stopped at State, into the introduced but may interior.† was a between State of intercourse

5. Right and as such was fully recognized common-law privilege, Those was formed. who before the Constitution respected found it re- instrument existing right, framed interest, one as national gave high garding it. were the Such views the power to Congress regulate more than J.,C. Marshall, forty years expressed ago; Parmeter, Price, 350; Burridge, 10 Same v. Attorney-General v. Id. 412. Attorney-General, Id. 378; Parmeter Wheaton, Ogden, 9 Gibbons †

YOL. III. Ct. Gilman Davis, J., Clifford, dissenting. J "Wayne, and Opinion in the exercise and he added, power Congress or vessels or has an act for ships passed enrolling licensing and for and fisheries, in the to be employed coasting-trade en- that the contended the same. Respondents regulating from to did not to sail port, rolment act port give right far a so itself to but confined pre-existing right regulating licensed enrolled and confer certain as to only privileges exercise; but the court rejected vessels in its promptly attaches held that where the legislature proposition, a the exercise of to certain exemptions right privileges is law must a absolute, its imply over control was, that Direct adjudication to exercise right. course of all to the reason, to it would be contrary to a State is unable vessel affairs, strip human say the exercise of a attendant on privileges particular itself. annul the and may right yet right, is used that act as the word License, Congress, and the court or court, authority; means, say permission is a do permission a license to particular thing held that and if person do that granted by "to thing, authority transfers it, grantee right having grant the lan- authorize. whatever it to do purports Adopting transfers to him case, of the court in that certainly guage do what can transfer to which the the grantor license. within terms under the acts and licensed and vessels enrolled

Ships are deemed vessels of others, and no ships Congress, or vessels entitled to the ships United States privileges court, trade. in the Majority employed coasting admit that or vessel read, in the just ship stated opinion enrolled and armed which is States, duly of the United the enrolment acts, as is such license, required by coasting the United aud States, the coast of may navigate along rivers sea into from the public navigable open pass as far as the same the United up the case under waters extend. more directly Coming admits that such a or vessel consideration, the ship a coast- has a under such enrolment with such right, Philabelphia. Dec. Clifford, Davis, JJ., dissenting. "Wayne, and the sea liver described license,

ing navigate np record to the wharves complainants. Unrestricted that admission covers unexplained, which and shows con- claim, the everything complainants that to is said are entitled relief. But it that clusively under this the circumstances of is case, right, the dam to the of State to or the right paramount bridge and close it all river, commercial intercourse. Ex- against the conceded, tent of that a therefore, or right is, ship licensed, enrolled and the vessel port duly sailing State, enter river of the of another public may navigable unless the sea, from the States through United into the sea the flows as it falls has the river bridged arrives ofl‘ before the vessel it, a dam across or constructed of the the mouth of the river. Plain of owner the right master to case, the is to instruct the vessel, in that state of if the of but about and to the return port departure; go at its mouth, is when or vessel arrives river the open ship she the of to may pass up port entry, discharge highest load for the return trip. cargo mean- in the Her unless undoubted, return is then is closed time the the river forever navigation and in State, the dam constructed or under authority vessel the same event owner of the has that privilege the master in He direct he has case that of shipwreck. land. , and mariners to return by be done in arise as is to Doubtless to what question may vessel .and with the cargo, that state of case impounded record, as that is involved but, present question .rule as it seems left for must be future consideration. .Such subversive of is me, reason, absolutely to all contrary more than which, of the of the interests one country, call the con- colonies induced the other, people any the Constitution. vention framed in the ease of court the decision 7. Unquestionably ground proceeded throughout Gibbons Ogden to be em- vessels, act for or ships licensing enrolling fisheries, regulating trade ployed coasting Ct Clifford, Davis, JJ., dissenting. ahd Wayne, a sufficient was of itself same, regulation naviga- rivers United States all the tion of United sail- States, and vessels of the ships secure n free license, under coasting ing of the decision Best exposition such public highways. where decree, is to found that case the court licenses set the several up appellant the court say which were bill of to the in his answer complaint, granted Consti- pursuance an act under Congress passed full to those ves- authority of the United gave tution States for the the waters of pur- sels to navigate law of trade, on the coastwise the State pose carrying and that so much of notwithstanding; contrary vessels so licensed from navi- the State as prohibited laws of means of fire or waters of the State steam gating of the void. to the Constitution United States and repugnant is, as the of that decree it is language incomprehen- Express can of how it be difference of me sible to any opinion. is afforded the doctrines of that protection by

Complete and vessels .ofthe United to all ships case duly licensed, in enrolled public navigating navigable United States which of the into the sea or into rivers empty which form a of sea, gulfs, part bays are ail treated as arms sea and rivers of of None who in that United States. judges participated intimated that the even Hudson was else decision anything the sea and an arm of river than of public navigable Public rivers, States. whose waters fall rivers of the United sea, into the are States in the sense of nations and of the the law of Constitution of the United are so law, treated all writers They States. by upon public is no well-considered of and there decision the Pederá! courts which does not treat them in the same way.* however,

8. Claim does not rest alone appellants, doctrines of that ease, but show that proofs Black, Commerce, Propeller Dec. Clifford, Davis, JJ., Wayne, dissenting.

their wharf and the river at the where it is property place situated both within as established port entry, act of Congress.

Prior to the of the Constitution the adoption establish was in the several States, but ports entry held, court the last delivered in the case of that the in that behalf, sur Wheeling bridge,* rendered under the Constitution Federal Government, and left to section of the act of the 2d of Congress. Eighth March, that the district of 1799, shall provides Philadelphia include all the shores and waters of the River Delaware and the rivers and waters connectedtherewith within the State lying that shall be Pennsylvania; city Philadelphia the sole for the port entry same.† is,

Subsequent provision port entry delivery for the district of shall be bounded Philadelphia navy on the south, Gunner’s Run on the yard north, anything former law to the any contrary notwithstanding.‡ rather than Appellees mouth suggest argue the river described the bill of is not included complaint in that but the is of no be description, point importance, cause it is clear, that the river at the beyond controversy, where the wharf place is situ property complainants and for a ated, considerable distance above below is it, within the limits confir acknowledged port. Ample mation of this if will view, needed, be found in the case of Devoe et al. v. Penrose which was Ferry Co.,§ Bridge deckled Mr. He said Justice Grier. commerce on River below the is as Schuylkill port much Philadelphia Ohio, entitled to as that of the protection Dela Mississippi, ware, Hudson; and that the in that case complainants had the same interference of the court in their behalf as was shown in the Pennsylvania case. it is Wheeling bridge the views supposed Although learned of the have some as to the judge undergone change * Howard, 18 435. 1 Large, Stat. at 632. † 715. 3 American Law Id. Register, ‡ § 83. 74k Ct. Davis, JJ., Clifford, dissenting. Wayne, has of the Federal courts, sup- jurisdiction always in all matters of fact he was accurate entirely posed (cid:127) on of the court founded. judgment as Other acts of are cited

9. complainants it will but consideration, under proposition supporting more two of them special not be than necessary give March, of the 2d of examination. First section of act the United divides sea-coast and rivers navigable 1819, States into two and the declared districts, purpose great the districts is the more convenient regulation creating districts the sea-coast of the trade.” All the coasting rivers the United between the eastern limits of navigable included States and the southern limits of Georgia dis all the the first and the district includes district, second River sea-coast rivers tricts on the between navigable Perdido the western limits of the United States.* district, acts created a third pro

Subsequent great sea-coasts, harbors, vided it should all the include ports, limits of southern rivers Georgia between navigable should and the River that it Perdido, and prior regulations provisions act.† all of the entertained that Doubt, therefore, cannot be into the States rivers of the United falling or into the sea, sea, which form a bays part gulfs are included in one other of the three com- or the mercial districts established for the expressly convenient trade. regulation coasting it is not that Mar at these several acts

Looking surprising that “to J., said, O. should have shall, Ogden, Gibbons seems that the whole act on the subject the coui't it clear to those trade, principles coasting according statutes, the construction of implies, unequivocally, govern licensed vessels to on the authority carry coasting de trade.” to that view law also support Strong the case of the rived from Wheeling appears bridge, in the the first delivered ease.‡ Large, at 492. Id. 3 Stat. † Howard, Wheeling Bridge, 55 7. ‡ Dec. 743 v. Davis, Clifford, JJ., dissenting. Wayne, the court view of the ease, this say upon

Remarking River is historical of the Ohio that effect navigability add that for They which all fact courts may recognize. been Con it has regulatedby the commerce upon many years ports, establishing under commercial power, by gress, licenses take out to vessels which navigate requiring of their certain rules for the passengers safety to observe one of those acts of Congress, Every cargoes. to are, as were became and moment applicable passed, they Ohio, as to described in the bill of the river complaint must doubt, that me, can be no as it seems and there said re has the same effect. held have Nothing Creek,* because, case v. Blackbird of Wilson specting do with the has view I take of it, opinion nothing court the same was rendered by present question. Judgment in the case Gibbons in that case which judgment gave who has any a man I and there is not suppose, living, Ogden, views of court to conclude that the constitutional reason time had at that undergone any change. that the that it will be seen case,

Instead of ovei’ruling it, allude to who did not even Chief Justice gave Constitution as a sound exposition although to no one it is States second importance point he ever delivered. Evidently great magistrate doctrines, refer to of its as he had no occasion to it or to any low, as a creek mentioned in the case spoke sluggish and treated the of little no erection water, importance, in the bill one described reclaim complaint adapted health, marshes as essential the adjacent the law sustained the constitutionality authorizing that it was within reserved erection ground of the State. powers police has is, that

Conclusion regulated law under respon- dents in conflict with those regulations, attempt justify to the re- therefore is and afl'ords no void, justification

* Peters, n Ct Secrist Green. of the case.

Statement the facts then the to be so, Admitting complain- spondents. even main- recover ants entitled to principle of the in the court. majority tained Secrist v. Green. date, acknowledgment day of its on the before a master 1. An of chancery, York, 3d March, in of a deed executed probate . New being made 1818— subscribing master, of personally witness known to the identity grant with party professing presenting the party himself to acknowledge the record of acknowledgment certifying that the —and deed “consented that grantor might be recorded where neces- acknowledgment deed, sary” sufficient the laws of —was subject, at regulating the the date the deed New York when was made. so', land conveying Illinois, such deed Having in was entitled 2. Illinois; in the laws allowing be recorded of that State deeds for State, out of it in the executed but within the lands conformity acknowledged proved when recorded law ; recorded, so properly of the State where executed when proof other read without execution. being heirship, to establish death sufficient a statement Reputation 3. witness, .long deposition, intimately of them in ancient testifies, family about he acquainted says with the who Bible, appears family entries in certain children (“as time, at true,”) I believe died such a another child to be at time, believe,” not I am informed and to ex- another “as —is at the trial. ception legal proceedings due of intended a decree finds that notice

4. When decedent, finding is, given had been to all the heirs of a partition Illinois, though not evidence primd conclusive fact. facie established, being proceedings of a once its cannot be court 6. Jurisdiction them, one not a and who seeks no collaterally by questioned party . them. rights under Illinois, State, one of a and with copy proved will By the' laws of Congress under the act for duly authenticated probate its letters others, may, certain to be after of records used the authentication county county courts of a in the gone through, be recorded formalities recorded, Illinois, And when so property. testator had where the evidence; being so records are copies county of such court certified general of the State. under the laws in the Circuit Secrist, Green brought ejectment against land in Northern recover that State Illinois, Court

Case Details

Case Name: Gilman v. Philadelphia

Court Name: Supreme Court of the United States

Date Published: Jan 29, 1866

Citation: 70 U.S. 713

Court Abbreviation: SCOTUS