Pennsylvania v. Wheeling & Belmont Bridge Co.

421 Pеnnsylvania 'Wheeling Bridge of Belmont v. and Co. State Pennsylvania v. The of and State The Bel Bridge Company, mont et al. congress regulate commerce, power regulation The of includes the of intercourse navigation, consequently, power and and the to determine what shall or shall not deemed, judgment law, of navigation. he in an obstruction of Stats, 31, 1852, the act of provisions congress passed August (10 Barge, The of its 6th and 112.) declaring in 7th sections over the then River at bridges the Ohio Wheel- Bridgeport, ing height position, to be and and lawful structures and at their River, the and requiring their vessels so as not to interfere officers navigating regulate crews of vessels the Ohio the of said bridges, elevation construction legitimate exercise, by congress, regu- the are within of its constitutional late commerce. congress by The sections of of said the aforesaid act arc not invalid the made between the reason of River, in the compact, respect.to free of the Ohio the,time Virginia Kentucky, congress with the States of State was sanction the latter into the admitted Union. they in provision States, conflict with the are Neither the constitution the United preference providing revenue that “no bo given by shall of commerce or ports to the of one State over those of another.” true, general proposition it is an congress that act a judgment cannot annul As supremo rights the the impair thereby, court of United- determinecl adjudications ; respects rights especially upon private parties tlie and hence the case, this court heretofore respects decree of rendered in this so far as it the costs complainant, by adjudged unaffected the act of to. referred portion term, 1852, of the deeree-of May at the in ease of But Pennsylvania v. AVheeling Bridge Company, which re- proceeded the abatement of the bridge, lates to ground bridge that the regulations (cid:127)was in with the then existing by congress, conflict commerce and was executory, depending upon the bridge continuing to be unlawful obstruction to public right navigation; of exorcise right having free been since modified congress in of its constitutional commerce so that longer bridge obstruction, is no an unlawful the decree cannot now be enforced. to, act bridge longer being referred no an un- After awith right, it, lawful interference authority defendant’s to maintain position height, enactment; its then existed from the moment for their authority then powers governments, combined concurrent of both found state and federal, and if those system. sufficient none can be our complainant’s motions for writ assistance to tire decree of the execute 27th of 1S52, by May, sequestration against the abatement of the and for a the cor- poration disobeying attachment its officersfor said decree are therefore refused; punish and the motions to the contempt eorporation.and its officers injunction disobeying granted by Grier, 1854, Juno, Mr. Justice the 27th overruled, injunction are also is dissolved. being The decree for costs congress, unaffected the act of for taxation motion of execution for their granted. award collection is case was one of in this original jurisdiction This side; said to be a continuation of the equity suit between the same 13 How. 518. parties reported case, to that the reader that at perceive will By turning page 627, to move the day court on the given plaintiffs of the decree. It is now to continue the nar- subject proposed rative from time. The motion made and the motion made complainant defendants the suit, dismiss need not be particularly stated. VOL. xviii. summer of In the was blown down vio- storm,

lent were to rebuild it company accord- preparing when next original plan, ing step history taken. case was On the 26th of June, 1854, in of the day vacation supreme court, the her and Pennsylvania, by attorney-general counsel, her Edwin M. Stanton, pursuant notice previous on served and Belmоnt Wheeling Company, Bridge ap- before Honorable it. C. Grier, of the one peared justices of the court States, of the United chambers, at and supreme an moved for as for in a injunction bill prayed supplemental then exhibited. and substance of the bill is stated object order. subjoined On affidavits, bill and order hearing following made and injunction granted. “ Court Supreme In United States. Pennsylvania The State v. In Equity. Wheeling Bridge Company. and Belmont Before the Honorable GRIER, R. C. one of the of the judges court United States. supreme “Whereas, June, on the at 26th day,of the United court room in the State of States Penn- Philadelphia, city her counsel, and exhibited before sylvania, attorney-general Grier, one of me, C. R. court of the justices supreme her States, bill of United the Wheel- complaint equity against forth, and Belmont Bridge Company, setting other ing among the said and Belmont Wheeling things, is about to erect and Bridge Company over and construct across the eastern channel of the Ohio at River between Zane’s Wheeling, 'the and main shore, Island at a less elevation than is Virginia the decree of the court of the United prescribed supreme heretofore rendered said States against company complaint State, said of the Ohio River whereby navigation obstructed, class steamboats will largest injury ; of the. said State said in-the vacation court the supreme hath to me an as complainant applied injunction prayed Bridge said bill the said and Belmont -for in against Wheeling and its officers, president, engineers, Company, managers, agents, contractors, servants, them from and con- enjoin erecting at the aforesaid at a elevation less than structing place aforesaid, decree act or doing any prescribed River, to obstruct the Ohio thing prayed said bill: Wheeling an.d Belmont reasonable notice of said been And application having given the said unto Bridge Company ap- me, to resist said before pear arguments apрlication, proofs it is heard, considered and counsel being adjudged bill, for in the said be, that is same injunction, prayed allowed. And it is that the ordered writ of hereby, injunction States United of America forthwith issued clerk court of the United under the supreme seal of the said said officers, Bridge Company, agents, president, managers, engineers, contractors, servants, and all persons acting by or otherwise, command- instigation,.authority, procurement, or them, and them, under the requiring ing every penalty law, do forthwith and desist and absolutely ab-. stain from to be erected erecting constructing, causing constructed, structure, device, in, over, or across any bridge, River, channel of the Ohio eastern between Wheeling, shore, and the main Zane’s Island a less elevation Virginia the decree aforesaid of than is prescribed by supreme of the United States said entered at bridge company, term and from adjourned May, suspend- stretching, or or to be stretched, or ing, placing, causing suspended, placed, cables, wires, chains, iron or or timber, structure, any ropes, any material, nel, whatsoever, in, over, or or across the said chan- thing a less elevation than at decree aforesaid, prescribed by-the and from keeping cable, wire, chain, maintaining any rope, timber, whatsoever, or in, over, across thing suspended a less channel, said aforesaid, at elevation than is the decree prescribed by done, and from to be act or doing, causing thing tp the free of said channel of the obstruct Ohio River.” “ It is ordered that marshal of the District of Columbia serve said do forthwith writ.” the clerk of the And court of the United States is supreme bill directed to file the aforesaid on which the complainant ap- allowance are order and made, and enter this issue plication the writ of also, above that he said ; writ allowed issue the injunction to be served re- marshal, subpoena chancery, said quiring plead, Bridge Company appear, answer, or demur said bill within from the . ninety days service of said writ. June, Given under hand, this 26th my Philadelphia, day R. C. Grier, U. S. Sup. Associate Justice Court order of the clerk been filed in office preceding having Pennsylvania Bridge and Belmont June, court on the 27th writ of injunc- supreme day certified decree of tion, copy' supreme issued and de- term, 1852, thereto, annexed entered May Columbia, the District of as follows:— marshal of livered oe The United States America. Supreme States,

In the the United ss. Court of America, to the Wheel- The President United States and Belmont its president, Company, managers, ing servants, and to officers, each and contractors, agents, engineers, whomsoever, them, and to all every persons : greeting hath Whereas, the State of application made of the su- the Honorable one of the Grier, before R. C. justices court of the for an States, injunction United prayed preme said before for in her bill of filed in the exhibited justice, complaint : States court of United supreme whereas, And of said application, following hearing :—made order was order was injunction, preceding [In We, recited.] matter therefore, aforesaid, do having regard and command the said Wheeling enjoin- strictly Bridge Company, officers, president, managers, engineers, contractors, and all servants, and agents, persons acting by advice, otherwise, to ob- procurement, instigation, authority, aforesaid order serve injunction. obey thence not, fail under the full law en- Hereof penalty suing. Witness the Honorable B. chief Taney, Roger justice D. June, of the United this 28th A. supreme 1854. day ,

Attest, Carroll, Wm. Thomas Clerk Court United States. Supreme served writs injunction company by being upon and a its office and its at secretary, leaving copy president and proceeded also’upon managers company, and it erect injunction, notwithstanding in November. pleted counsel, her term, 1854, At December the complainant, by a motion for filed notice to the previous company, given having of court for a contempt sequestration company, against an attachment for. and a motion disobeying injunction, Wheeling Bridge and State for their the officers personally against contempt disobeying (cid:127) The motions were as follows :— injunction.

Motion Sequestration. now, wit, 1854, And at the term, December comes the and her moves the Pennsylvania, by attorney-general, court to order and direct be issued writ to Wheel- and Belmont its estate, real, ing sequestrate Company, and personal, mixed, rents, issues, arid thereof, profits rights, and franchises, chattels, credits, privileges goods, effects, and court, breach and moneys, disobedience to the mands of the contempt writ, orders, lawful decree, and com- process, court of the States. United supreme The breaches and writ, orders, disobedience to said process, and decree, aforesaid, commands are stated and charged specifi- as follows:— cally 1. That after service and Belmont upon the marshal of the of Columbia, District Bridge Company, by of a of a writ of issued of said out copy injunction pur- suant to an order of allowance made the 26th of June, day 1854, the Honorable Grier, B. C. one of the judges said court, the said have said writ supreme disobeyed company and are and injunction, acts, engaged doing performing and have and caused acts to be done, disobedience procured of said and of the 'and of said injunction process authority court. 2. That after service said the marshal company by aforesaid, of a said the decree entered court supreme copy at in the case of 1852, term of adjourned May, v. The Pennsylvania and Bridge Company said others, have said decree. company disobeyed 3. That since the service of the wilt of and decree injunction as aforesaid said said stretched, company, company to be stretched, caused and placed, suspended, suspended, and across the procured iron cables, wires, chains, over placed, ropes, eastern River, channel of Ohio between Zane’s the main W shore, Island and in disobedi- Virginia heeling, ; ence said and have erected constructed, injunction and in constructing, engaged erecting causing constructed, to be erected over and across procuring channel, a less than the said elevation prescribed by said decree United entered supreme at the diso- aforesaid, term and in adjourned May, bedience writ and' have and main- of said of injunction; kept tained, wires, cables, chains, and are keeping maintaining,

33* COURT.- Pennsylvania v. Wheeling and Belmont Bridge Co. timbers, in, planks over, suspended and across the said chan- nel, at a less elevation than prescribed decree afore- , said. 4. That since service of said writ and decree as afore- said, the said have obstructed the free company the said channel of the Ohio River, have caused and pro- obstructed, cured the same to be and are now the same keeping obstructed, in breach disobedience of said writ of injunc- ' tion decree. F. W. Hughes, Attorney- General Pennsylvania.

Motion Attachment. now, wit, And at the term, 1854, December comes the State her Pennsylvania, moves court attorney-general, Ellet, Jr., an order that Charles Baker, James and E. H. Fitz- stand committed of the District hugh for jail of-Columbia, breach of and disobedience to the contempt writ, order, decree, lawful commands of process, supreme of the United States. set out breaches were the same as [The above.] A motion for writ assistance to execute decree of this filed, court made in also the court to May, praying order and direct such writ to the marshal of the District of Columbia. also made A motion was for an award of execution for the n ' 1852. decreed costs May, counsel, 'The defendants' their appeared by resisted the under the 6th and 7th motions sections of. the act foregoing Stat. еntitled congress, (10 Large,-112,) “ An act for the service making Post- appropriations Office fiscal Department during year thirtieth ending one June, thousand hundred and and for eight fifty-three, other purposes. enacted, Sec. 6. And it further that the across bridges Ohio River in the' State of and at Wheeling, Virginia, Ohio, in the State of Island, Zane’s Bridgeport, said abutting river, are declared to be structures, lawful hereby their and elevation,-and shall be held and so taken to present position be, law or laws of the United States to the any thing notwithstanding. contrary Sec. 7. And it further enacted, said are bridges declared to and are established post-roads the mails and that United and Bel- mont authorized have and maintain Bridge Company elevation, said at their site and officers bridges present river, of all vessels boats said and crews are re- navigating the use of boats, their said vessels and and of quired thereto, so as not to chimneys interfere belonging any pipes and construction of said the elevation bridges. also the defendants moved dissolve injunction granted Justice Grier. Mr. by term, several motions 1854, these came on At December to be Stanton, and were Edivin M. heard, Mr. State argued by and M. Russell, Mr. Johnson Mr. Charles Pennsylvania by the defendants. for Mr. the made the Stanton, for complainant, following points, viz:— 1. That at the date of the act of congress legal- State had izing "Wheeling Bridge, Pennsylvania by “ court of the United States, a judgment supreme just have the of the Ohio River made right legal alteration,” free removal of the in con- by by with the decree entered in' 1852. formity May, 2. That this is not taken right away by congress declaring “ to be a structure,” lawful because has no bridge judi- cial to review or reverse of the authority judgment supreme court, and such not declaration is within scope legis- lative authority congress. “ 3. It taken established as a away by bridge being because under the to establish post-road,” con- post-roads, ‍‌​‌‌​​​‌‌​​​​​‌​‌​‌​​‌‌​‌‌‌​​‌​​​‌​​​‌‌‌​​​‌​‌​​‍no has to construct or maintain a gress authority within a road or individual private injury propеrty right. 4. It not taken of the act requirements away by impos- on vessels the not to interfere with the ing construction duty and elevation of the because those requirements are im- bridge,” not intrusted to the posed object nor general government, execution of its commercial power; tax they operate of a State, and a exports give preference by State, commerce of one over the of another. ports ports 5. could not be taken with- away by any power out and none is rendered. just compensation, 6. It was the defendants duty obey command of by removing altering required disobedience, are decree; for their they contempt, further in defiance contempt by rebuilding decree, and of June, issued on the 27th of injunction 1854, should be dealt with accordingly sequestration attachment. 7. The decree court remains force, now is entitled to have executed writ of plainant assistance and 'SUPREME costs process compel payment awarded the decree.

The counsel for the defendants made the viz: following points, motion to I.On the dissolve the injunction. 1. was awarded without injunction “reasonable notice ” the time and of 1793, 2, Act March place application. 5. . § 2. It of a was awarded different circuit from that judge it was to in which U. S. operate. Courts, 34, Laws note. p. 3. It was awarded without bond and to in- requiring security the defendant. demnify It4. was awarded aon bill filed either to carry pro- suit, or to into effect decree made ceedings pending carry ain former suit; lie, this bill does not nor is it in form proper either Plead. 352, purpose. 429; Adams v. Eq. Story’s § 2 Madd, 53. Dowdings, has act Au- Congress legalized Wheeling Bridge; and had 1852; constitutional it. See gust legalize delivered in the opinions case. formerly Wheeling‘Bridge The act be sustained under the power regulate ; merce Gibbons 9 1; v. Wheat. United States v. Coombs, Ogden, 72, 12 Pet. roads or ; or under the to established (op. 78) post- this, ; under both And powers. notwithstanding between Pollard’s Lessee compact v. Virginia Kentucky; 212, 3 229, How. The for Hagam, (op. 230;) Society propagat- Gallis, v. 2 Wheeler, C. Gospel C. It. ing 138; Evans v. Easton, Pet. C. C. 322. 1 R. But does compact not apply. 6. A offered to absolute the was make decree in motion said

bill mentioned, and was dismissed this court for want by pros- ecution on the December, 15th 1853. day II. for motion the writ of assistance. Against The same authorities as above and hereafter cited. III. motions attachment and Against sequestration. 1. The evidence offered, does not show that the parties been of contempt. guilty 2. The was, and is a because injunction awarded with- nullity, out notice, without bond, no requiring by judge having jurisdiction. 3. The issued, ndt injunction was served regularly proper officers. 4. The injunction did not out the duties it point required the defendants In effect it adequate commanded certainty. the defendants observe of a decree requirements “required” such as order of nothing injunction vaguely 1855. 429 Bridge Wheeling Co,. and Belmont That decree was on its it did assume that acquire. seemed injunc- and left questions open face interlocutory Birchett v. been decided. Bollings, assume to have. tion may 442. Munf. to inflict 5. court has no summary punishment at chambers. Such of a mere order disobedience' disobedience can judge any if at indictment. Act all, only punished, Stats, c. at 1831, 99, Large, of the court. NELSON delivered M. Justice opinion a bill filed to is founded motion in this case carry the de- into a decree of the rendered execution 1852, which decree de- fendants at the term adjourned May, River, clared the errected them across Ohio between to be an obstruction the free Island, Zane’s of the said occasioned river, special thereby for which- there adequate damage plaintiff, be removed, the obstruction law, and directed that remedy either designated, elevating height abatement.' , 31st decree, Since the rendition of this and on the August, “: an act of That has follows passed been in the State of across the Ohio Vir- River bridges Wheeling, of Ohio, and at in the State ginia, Bridgeport, abutting to be river, declared Island, Zane’s said lawful hereby are. elevations, structures in their shall presént _positibns and taken to be, so held in the law or- laws thing any United States to the contrary notwithstanding. to be and And further: That the be declared are said bridges mails of the established United post-roads and that the Company are have and at their authorized to maintain present bridges site and and the officers and -of all vessels and ; elevation crews the use of boats said river required navigating thereto, vessels, their said belonging pipes chimneys of said so as not to interfere the elevation construction bridges.” as The defendants this act of rely congress furnishing upon constructed, for the continuance of the bridge authority as effect and the decree of the court the of operation superseding it an rendered, obstruction naviga- previously declaring tion. act is uncon- On the it insisted that the part plaintiff, in the stitutional and the void, which raises question principal case. is ma- In order to of it question proper understanding this of the terial to recur to the which ground upon ma- and'principles the of court the decree proceeded now jority rendering sought be enforced. had been constructed under an act of the bridge legis- lature of the of and it was- admitted that Virginia; act State- conferred full the defendants 'authority erection, upon of of subject only congress claimed, however, merce. the and had It was had acted and had the of the Ohio subject River, -regulated navigation secured to the virtue of its public, thereby authority, free same; the and unobstructed use of the and that the erec- of tion so far as it the interfered' with of bridge, enjoyment use, this was inconsistent with and in violation of the acts of and destructive of the derived under them; and congress, right that, to the extent of this interference with free navigation the river, of the act of the "of afforded no legislature Virginia or- was in conflict with the justification. acts of authority congress, - which were the law. paramount This the case taken view -the being majority found no at the conclusion, arriving difficulty obstruction of the river, navigation bridge, violation secured to the constitution right nor in congress, applying appropriate laws remedy plaintiff. behalf ground principles be will found in How. 518. proceeded reported Since, however, the decree, rendition of this the acts of con- to, have been gress, already'referred passed, by. is made a of the mails post-road United are authorized to have and defendants maintain elevation, site and all requiring present persons the -riverto such so as not to in- regulate navigating navigation it. terfere with thérefore, this far, So created an obstruction to the the river, free view of acts con- navigation previous as modified regarded subsequent gress, they ¿n and, still in fact, legislation; is not so in although .obstruction said, thé law. We contemplation already is undoubted, that the act of principle legislature, conferred full maintain Virginia erect and authority exercise of the subject river. That exercise navigation having body consistent with its power, regulated preservation continuation, it would seem be maintain authority That complete. combines concurrent powers authority n both federal, which, sufficient, state and if not- governments, '' none found in our can certainly government. system Pennsylvania Bridge v. and Belmont Co. of whether not enter the not question, doWe upon under the constitution, the to power, authority possess for, post-roads,” legalize establish post-offices bridge; such can be derived from clause, that no powers conceding at is, least, be admitted that it included the necessarily it must the commerce several States. conferred among of commerce includes intercourse and The regulation naviga- of and, course, the determine what shall or tion, shall deemed of law an obstruction not judgment navigation; seen, as have has exercised we been consistent power, of the continuance the bridge. with act of it is that the cannot have the effect But urged, the of the court ren- and dered, annul judgment already operation of or the determined in favor rights thereby plaintiff. ’ is as a not' to be This, denied, general proposition, certainly as it adjudication private respects upon rights especially . When have into be- _passed judgment’the fight parties. comes absolute, 'it is the ánd of the court enforce it. duty is however, before class us, The case from this distinguishable so far cases, decree portion respects directing interference abatement Its with the free .the bridge. of the river constituted obstruction an public navigation secured acts this congress. right But, navigation public although right right all-, mon to private party sustaining special damage yet, has been case, held in this obstruction maintain may, to recover his it, action law dam- party creating or, a bill ; .file prevent irreparable injury, chancery ages the or to cases, obstruction. In both removing purpose removal, arises out of the right "damages, private unlawful interference'with enjoyment public right, is seen, have under the which, as we congress. if the this case had Now, we been an action agree, remedy law, and rendered in favor of the judgment plaintiff to these would the reach not right beyond damages, passed It would have of the power congress. depended, upon free river, but right upon us, court. decree before so far as it judgment "the costs stands the same adjudged, respect principles, is unaffected But that subsequent law. part decree, a obstruction, the abatement directing executory, the removal of decree, requires continuing only but the defendants reconstruction enjoins against any or continuance. a future contin- Now, whether existing not it obstruction whether or uing question depends time, interferes If, mean right navigation; decree, this has been modified since right competent so that is no an unlawful obstruction, authority, longer the decree of the court cannot it is quite plain enforced. is no interference the There with enjoyment the longer any with law, inconsistent no more than there would right public where the tion it, himself had consented to after the plaintiff rendi- decree. the the decree had been executed, Suppose and that of the after the law can be doubted question, if that a but the defendants would have had to reconstruct right is it clear it ? And not that the to maintain right if equally it, abated, not existed from the moment the enactment ? class of A cases that have occurred in the state frequently courts contain ent case.' The to involved those principles analogous pres- internal streams of a State which purely are to the owners to the thread of navigable belong riparian the and, such, as stream, to the use waters right beneath, emolument, bed for their own to private subject only the construct public right may wharves or navigation. They dams canals for the stream to .the the purpose subjecting to various uses which it to this may applied, subject public But, if these easement. structures interfere with the materially the obstruction be removed or abated public right, public as a may nuisance. In to these internal of a respect streams State, the purely o’f is under public navigation exclusively control right state in cases where legislature; these erections or obstructions are constructed under navigation State, law the or sanctioned by legislative authority, they abatement, neither nuisance nor subject is public individual who have sustained from their may special damage interference with the use entitled for his public any remedy loss. So far as the use of the is concerned, stream it, to control and the statute legislature having power regulate the structure, it be a real authorizing though may impediment makes it 448, 449; lawful. 5 Wend. 15 Ib. navigation, 113; 195; 90, 17 20 101; T. R. Ib. 5 Cow. is act void, also that this is for the rea- urgеd congress son that of with it inconsistent between the States compact Virginia at the time the admission of Kentucky, “ latter into the Union, which it was that the use and agreed, Ohio, of the River so far as the pro- territory or the shall posed, that remain within limits of'this territory commonwealth, lies thereon, shall be free and common thé citizens of the States,” United assented compact (cid:127)to at of the admission State. time of the congress This court held, the case of Green et al. 2 Wheat. Biddle, v. 1855.. an act in contravention of Kentucky legislature was null and void, within con- compact the'provision a State stitution law obli- forbidding impairing pass not here. contracts. But that is the question gation question here or not can is, whether compact operate restriction under the constitution to power congress commerce States? .the several not. regulate among Clearly Otherwise States would' two possess congress alter itself. constitution modify This is so it is plain pursue argument unnecessary further. But we refer to case of v. Mason, Wilson Cranch, 88, 92, where was held that this. compact, under commonwealth of Vir- stipulated acquired rights shall be decided the then laws, could ginia according existing deprive appellate juris- n diction of this a review where none was prevent given in is insisted that the act of law at the time of the state existing compact.- Again, void, inconsistent being clause in ninth of article section first consti- tution, which declares' that no be shall preference given by any of commerce or to revenue the of one State over regulation ports of those nor another; shall vessels bound to or from one State enter, be to clear, or duties in another.” obliged pay It is that the the of of the urged steam- interruption boats in commerce and of engaged conveyance passengers upon the Ohio River at the from erection of the the therefrom, delay to expense, arising virtually operate give to this over that of preference that port vessels Pittsburg; to and from the Ohio and Pittsburg navigating Mississippi are not rivers to in only subjected expense delay course of but that obstruction will the'voyage, necessarily the effect to trade and business stop or Wheeling, divert the same some in other direction or channel of commerce. all this to be true, a are of Conceding majority of opin- that the act of ion not inconsistent with clause congress of constitution referred to—in other that is not words, giving to the of one State over those preference ports another, within true of that There are meaning acts provision. many in the exercise of this to congress passed power com- regulate merce, for a to the or providing Special advantage port ports of one State, and which very advantge may oper- incidentally - ate to the of-the State, in prejudice ports neighboring have never been to conflict with this limitation supposed power. improvement harbors, rivers the erection and other be light-houses, commerce, facilities referred may to It will not do to that the exercise examples. say VOL. XVIII. admitted be conferred constitution power congress shown, or withheld, if can be that the effect appears, of the law extend operation limita- incidentally beyond tion of the such Upon power. any interpretation, principal of the framers in instrument object conferring power would be sacrificed subordinate consequences resulting from its exercise. These and incidents are consequences very considerations to be proper of urged upon congress purpose exercise, that from its but afford no dissuading body ground itself, or the exercise it. denying power right The court are ex- also that, true according opinion of this

position in the law prohibition upon power congress, question cannot in it. conflict with regarded (cid:127) The convention, into the introducеd propositions originally from which this clause in the derived, constitution was declared that not have shall vessels congress power compel belong- to citizens or to enter duties ing or or foreigners pay imposts other State that to bound, than were nor to clear any other than in which their laden. any were cargoes Nor shall or vessels any privilege granted immunity any out, one duties entering clearing imposts, paying State in Also, another. shall not have preference to fix or power establish ports particular collecting duties or State, unless the State should imposts neglect to fix them I notice. the substance of give merely several propositions. Luther Martin, in his letter to the legislature Maryland, that these were introduced into the says by convention propositions observes, and that he them, without delegation; Maryland have, it would been ships compel in or Norfolk, out of to clear or enter at sailing or some Chesapeake port would Virginia injurious —a also, from the Maryland. reports appears commerce of the' convention, that several of the from that State delegates that under expressed merce apprehensions favor of congress ports requir- might particular vessels destined other and clear at the ing ports States to. enter ones, as a bound for favored vessel Baltimore .to enter and clear at Norfolk. These several form of the clause took propositions finally “ question, No be shall regula namely: preference given any. tion of commerce revenue to of over or State one those ports of be another; nor vessels to or from State shall bound one s to enter clear or Elliot’ or duties in another.” obliged pay 1 502, 545. 270, 279, 280, 311, 375; 478, 483, Deb. Ib. (cid:127) their. and clearance establish of ports- entry State of the States was and left to' But the given up, congress. rights secured, of the States -were of vessels from the exemption of in the duties necessity entering ports paying any other that than to which or to bound, were obtain a clear- they ance from other than at home that from any port port, And, also, sailed. that no provision prefer- ,be ence should or revenue, commerce given, by any regulation of one State over those of another. -So far as the ports of revenue is concerned, clause prohibition does not seem to have a as, been important, previous very section, it declared, all ex- duties, that (8,) imposts, cises, Statesand, shall uniform the United throughout to a a preference commerce, by regulation history as well as its a provision, looks to language, prohibition against or immunities to vessels granting privileges entering clearing .one, from the State over of another. those That these ports be in' the immunities, whatever privileges ment of they may judg- shall be in all the common congress, equal ports the several States. much Thus is embraced in the undoubtedly and it prohibition; scription also embrace other de- may, certainly, any to a direct legislation preference looking privilege or. ports State over those of another. particular In- any deed,-the clause, in terms, seems to a prohibition import against some effect, to this positive and hot legislation by congress - result advantages might possibly incidental from the other legislation connected congress upon subjects commerce, and within its confessedly power. it Besides, is a mistake to assume that is forbidden' give in one State over a in another. preference port port Such instance it preference where makes given every port' in one make refuses to another port entry, port in another State a No port in one entry. greater preference,

n sense, can more than in this given directly way; yet, such has never been give preference ques- n tioned. Nor can it without moment con- asserting makes a one State a gress bound; at рort .of port entry, time, same to make all other other in all States ports ports The truth seems to be, that is forbidden entry. is, what not discrimination between individual within or-differ- same ports ent States; but discrimination if States; so, between in order this case -the show, within it is bring prohibition, necessary discrimination but between merely Pittsburg Wheeling, discrimination between and those of Penn- ports Virginia sylvania. n Upon whole, without further, examination pursuing our that, conclusion is, so far as de- respects portion cree which directs the alteration or abatement of the , Pennsylvania v. Bridge Co. cannot be carried into execution since the act of which- of the River, Ohio consistent regulates with the existence and continuance of the and that this bridge; part motion, in behalf of the must be denied. plaintiff, But that, so far as of the decree respects which directs portion the costs to be the defendants, the motion must be paid by granted. A motion also has been made, behalf of the plaintiff,

attachments of the against president Bridge Company others, for disobedience of an issued Mr. Justice injunction Grier, in vacation, on the 27th June, 1854. that since the appears rendition the decree of this .court and the of the act of and before congress, proceed- taken to enforce the execution of the ings ing leaving only decree, notwithstand- act, was down, broken in a wind, gale some of the cables from the. towers suspended the river. of this event, bill Upon was happening across filed mentioned and an plaintiff, above application injunction made, was which was defend- granted,-.enjoining ants, their officers and a reconstruction of the agents, against unless in bridge, conformity requirements the pre- vious decree in the case. The object was to injunction work, suspend with- together great expenses it, attending until determination of the this-court question as to the force and of the act of effect execu- congress, respect tion did ‍‌​‌‌​​​‌‌​​​​​‌​‌​‌​​‌‌​‌‌‌​​‌​​​‌​​​‌‌‌​​​‌​‌​​‍not- decree. appear upon defendants notice motion for .the and it was, conse- given injunction, without granted opposition. quently, writ, served, After the it was defendants disobeyed, tfte reconstruction of the proceeding already begun had bridge, before the or service of the issuing process. A is made for motion now attachments persons mentioned for’this disobedience and contempt. A of the court are of inasmuch as we have majority opinion, that the arrived at conclusion act of afforded full defendants to reconstruct authority alteration decree not, abatement could therefore, directing be carried into execution after the enactment of this law,x of, inasmuch as'the attachment for the disobedience granting the, discretion of the question that, under resting all case, should circumstances motion be denied. Some of the also entertain doubts as to the judges regularity of which was. proceedings pursuance injunction issued. WAYNE, GRIER,

Mr. Justice Mr. Justice and Mr. Justice CURTIS, that, are of case the attach-, opinion presented, issue, should and in which I concur. opinión ment contempt The motion for the denied, attachment and the injunction dissolved.

Mr. Justice McLEAN, dissenting. motion was made, A at the for term, last of con- process for not tempt against bridge with company, complying the decree of this court to elevate abate suspension bridge, in draw the over the branch open western bridge Ohio, to so as afford*a safe channel steamboats when the water is too for them to under the high pass suspension bridge; and also for not &c. obeying injunction granted, In- to' this motion the act of opposition 31st of 1852, is set .up, both purports August, legalize bridges. The 6th section of the above act that the provides bridges across the Ohio River at in the of and Wheeling, Virginia, in Ohio, State of on Bridgeport, Island, Zane’s abutting are river, in said declared to be structures, lawful hereby elevation, and held present shall be so of the United States to the and position taken be, law or any thing any laws contrary notwithstanding.” 7th section. “And be it further the said enacted, that bridges toi are'declared of be and are established post-roads of the inails the United States, and that the are authorized to have and Bridge maintain Company their said at their site and elevation; and the bridges present of all officers crews vessels and boats said river navigating the use required of their said boats, vessels thereto, so any pipes as not to chimneys belonging interfere with the elevation and of said construction bridges.” This in the exercise of its functions, the which included all the with judicial of seven of its members, approbation with but one took judges present, exception, jurisdiction made the State of complaint the Wheel- Pennsylvania against which was with ing Bridge Company, its constructed charged having so low as to cause a material obstruction the com- bridge merce Ohio River; and which was especially injurious the State of which had several Pennsylvania, millions expended dollars in construction of lines of from improvement Philadelphia roads, Pittsburg railroads, turnpike —such canals, and slackwater which' more than navigation fifty —over millions’ worth of were property con- annually, transported nection Ohio’River; and that material obstruction the river navigation would injurious to that State, transportation lessening passengers above on the lines. freight After tedious and minute the facts very investigation

37* Stats case, which embraced the engineers, depo- practical reports men, river statements sitions experienced most after also water in the river stages throughout'the year, to the full matter consideration applicable legal principles tribunal, two dis- six of the members only controversy, that the was a the conclusion were brought

senting, at seasons of river, material the' obstruction navigation rendered its and under circumstances year which- and that to the’ complainant, most there importаnt was no action common adequate remedy law., . From the course facts investigation, developed between plied that the seven appeared packets, passenger obstructed Cincinnati and whose Pittsburg, progress value, the' about one half of goods, bridge, conveyed river, three fourths of the which were transported each trans- That packet between the above cities. passengers ported freight, tons of and sixty thousand nine hundred thirty annually and thousand twelve passengers. water, five feet and that a steamboat drawing appeared six could feet inches high, whose were seventy-nine chimneys at- of’the under the of the stage never bridge, apex" pass the court found And water, by without chimneys. lowering the of and the expense machinery, chimneys, including lowering incurred an estimate as "time, of without dangers delay that a tax was the seven the imposed upon packets, by annually, operation, owners, was exacted from the which sum .$5,598.00, the of the crossing public bridge accommodation proprietors. ’’(cid:127)’ the cost of each found that per running The court also packet, esti- cents; as and, hour, dollars- was eight thirty-three shorter, be made so mated, should pass if chimney water, cause at an would under ordinary stage bridge in each of four hours between Cincinnati loss trip average n the sum of which would thirty-three Pittsburg, amount^ cents, which, sixty,, dollars being multiplied -fry thirty-two tó season, each would-amount number of-trips average this, seven, would sum and- $1,999.20; being multiplied-by which", be án loss would annual make the sum of by. $13,994.40, - - . of these owners packets. .. "of from the found, The court also chim- weight great class, other boats could of the neys not be lowered they, of. packets, at could only -tops; they by hinges means a derrick. The hurricane deck let down must be-lowered upon weight chimneys, average and if this enor- tons; four each was about boats,' large mous over the cabin, or rather weight, hanging over the berths in the passeñgers, should come рrocess down break lowering, rün, their would weight crush the deck, hurricane berths of the cabin, and be through arrested, probably, only the lower cargo vessel. flooring reasons, For these and others contained in the opinion came to the court, decision that the obstructed the of the Ohio, and to the irremediable navigation the law of injury But, works to avoid Pennsylvania. any greater on the owners than hardship would be required maintenance of the commercial this court decreed right, that if the defendant would draw in the western open channel which would admit the boats, when, from the passage water, high under could not they remove all reasonable pass that it suspension would ground complaint by plaintiffs. But this it refused to do, invoked the legislation congress of the act successfully, above cited. procuring passage n That constitutional congress merce nations, must among foreign admitted. And where the constitution no restriction imposes on this it is exercised at power, discretion; the correction or abuse, is the ballot-box. impolicy, only through During the existence of the 1808, it was contended embargo, year that, under the commercial could not power, embargo as it commerce. But it was .imposed, held destroyed otherwise; that the so of a of commerce constitutionality does not depend upbn such an policy justice act, but its discretion. generally upon a, An and is embargo regulation, temporary designed of commerce, for a protection time, though, may suspend exercise, are, however, it. There mercial limitations on the of the com- As stated in the power by congress. opinion Riyer. had commerce of the Ohio regulated all such But were before the of the above regulations, act, aof character, and tended to of general the trans- security whether of portation, freight passengers. in the The decree case the result was of a Wheeling bridge founded judicial facts ascertained in the investigation, up.on course of the It was a hearing. question. The judicial strictly was an commerce, obstruction of complaint the of and the court found the fact to injury complainant, be as in It the ‘bill. was said Marshall, Chief Justice alleged that do could but that many, years ago, congress things, many it could a not alter fact. This it has to do in the attempted above act. An of was, obstruction the river navigation technically, nuisance, and, decree, pro- in their this court so , nounced. Pennsylvania, of between de- Kentucky, The Virginia compact Ohio clared, of the River should be that the use and navigation United States,” of the was and common citizens free 1791, and of received into constitution Kentucky incorporated the sanction of that State into the the admission congress held, both and this court bound compact Union. This parties; called it law that violation Kentucky, occupying of the void, as it law, was obligation claimant impaired violate no more than could Kentucky, pact. Virginia, its of the extended citizens Union. although provisions, act of shall have decree The effect congress can be now consider. This treated court, will subject I action of for the respect legislative profoundest only to it all the effect and with a sincere desire to nation, give should have. such expression branches and the court constitute coordinate The congress of a duties distinct and different are the government; nor can the cannot legislate, character. judicial power The has declared, The constitution act judicially. legislative power that shah all cases law and extend to judicial constitution, of the United under the the laws arising equity vested are All treaties, powers &c. legislative are limited to their While these appro- functionaries congress. priate be little or no conflict vested, can juris- duties there diction. it is unfitted From legislative power, organization be said duties; and the sаme may judicial discharge' therefore happen, of this court in regard legislation. trenches either that, appropriate powers when void. other, their acts inoperative cases; the decision exercised judicial power enactment legislative, making general'regulations laws. acts from considerations The latter public policy; From in a case. and evidence former by pleadings not undertake could seen, is at once it view case, in this take testimony hear the complaint.of examiné the taken, reports engi- cause surveys admission which arise neers, of law decide questions the evidence effect testimony, give-the proper legal do this duty To appropriate final'decree. before this is was And what done-by judicial power. held, that the was passed. the above act that, River, the Ohio obstructed act declared nuisance. The consequently, not a it was structure, and, to be a consequently, legal Whether act ? or a is this a Now, judicial nuisance. legislative TEEM, 1855. of'Pennsylvania Wheeling v. Belmont Bridge Co. not, or it be a nuisance fact of obstruction; depends to and this would seem be a judicial to be strictly question, on decided evidence in a case. produced by parties We do not a commercial but speak of an public right, it, done, obstruction which an individual is that at wrong law is irremediable. A public right belongs is It a question seldom, exclusively congress. policy, comes ever, if within the action. All such range judicial questions belong legislative power. words The of the seventh section be the act are, said are declared to are established bridges post-roads of mails of the United and that the States; are Bridge authorized to Company said and maintain their at then- site and bridges, present elevation; and officers and of all crews vessels and boats the river are the use of navigating required said vessels and boats, and of or any pipes chimneys belonging so thereto, as nоt to interfere with the elevation and construc tion of said bridges.” The of this section are: 1. The are de- provisions bridges be

clared to boats are and, post-roads; pipes and-chimneys to be cut required down, so not to interfere with said bridges. And, first, as the effect of making bridges post-roads:— the act of the 7th all railroads are declared to By July, and, be for more than all post-roads; twenty years, navigable on which steamboats waters post-roads. established as regularly ply lines all rail- policy extending post-roads. on roads require, waters was under a all navigable penalty, railroad cars all letters deposit post-offices boats they so It may carry, postage may charged. gives n n except no these lines communication, rights government where the mail a contract, carried under which, may if obstructed, offender to It subjects prosecution. gives no other interest over the control road. government The railroad will may changed proprietors, not be the mail will carried in the cars, contract, except by for which a to The same compensation paid. principle applies road on which the is carried. mail Even an ordi- turnpike road, be altered. vacated at the nary though post-road, will of local authority. difficult to what benefit can result perceive from these use bridges declared It cannot post-road. being same without toll the the use of bridges paying road or railroad. It does not Com- turnpike prevent Bridge down it in bridge from pulling altering any respect. pany under no reason of this use to are obligation by up keep They it. it, or should abandon it repair They may .if bridge the winds, to re- be prostrated by obliged again it.

build a idea that would making bridge post-road exempt a unsus- nuisance, it from the consequence wholly being the contractor to or Should the mail refuse carry tainable. tolls, he would be liable to a suit to pay customary neglect mail amount. If one Pittsburg packеts carry under, a contract post-office department, bridge boat, obstruct the such an obstruction would make should liable, unless a act, the above which gives pref- bridge company mail, a to the mail to the and would different rule erence boat, crossing' applies it seem that no such can arise preference a to be the law under declaring bridge post-road. a a a to over is there bridge But power congress legalize States water jurisdiction within any navigable commerce several among It power has or more States to authorize the two requiring regulation. include the construct does not this necessarily power But obstruct can never commerce, but increase which may bridges on a water. which power its facilities navigable Any indirect, such a structure is results have regard may this declare It under a commercial power, (cid:127)from regulation. may, built be shall be an obstruction shall that no bridge seem, water. is as this, of a And it would the use navigable - be exercised. as the'commercial power by congress far can would enable to build a same power a would authorize to construct rail it over-a stream navigable Union, the been asserted in as it road States of through road turnpike This deem expedient. power may might be, the settled now seems opinion post-roads,'but regard within the constitu that to establish ‍‌​‌‌​​​‌‌​​​​​‌​‌​‌​​‌‌​‌‌‌​​‌​​​‌​​​‌‌‌​​​‌​‌​​‍meaning post-roads In this sense establish them. tion is to congress may designate but can neither build them it. bridges, post-roads extending.over them, use for the control over the mere nor exercise any except v toll. of mail on conveyance paying been, a across held, It has often throwing lake, or the sea, or arm sovereign power river of. navigable under it, form authorize such restric- the State some may considered best for the tions and conditions as be public. so exercised' as not must be materially But power always exercises' to obstruct Over this public riglit congress navigation. it; the constitution restricts exclusive where legislation, except can-never interpose, except regard judicial power «.Wheeling It would be if otherwise injuries. private congress should an indictment authorize of navi- public right obstructing Ohio, on the If, under commercial gation power, congress may generally. make waters, over it bridges navigable difficult to would be find limitation such Turn- any power. roads, railroads, and canals on the same pike be might principle built And if this a constitutional congress. it power, cannot be restricted or interfered with state So federal this has extravagant absorbing rarely, ever, if been claimed would, one. in a by any great degree, the state the tremendous supersede governments by authority and in it would exercise. if But patronage found constitution, no it can principle perceived by restricted. This dilemma leads us the conclusion practically is not a constitutional arrived power. Having remains to that the act point, only say, congress declaring the structure, be the exercise of a legal judi- being cial and an unconstitutional, is and power, conse- appellate It what it abe, reversal of quently inoperative. is purports of this in effect, the decree if not in terms. the Under commercial declare what power, congress may shall constitute an commerce, obstruction of on a navigable so far as water; and the there is concerned, no public right limitation to exercise the it be this unless found in the power, constitution. must be admitted that the in 7th section provision in to the of the length of the boats regard pipes chimneys on the Ohio from and- to is a ply commercial PitNourg, have boilers of steamboats regulation. Congress required be and that an iron chain as should be used a tiller! inspected, steamboats, on all and this has been with a view rope required of the boat, to the In the event safety passengers cargo. of fire the ’burnt, and the boat becomes un- rope generally This is as far as has manageable. legislated, regard tackle of the to the boat. No has before been made to attempt height chimneys. facts above From stated, seven appears speed four, down packets, would reduced by cutting chimney, hours, each, on on a between average, trip Pittsburg This, shows, Cincinnati. statement would increase of the owners of to the' expense the seven in addition packets, of time, loss annum. Such a ¡§13,994.40 would per regulation seem to be more as the loss arises from objectionable, accommodation preference given does not require. But there is another of a more serious nature. In' objection, Belmonlj constitution, it is of the 2d declared the 9th section article “ commerce, shall no preference given, any those of another.” This over or-revenue, one State ports “ as, in the 8th sec- relation to have no duties shall be can imposts,” the United uniform it is declared tion, throughput and it clause to some other The. must refer regulation, States.” commerce. course, to.all affecting regulations applies, case, Pitts- said in the late It was argument had done a business transportation larger burg packets former If within the same time at than period. last year, of all chimneys' down so, injury by cutting from suin than to and must amount larger boats Pittsburg illustrate could more pro- above stated. Nothing forcibly no constitution, that above port provision priety another. have over shall those one State preference steamboat railroad Practical knowledge regard Notwithstand- is better than freight theory. transportation Cincinnati, and to of railroad from lines Pittsburg ing been year Louis, past St. way Chicago, lines has .the business on the steamboat greatly in operation, ,in seem from' would prices increased freight; published is three times than 'the cheaper water transportation cars, on detention railroad, and, account frequent freight more is much expeditiоus. commerce, from local cir- it" is- said But many regulations in- As, all cannot cumstances, ports. operate equally be more to one than beneficial stance, port breakwater may exist same from the establish- another; inequality may of harbors. But improvement ment these the light-houses and not direct consequences, resulting are' incidental can, no prudence exercise power, legislative n be, equal them. As near effectually, guard this, to should be equal importance; facilities however, given ports not decision of and does is a matter for the congress, a is But where prohibition imposed .on judiciary. belong (cid:127) it not is of the commercial in the exercise power, to check is is a only it question, regarded, be judicial such unconstitutional relied on legislation. . cannot what degree is court that-the objected determine to another, make to one over shall be port preference given so, If this be then come within the prohibition. regulation, letter; dead but this is not a the- constitutional prohibition of' the taken court uniformly powers view" which practical constitution. The restrictions (cid:127) state stand upon been has found in no same difficulty insuperable footing, effect to giving .them. .445 "Wheeling and-Belmont “ emit bills make credit; No State shall coin money; any and silver coin a tender in but debts; gold payments thing law, ex attainder, post bill law any impairing pass facto of contracts.” To determine the unconstitu- obligation would, a law under some of these be prohibitions tionality much, more, if -not attended with than difficulty say a commercial a one whether regulation gives preference port over another. the case of v. The State of In McCulloch Wheat. Maryland, ‘ 431, the court to tax the Bank of the say, United States’ involves and on this destroy,” the tax on the bank legislature ground Maryland be and void. declared to unconstitutional If this rule be applied consideration, no under doubt could exist. point Congress one over another prohibited preference giving port in different if such consequently, any preference is void. Not an incidental but regulation given, preference, acts regulation necessarily injuriously oppressively on one the exclusion other ports. declared had law all Suppose congress steamboats to and from should not use more plying Pittsburg chimneys feet than which .would retard their forty high, essentially pro- business, would gress, hesitate consequently injure any such a unconstitutional, as pronounce regulation to all other on the river over that preference giving ports This has in done, effect Pittsburg. justi- only for it must be found, fication if exist, in any regulated height But the at a small bridge. bridge, very expense could have been elevated our decree paratively, required, as the charter under which it was built also Less required. if a draw than this: had made in the been over the so channel, as to enable boats to western and down the pass up could river when under the pass suspension bridge, of more was draw, required. it -is nothing expense believedj would not exceed thousand dollars—a sum twenty-five seem, less, as would than the annual inflicted on the injury commerce Pittsburg bridge. If the steamboats, as law chimneys would unconstitutional protect .to without bridge, it is not how the could perceived make consti- bridge, tutional. cross the river and to navi- right it, but these admitted; are not gate rights incompatible. both can material without interference of They enjoyed one with the other. the case, This it would being congress, seem, cannot restrict the river bene- right navigate fit It cannot violate the constitutional bridge. inhibition VOL. XVIII. . 'SUPREME

446 to other over that a ports Pittsburg, by- in preference giving obstruction formed no to bridge naviga- declaring a declares shall not constitution pref- The congress give tion. if act, done, over is another; to one part erence constitutional, to done under com- regulate though power merce. to a intended secure which such was The equality regulation the commercial connected with a matter prosperity is intimately a done there is For thus wrong country. exercise of judicial through power. no except remedy, constitution, and in in- to is sworn support every court This state that instrument legislatures, fraction be obtained inflicted, is redress individual may where injury a on is duty in laying court. action Congress prohibited ' Can a imposed duty except port charges. exports, The under the commercial ? this power exports beyond in cases,'and in this and other if the is limited mercial power The in act is void. federal government limit be exceeded But if and limited powers. exercises enumerated . all forms there is discretion the limitation depends upon congress, This nor limitation nor is neither theory neither protection. has Congress operation government.- practical no commerce, but has such to regulation State over another one port to port a. give preference extent an in- materially State. If it do this different in the. other restriction equally disregard every jurious, may constitution. chimneys regulation height steamboats which and from Pittsburg, present ply and in is the same in effect principle elevation of cut their chim- down if the act had such steamers required nq affords without reference to the bridge. neys or excuse for unconstitutional regulation. justification fact, is But it said there ascertaining great difficulty or more in a á one ports gives preference another, it is intimated those of State over jury was used the fact. This argument should' called ascertain obstruction, fact by Pennsyl- complained regard a court determined ; vania but this court properly very whether could inquire jurisdiction, chancery, having to commerce materially constituted such an obstruction on such a finding works of Pennsylvania, injure removal decree entered for late obstruction. fact of to .determine fact What necessary beyond over another? The chimneys of one port preference are required to and from steamboats which Pittsburg ply of Wheeling Bridge v. Co. Be.lmont down, so cut as to under this the of' pass bridge; By rights are measured port Pittsburg by Wheeling bridge, and that this held, court have is so material an ob- bridge, struction to commerce as a to be nuisance to the State of Penn- sylvania. This obstruction or nuisance consists in the when necessity, a boat under the its passes bridge, lowering chimneys down, them so toas under and if this a cutting it; pass be. material on its to the commerce of the State injury Pennsylvania, lines of how much to the improvement, greater injury from and to which one port hundred millions’ Pittsburg, worth to see that the is ? one transported Can fail property annually to the proof preference and' port Wheeling, it, is those below the of, given over by. complained regulation (cid:127) and others port above the ? The Pittsburg proof fact, of this as found the decision of the important is more conclusive to show the pronounced, already preference establish the than to claim of Pennsylvania. it be Can to mere urged limited a preference entry Had the port? been constructed over Wheeling bridge River, the Ohio a short distance would below it have Pittsburg, been far less to that injurious is; boats, than now port with their undiminished, could have propelling power ap- near to that proached and their where port, cargoes discharged received. It is contended that the commerce across the river required the consideration that which floated congress equally of. its surface. There is no for such an ground argument.. Some dollars, under the decree, thousand twenty-five thirty remove, would a in the channel so as to open western the obstruction. The annual to the commerce of the injury is believed to exceed port that sum. Pittsburg the act of all steamboats which congress required Had ply the Ohio River to cut upon under the so as down pass chimneys, how- Wheeling bridge, being regulation, general, ever would not one injuriоus, given port preference "ver another. cial It would have been exercise of the commer- within power, constitution. The involved in this case is of the interest principle deepest to tributaries commerce of the West. and its River Mississippi water if country equalled, unsurpassed, world, extent and if But obstruction fertility. Wheeling wherever the bridge may repeated crossing shall think proper to build a one third internal commerce of the Union will be obstructed. materially such injury would be in the Atlantic limited very Ponnsy)vama short, as there rivers are generally- ebb and If to'the flow tide.

limited Wheeling bridge the same structure, hundreds of be a legal bridges principle tributaries, over the be thrown Mississippi navigable commerce. remediless of western injury great time it commerce is and at this prob- That rapidly increasing, to four hundred millions of dollars amounts annually; ably if the same of Waters his tributaries shall have the Father extended to them as is now applied regulation bridge, of several western commerce tax impose will be, not for the dollars will hundred thousand annually; as it waters, will commerce' over those greatly advancement in the structure but to dollars it, save a few thousand obstruct of each bridge. to the motion for In process contempt regard matters be must, think, we I governed company, bridge which was the decree after first the record. Shortly appear upon for re- made entered, defendants congress the application this applica- of the making The company lief. object of this court. It the decision and annul tion, was to counteract intention of con- the however, that such was is not supposed, referred were The two sections law. passing gress moved for act to an making appropriations as an amendment 31st on the of August, service of department, post-office time afforded little was Sut at the of that session. 1852, close in the act. involved of the questions for important investigation act, of the and effect stated to force fact is not impair This motion, in it is fit to be considered regard I think but the conduct of the company. bound to do not if consider, court they The may properly defendants, congress, that the so, application making acted in act, of the good having procuring in violation if it has been held law, passed And faith. although it save the de- valid, be constitution, may cannot yet it to the face, itsOn gave from the contempt charged. fendants decree or ask could desire against all that bridge company held to be. the court illegal; what this court. legalized from to and steamboats, Pittsburg, all running it required so toas their chimneys to regulate below Wheeling, any point of a the exercise judicial power It was under bridge. pass without of law applicable, of the an examination principles was decree facts on which without knowledge but that honorable body, is cast No founded. the fact imputation and house senate one must known be every for then' high ability however distinguished of representatives, not public advantage, could discharge, and legal learning, court. of an the duties appellate Co.. that the learned had have no doubt I judge grant 5th section of the act of the 2d of March, injunction. Stats, at declares that writs of tie exeat (1 Large, 334,) be granted injunction may by any judge supreme' court, in cases where granted by might supremé court.” The 14th circuit section act of 1789 judiciary “ the declares that courts the United States shall have power of scire and all corpus, to issue writs habeas other writs facias, statute, for not which' provided specially necessary exercise of their for the respective jurisdictions, agreeable law.” principles usages hold that brethren now the act of Six arrested my congress of the court in their decree into effect, carrying progress to rebuild their the defendants right bridge. injunc- gave them from it; tion can defendants prohibited reconstructing for law author- contempt, doing punished that the ized? This view shows not to have injunction ought as it law. And been was sufficient granted, ? is, view that contempt excuse was charged My Jaw void, and I consider it as unconstitutional yet excusing I cannot defendants’ fine defendants, contempt.. punish that which the law authorized them imprisonment, to do. doing made when the There was no was opposition injunction ap- as a course, and it matter of on the for; face granted, plied bill. Had the act been set up against motion, allowance all would injunction, probability, been referred to the supreme judge. conclusion, stated, come to the for the reasons above Having and void,

that the act of inoperative although may, it can afford no excuse for a further refusal contempt, excuse the decree. I would, therefore, order that the final perform made, heretofore’ decree, carried into effect to its according intent, true first next, October that by de- day the costs. fendants pay Mr. Justice GRIER. cases, I concur .with that this in majority where court (cid:127)this has Jurisdiction, original prelimi- interlocutory in awarded, vacation, injunction may nary by any judge court. I differ with majority punish declining wanton of the court. contempt process I with brother McLean, concur that cannot an- my . congress nul or vacate decree of court; any .of assumption such a and, without a' as, for the power precedent, precedent ' n future, it is of dangerous example.

38* Pennsylvania v. Wheeling

Mr. Justice "WAYNE. I with concur Mr. Curtis, Justices' Nelson, Grier, in think- that the attachment for ing should have been cDntempt granted this court. I concur with the of the court in the view taken majority them the of the defendants for the costs of this liability suit. I dissent from the of the court in the majority opinion given, the 6th and 7th- sections of the act of the 31st August, Stats, 1852, relieve (10 defendants from 112,) the. Large, operation this court behalf of the judgment plain- tiff. That was for the abatement of a judgment nuisance of which plaintiff court decided it This was a complained. nuisance, loss, inasmuch causing injury great pecuniary the State of prevented Ohio navigating River at all of its waters, to the stages uninterrupted navigation of which had a under the constitution of the United right States.- I know of no to interfere with such power congress a ture of under the of a judgment, struc- power pretence legalize over the rivers of bridges United public navigable States, either States, within the States from each dividing other, or under the commercial power congress commerce the States. Nor does among congress to establish post-offices post-roads give con- to more the States, do between or within the than gress. to declare the routes the mails roads upon carrying already and to those roads localities where existing, designate shall be and transmission kept post-offices, delivery other letters, and parcels declare things congress may be mailable. Whatever have intended not think admits of the act of tion I do interpreta- August, to it court; does, and if it then given by majority is that the act would be unconstitutional. opinion my I concur views taken Mr. Justice McLean many but I take his shall another in to dissenting opinion; opportunity action this court and of my opinion express fully case.

Mr. Justice DANIEL. In the decision court re- dissolving injunction the coercive measures in this I case, asked -for fusing entirely as, concur. But have argument pro- conclusions, ceeded to of constitutional important questions them, law me to some of over with- been, appear passed out consideration, others convic- inaccurately expounded, tions of me to .own duty express my interpretation impel those or incorrectness inter- correctness questions. Pennsylvania v. Bridge and Belmont Co. is left to the of those whom or pretation judgment curiosity interest incline to its ; examination but whether examined, condemned, otherwise, it has been be- approved, given cause commanded a sense of from obedience to by obligаtion, I hold that no one is or can be absolved. When the now revived before us inwas, controversy January, 1850, for the first time attention, to our there brought suggested themselves mind serious difficulties my both to respect the that and the mode which it was authority by attempted place within of this tribunal. controversy cognizance I was unable to what warrant a of a perceive circuit by judge court, circumscribed in his both as to jurisdiction parties within limits, subjects-matter cognizance litigation could claim specified as to parties subjects-matter confessedly beyond bounds of his Still less could I prescribed jurisdiction. what warrant a circuit prehend could, by interlocu- judge by order at chambers, relative to tory beyond rights person property the bounds of his transfer jurisdiction, controversy thus situated to the court affecting subjects .United supreme States. A.n to avoid these attempt difficulties not were di (for they was recuy met) essayed, by assumption application to the circuit court here, as the might commencement adopted of an suit the State of original Pennsylvania, pos to institute an action in the sessing der the court,-un right supreme in the constitution provision which defines the original of that court. this case jurisdiction, received Accordingly, and treated as one authorized the constitution, in virtue of vested original jurisdiction exclusively supreme —a which an inferior jurisdiction court, or a of an infe judge rior couid have no to exert. However and unauthorized the first irregular proceeding to me, the appeared second granting .case injunction, the measures directed for it, I am constrained to enforcing as still more much wider regard irregular, departure —a or legitimate precedent authority. This second to our notice the proceeding brings following state of facts: An to a circuit application chambers, judge n tocontrol process compulsory both of persons property, them situated and without the bounds of his beyond legitimate This рower. chambers, and application granted in court at all; order proceeding so made, the judge and the mandate directed him the execution his singly order, are entitled as in- before proceeding supreme court, and as an act of the supreme court; peculiar officer of this appropriate tribunal is ordered to that man- cany date into effect-. State of of the constitution of According interpretation my the the States, court is a distinct, United collec- supreme aggregate, which act tive can and term or in body collectively, —one session It functions, united cannot its nor can it only. delegate its duties number of the less than a upon any quo- impose rum, body constituted of a of its members. Much less can majority be clothed its with to be wielded single judge joint powers, or in him at time or to ‍‌​‌‌​​​‌‌​​​​​‌​‌​‌​​‌‌​‌‌‌​​‌​​​‌​​​‌‌‌​​​‌​‌​​‍extent to which his any any place, any n ipYet, discretion the us, individual case before we may point. and consummated in begun, prosecuted, the proceeding the denominated their name of act supreme nay, proper court— of the nine when no tribunal had eight judges constituting never even suspected participation existence. proceeding, perhaps be well whether inquired may very majoiity either or of in court, judges, acting individually collectively of or of

would, have sanctioned the principles power justice, one, in this case ? For I can answer that coursé him pursued have been it would rejected. unhesitatingly it is Yet this course now sustain, attempted justify of the 2d of of March,' under the 5th section 1793, the act of “ Stats. which that writs oí Large, 334,) provides (1 of exeat the su injunction may 'granted by any judge in cases court where might preme court or a circuit granted by supreme court.” to be drawn from the The inference sought provision just view, examine, of cited, I cursorily propose showing as a deduction from the or the its incorrectness language pur- with the of of view provision, especially posеs exposing conclusion to the total the facts inapplicability attempted n the record us. before developed by embraced The subjects proposed inquiry, namely, within exercise in the different the distribution divisions power definition and the federal establishment of the judiciary —the those several boundaries which divisions distinctive should within much too of an to be are matters in- revolve, importance grave of. are matters or disposed They inseparable cidentally alike lightly the order author- harmony stability and from the enjoyment right. safety private ity, act of courts of congress establishing the-judicial By Stats, no was conferred United Large, power (1 81,) United States of the courts the judges grant upon nor writs tion eo 'nomine power grant injunc- injunction; of the courts. This conferred author- upon any courts, as to however, was, by implication’ given ity authorized the courts therein be- statute, 14th section enumerated, corpus, scire habeas facias, grant-writs fore not statute, other writs all specially provided for-by exercise of their be necessary respective jurisdictions. feature of this for consideration here provision was conferred proper courts, this; and was in cases in which it was judges, given only exercise jurisdiction those necessary What was courts. courts, as to circuit jurisdiction persons or ? rem, both With as the proceedings property, respect of the court could not run limits process beyond prescribed of its could district, appropriate jurisdiction limits, coextensive with those and was conse only and null as to control direct sub quently, impotent matter when situated them. And with ject beyond respect over find we it declared jurisdiction persons parties, act, the 11th section that no civil suit shall be judiciary before courts, either of the said brought inhabitant United States, in other district than that whereof he any inhabitant, or is an in he shall be found at which the time of ”writ; and so careful have been the authors this serving to insure observance, restriction its effectual that in same of the section statute transfer of they prohibited every or interests made with the view of rights parties its evading An 11th section of the operation. interpretation judici act—one conclusive of the circuit courts ary jurisdiction been declared in court, —has decisions this repeated may. other be seen instances which be amongst adduced, in might of M’Micken v. Webb, the cases 11 Pet. 36 of ; Toland v. Sprague, 300; and 12 Pet. p. v. Farmers and Mechanics’ Keary In Bank Pet. the second of cases Memphis, p. ' cited, the effect of the statute defining just jurisdiction much, with of the circuit courts is examined minuteness and particularity. then, follows, both from the induction, lan- by necessary of the and act from the thereof judiciary interpretation guage court, which, and this as a jurisdiction auxiliary —as exercise, injunctions means was conferred enforcing power grant circuit courts —is re- jurisdiction and stricted to found within persons prescribed local property bounds those assigned courts. itBut has been the restrictions whilst above men- argued, tioned courts as such, imposed upon most and solemn deliberate exercise functions, of their in- judges out of and court, distinguished dividually, they courts, of the law have been released from language the same restraints, or similar and have been clothed with power to exert this over separately jurisdiction persons extraordinary States and Belmont Bridge Co. n and or situated property residing anywhere everywhere within the United States. to more is required, Nothing according the fixed argument, overstep designated boundary authority jiibeo of the courts’ than sic the individual judge. In considering now the 5th interpretation sec- placed upon tion of the act of March 2, 1793, the mind is with impressed which this irregularity im- inconsistency interpretation ; with the plies beneficial inutility it inefficiency object, is said to have created. It is certainly and an novelty, officer in a anomaly jurisprudence, allege judicial out of court, and acting pais, as it were in the existence of a jurisdiction over persons respect wdiich property he has no and his acts in adjudicate relation to which he no possesses reverse or or even to authority modify revise. Yet this is the attitude which-the circuit precisely courts of those courts are made to judges relation to occupy each other, now interpretation attempted. In the next so far as or place, usefulness efficiency may to have been the supposed are taken statute, much of objects these to the courts the away by denying power claimed out of court to act judges upon persons property beyond the bounds of the circuits. The same respective necessity would dictate a one, resort to a resort to requiring equally both or either. Some obscurity felt as difficulty perceived arising from that mits the of 5 portion 2,1793, act of March § per- of the circuit courts to judges injunctions grant cases wherein might court; but granted by supreme it is when understood, language change, thought, no correctly operates extension, enlargement powers jurisdic- tion of the courts, circuit ofor of those courts. If judges indeed it should be contended that this section of the statute to or confer, its terms designed to purported confer upon the circuit courts, or thereof, the upon judges jurisdiction and functions of the court, then, section, must that supreme so far at be least, rejected void, in violation of absolutely being the constitution. court of the United States is the supreme creature of the constitution. this instrument By powers jurisdiction original conferred and appellate, defined; these are and exclusive, peculiar no be can en- legislation they or diminished, much less can either larged whole they be other to tribunals or part, delegated officers of any grade description. I am clearly therefore, that opinion 5th section 1855. "Wheeling no the act to exercise 1793, to-ther power jurisdiction authority court was, or could have supreme been, con- appertaining the circuit either courts or ferred upon thereof; judges but that this section must understood as conferring simply a confined to the courts alone judges upon —namely, previously to and this grant injunctions, subject limitation which the circuit courts were controlled. every But the of the act 1793 now for, contended interpretation as it' is, broad still not wide cover the enough proceeding it is now used to shield and To this protect. accomplish end, it must be stretched still more; until it can made to an a identification of comprise single judge supreme itself, the entire court with an individual transformation anof act by act without the performed accustomed judge —an of a formalities court—into regular proceeding by supreme in the court functions. exercise of its constitutional and legitimate only The order the second" case, were it granting injunction obnoxious no other to me objection, appears unwar- void, ranted and for reason that it assumes to contravene effect, and overrule in if in terms, an decree of this existing court, between these same the same parties subject- matter. The decree of this first court, pronounced February, decided that the anwas obstrue-' suspension bridge Wheeling tion to the steamboats River, on the Ohio and that passage unless it should be elevated to the one hundred and height feet above eleven low-water before mark, the 1st of Febru day next this decree, it should be abated. ary following Upon term, same the decree was so modified as subsequent day to substitute requirement elevation, increased or of the abatement, alternative permission proprietors to construct in the wooden suspension bridge permanent the western channel river, of a spans draw capac sufficient of steamboats class; largest ity additional distance or the short minutes fеw delay (of only) incident to this arrangement constituting, expressed “ of this no to commerce.” language appreciable injury was reserved this decree to either move the Liberty party court in relation this matter on the 1st Monday February 13 How. ensuing.” Vide In obedience a to notice from the under the lib- complainant, reserved in the defendants erty decree, regu- appeared lar return but court; counsel in day by complainant failing to be prosecute motion, it was discontinued. permitted aTo second notice the defendants but again appeared, Wheeling Bridge v. Belmont Co. Pennsylvania default, called,

the the motion was was complainant again formally making dismissed. those this failure or refusal who From on the were part to move court, authorized in the this for could case, aught, them, known to have been judicially justified might conclusion, that ordered been had had complied every thing they with, or had been to the mutual satisfaction arranged (cid:127) to there no fact this was parties. Certainly up period, regularly them, before to found or which process formally justify Under this state*of things, suspension bridge contempt. remained, to remain. authorized was conditions, This court had to which according prescribed to stand or to be abated, was and had parties designated whom, which, extent to which, modes by by decree be carried into effect. might (cid:127) case, In this attitude of the a mandate is issued from a judge this court chambers, mode out by superseding pointed con- decree, the execution of its irrespective wholly been, dition that decree had own which according terms, modified, as above mentioned. order, The above mandate assumes the name of this an court, that no elevation less than that prescribed order, shall be across the Ohio from Zane’s Island thrown however com- to Wheeling, regardless altogether any facility, of steamboats which plete, might provided western channel of the river. therefore, This mandate a itself violation palpable court, decree of this and of reserved to the defendants rights twice evinced readiness to that vindicate before rights decree— reiterated, to the but court, opposition to assail abandoned the complainant subsequently attempts by them. with, Can reference then, be affirmed or contempt, imputed readiness to obedience yield regular authority' court, or an with reference to unwillingness comply itself, but one also manifest void in merely proceeding violation (cid:127) ? constitution and the law bound to con- asked, To which it the defendants were announced of this form deliberately authority court, or to an before them a order question regularly assum- former, in contravention single judge, obviously exercise the court an only ing authority belonging this court placed assumption body, aggregate decree 1 attitude in an its own adversary case, which, mind, is still of this There another view my of the circuit on the conclusive part proceedings before so motion now urged against every judge, equally or -thereon, or on either the modified founded us as principal in this cause. heretofore pronounced decree the for the second injunction, application Previously enactment, United a formal of the statutory by congress declared been erected over' the Ohio at which had bridges in the State of Ohio, in and at Bridgeport Virginia, "Wheeling (cid:127) Island, on Zane’s to be lawful structures their abutting “ law or laws elevation, position any any present of the United States to the thing And notwithstanding.” contrary vessels enacted, that the officers and crews of all further they river, the said are and to and boats required regulate navigating or boats, vessels ush of their said any pipes, chimney, thereto, so as not to interfere with the or elevation belonging chimneys and structure of the said 10 Vide Stats. bridges.” at Large, enactments, effect of these it has very explicit Against because, are it is rе- void, said, that been contended .as they they this has no court, decision of verse a to .power congress that answer to this it In conceded do. argument, may assumed it true with reference ad- by might position or vested under private justment security rights but such previously or laws position adjudications; wholly existing to measures of public inapplicable policy falling appropriately and much less have within the competency, can legislative other influence to warrant of the department any govern- any the exercise of vested ment in the national powers exclusively legislature. read either the It is or modified impossible original in this cause, of the court decrees, without decree, by majority per- both these as well as the that entire argument ceiving them, were based upon in the erection single support assumption at an inter- suspension bridge Wheeling with commerce vested in ference regulate right congress constitution. It is from the manifest; equally arguments court, con- minority right opinions commerce is not conceded by gress only minority, to. but the exclusiveness insisted that-power upon. maintain later the doctrine alone These opinions this are to exercise or and can neither right power, competent be controlled nor anticipated respect judicial fancied nor upon department, necessity, upon supposed any any im- omission, which the latter neglect, pute incompetency, may called congress, imagine judicial department upon remedy. these In are views seen essentially, nay explicitly, diversity von. xviii. existing opinions minority majority as declared in this case. judges, have, to, statute referred undertaken Congress already the commerce River, Ohio so far as mat- regulate ters involved in this are concerned. And who controversy shall their to do ? this Does it this question belong under constitution, article or clause of the or of any statute,

to assume such ? have ordained that superiority Congress the vehicles of the Ohio, steamboats, commerce on shall so graduate height interfere with chimneys, (cid:127) at date of the bridges statute. Wheeling, existing have least declared that these By deemed bridges them no invasion either of con- policy with reference to the commerce of the River. gress Ohio They matter a scale regulated them conceived to be and with reference to that commerce just impartial, river, course and to traverses pursues channel, and is diffused broadly through country. have same done, at the time what have secured They by they and to the the essential ad- government, large; of a safe and certain transit over Ohio—an vantage advan- which, to the erection of the tage was previously desired Wheeling bridge, but never attained. greatly In what been done I can have has no doubt that by congress, have acted and within their constitu- wisely, they tional justly, strictly their action over- competency. By completely foundation thrown which the decrees upon court, of this every the orders of the circuit and motion judge, every purporting them, am, or either of rest. based these could I there- upon and motion fore, the that each submitted opinion every by under color of heretofore complainant decrees pronounced cause, in this awarded injunction overruled; by judge court, circuit as aforesaid should awarded injunction dissolved, should be and the bill for that praying be dismissed; should and each instance the injunction should defendants decreed their costs.

Order —in the case. original term, wit, 1852, This court at a on 27th prior May, having declared that the was an obstruction respondents that it River, Ohio did a navigation special decreed that the same damage complainant, having should, be directed, altered or removed the respon- thereby by moved dents, this complainant having subsequently assistance, court for writs of and of attach- sequestration taxation ment said also against respondents, of this court, the costs decreed this and for the by process to enforce the thereof the said and the on the payment respondents, by of the United States an act congress 31st having by passed 1852, entitled An act August, making appropriations for the service the fiscal Post-Office Department, during 30th 1853, and for other June, year ending purposes,” of the Ohio River, so provided navigation regulated river as to be said consistent with the maintenance of the said And the bridge. counsel, parties respective been heard deliberation having and after mature fully by had this it is and de- here considered thereupon now by creed this court that the assistance, said by motion writs 'attachment, sequestration, be and the same is over- hereby ruled, and that the said writs be denied. and they hereby And it is further considered and decreed court that by.the said do have and recover from the said complainant respondents the costs of the said as decreed this court on the complainant aforesaid 27th to be the clerk, taxed day .May, a. d. and' that the said do the same to the com- respondents pay within date; that, in default plainant ninety days of such that execution do issue therefor to be directed payment, marshal of the United States for the District of Columbia to enforce the same.

Order —ivith respect to the bill Mr. Justice Grier and filed before his issued order. injunction cause This came on to be heard bill of upon complaint, order an Honorable an associate Grier, R. C. justice court, on June, 1854, 26th injunction day granting for in the said the motion bill, prayed for writs of assistance, of sequestration, attach- plainant ment said motion respondent, ‘by to dissolve the said and was respondent injunction, fully argued counsel both sides; whereof, consideration mature after deliberation had, it is now here ordered thereupon decreed this court the said that ‍‌​‌‌​​​‌‌​​​​​‌​‌​‌​​‌‌​‌‌‌​​‌​​​‌​​​‌‌‌​​​‌​‌​​‍the said motion for writs of and of assistance, of attach- sequestration, plainant ment, be and the same overruled, the said hereby so aforesaid be and the same is injunction, granted, hereby dissolved.

Case Details

Case Name: Pennsylvania v. Wheeling & Belmont Bridge Co.

Court Name: Supreme Court of the United States

Date Published: Apr 21, 1856

Citation: 59 U.S. 421

Court Abbreviation: SCOTUS