Pennsylvania v. Wheeling and Belmont Bridge Company (54 U.S. 518)

THIS was a case upon the equity side of this court, in the exercise of original jurisdiction.

It is noticed in 9 Howard, 647, and again in 11 Howard, 528.

In 9 Howard, a statement is given of the contents of the bill and answer, and of the proceedings in the case, up to the time of its reference to a commissioner, for the purpose of taking further proofs upon the points therein stated. The reader is referred to that volume for these proceedings.

In that report it is mentioned that a notice of the arguments of counsel was deferred until the final decision of the case.

That final decision having taken place at this term, it is proper now to note as briefly as possible the grounds assumed by the respective counsel.

The points made and authorities cited by the counsel for the plaintiff, were the following, viz.

1. That the Ohio River is a public highway of commerce, which, under the Constitution of the United States, has been regulated by Congress. Journal of Congress, vol. 4, 637, 638; Ordinance of 1787, art. 4; Act of Congress admitting Kentucky, (1 Stat. at Large, 189); Virginia act of Assembly, 18 Dec. 1789, (Rev. Code, 1819, 57); Acts of Congress for enrolling and licensing ships or vessels to be employed in the coasting trade, and for regulating the same, (1 Stat. at Large, 305); Act of Congress authorizing duties to be paid at ports on the Ohio, (4 Stat. at Large, 480); Act of Congress to improve the navigation of the Ohio River, (4 Stat. at Large, 32); Acts of Congress providing for inspection, &c., of steamborats, (5 Stat. at Large, 304); Committee Report No. 672, in the House of Representatives, 24th Congress; Report No. 993, 25th Congress, on a bridge at Wheeling; Report No. 79, 28th Congress, 1st session on a bridge at Wheeling; Pennsylvania Resolutions, vol. 29, (Pa. Laws, 487,) on a bridge at Wheeling; Pennsylvania Resolutions, Vol. 31, (Pa. Laws, 591,) on the Wheeling Bridge; 42 Ohio Laws, 269; Green v. Biddle, 8 Wheat, 1; Gordon's Digest 15, 27, 176, 191, 325, 343, 428; 2 Madison Papers, 599, 602, 606, 614, 623, 627, 677; Resolutions of General Assembly of Virginia, November, 1786; Resolution offered by delegates from North Carolina, in Congress, September, 1788, relative to the navigation of the Mississippi, (Journal of Congress, 1788); Resolution of Congress, on the same subject, September, 1788, (Journal of Congress, 1788); 2 Madison Papers, 678; Act providing for sale of Public Land, (1 Stat. at Large, 464, sect. 6); Lyman's American Diplomacy, 300, 303, 310, 311, 315; Report on Commerce and Navigation, December 31, 1849.

2. That free navigation of the Ohio River, as a common highway, having been established by regulations of Congress, and by compact between the States, it cannot lawfully be obstructed by force of any State authority or legislation. Constitution of the United States, art. 1, sect. 8, clauses 2, 4, 17; sect. 9, clause 5 sec. 10, clause 2; art. 6, 1st clause; Gibbons v. Ogden, 9 Wheat. 1; Brown v. State of Maryland, 12 Wheaton, 419; Wilson v. Blackbird Creek Marsh Co. 2 Peters, 245; Charles River Bridge v. Warren Bridge, 11 Peters, 540, 542, 604; Norris v. Boston, 7 Howard's United States Rep. 283; Groves v. Slaughter, 15 Peters, 506; Houston v. Moore, 5 Wheaton, 22; Worcester v. Georgia, 6 Peters, 515; Spooner v. McConnell, 1 McLean's Rep. 359; United States v. New Bedford Bridge, 1 Woodb. & Minot, 401, and authorities there cited; Corfield v. Coryell, 4 Wash. C. C. 379; Holmes v. Jennison, 14 Pet. 540; Livingston v. North R. S. B. Co. 3 Cow. 713.

3. That inasmuch as the Wheeling Bridge has been found by the commissioner's report to be an obstruction to the free navigation of the Ohio River, it is a public nuisance that may be abated by a court of equity on complaint of an injured party. Hargrave's Tract, De Jure Maris, 9, 22, 35, 87; 3 Thomas's Co. Lit. 4; 2 Story's Equity, sects. 920, 921, 924; Eden on Injunctions, 157, 158, 160, 161, 222, 228; Drewry on Injunctions, 237, 240, 249, 294; City of Georgetown v. Alexandria Canal Co. 12 Peters, 91; Blakemore v. Glamorganshire Canal Co. 1 Myl. & Keen, 164; 1 McLean, 359; 3 McLean, 226; 1 Woodbury & Minot, 401; Shelford on Railways, 428, 445, and cases there cited; Robinson v. Lord Byron, 1 Bro. C. C. 588; Lane v. Newdigate, 10 Vesey, 192; Spencer v. London and Birmingham Railway Co. 1 Railway Co. 170; Attorney-General v. Manchester Railway, 1 Railway C. 436; North of England Railway v. Clarence Railway, 1 Coll C. C. 521; Angell on Watercourses, 201, 208, 209, 213; Attorney-General v. Burridge, 10 Price, 350; Attorney-General v. Parmeter, Id. 378; Attorney-General v. Johnson, 2 Wils. Ch. R. 87; Attorney-General v. Forbes, 2 Myl. & Craig, 123; Attorney-General v. The Cohoes Co. 6 Paige, Ch. 133; Spencer v. The Railway Co. 8 Simons, 193; Corning v. Lowerre, 6 Johns. Ch. 439; Boston Water Power Co. v. Boston & W. Railroad, 16 Pick. 525; Barrow v. Richards, 8 Paige, Ch. 351; Livingston v. Mayor of N. York, 8 Wend. 99; Bush v. Warren, Prec. Ch. 530; 2 Story's Equity, p. 252; 2 Ans. 603; 2 Starkie's Rep. 448; United States Const. art. 3, sect. 1, 2; Walford on Railways, 408; Shelford on Railways, 430; 1 Railway Cases, 68, 576; 2 Railway Cases, 380; 2 Younge & Coll. 611; Attorney-General v. utica Ins. Co. 2 Johns. Ch. Rep. 379; 1 Baldwin, 205; 1 Swanston, 250; 1 Mylne & Keen, 164; 3 Howard's United States Rep. 229; Pennsylvania v. Wheeling Bridge, before Judge Grier, Pamphlet Reports.

4. That for an injury to a State, she may maintain a suit in a court of competent jurisdiction. King of France v. Morris, 3 Yeates, 251; King of Spain v. Oliver, Peters C. C. R. 276; Nabob of The Carnatic v. East India Co. 1 Ves. Jr. 382; Don Diego v. Jolyfe, Hobart, 86; Colombian Government v. Rothschild, 1 Sim. 94; Duke of Brunswick v. King of Hanover, 6 Beav. 1; Story's Equity Pl. sect. 55; Rhode Island v. Massachusetts, 12 Pet. 720; 4 How. 592; Vattel, book 3, chap. 6, sects. 22, 23, 49, 50, 60, 65, 71; Wheaton's International Law, 81, 82; Lieber's Political Ethics, 2, 5, 48, book 2, 196; Whewell's Elements, 2, 5, 849; Mayor of New Orleans v. The United States, 10 Peters, 672; New Jersey v. Wilson, 7 Cranch, 164; United States Constitution, art. 3.

5. That the equitable powers of the Supreme Court of the United States are adequate to grant relief against a public nuisance, and where a State is a party to the suit, that court has original jurisdiction. United States Const. art. 3, sects. 1, 2; City of Georgetown v. Alexandria Canal, 12 Peters, 91; Story's Commentaries, 570; Federalist, No. 80; Osborn v. Bank of United States, 9 Wheaton, 839; Bank of United States v. Planters Bank, 9 Wheat. 904.

The following extract contains the views of Mr. Stanton, one of the counsel for the complainant.

It is my design to present, as briefly as I can, the grounds on which the State of Pennsylvania prosecutes this suit and claims relief of this court. That purpose will be served by the discussion of a single proposition which will embrace all the points made, viz.

That the Ohio River is a highway of commerce leading to and from the ports of Pennsylvania, regulated by Congress, unlawfully obstructed by the Wheeling Bridge, to the injury of the State of Pennsylvania; and therefore that the bridge ought to be abated by decree of this court at her suit.

The first branch of this proposition, that the Ohio River is a highway of commerce, will not be disputed; for it is a geographical and statistical fact recognized by every department of the government of which this court would take judicial notice; and by their answer the defendants admit that this highway is navigated in steamboats by citizens of the State of Pennsylvania, and connects with her ports. The boundary of six States, its waters draining a large territory of four other States, flowing in a south-west direction from the Alleghany Mountains to the Mississippi, presenting to the navigator a broad and placid atream one thousand miles in length, more free from dangers and obstructions than any other navigable river in the world, it is apparent that the regulation of this river would claim the earnest attention of statesmen. Accordingly we find that when the possession of this river and the territory through which it flowed had been secured by independence and peace with Great Britain, the sagacious statesmen of that day speedily turned their attention to the regulation of the western rivers, and the commerce they foresaw must soon flow along their course,

On the 12th day of May, 1786, on the motion of Mr. Grayson, of Virginia, the following resolution was adopted:

'Resolved, That the navigable waters leading into the Mississippi and St. Lawrence, and the carrying-places between the same, be, and they are hereby, declared to be common highways, and be forever free, as well to the inhabitants of said territory as to the citizens of the United States and those of any other States that may be admitted into the confederation, without any tax, impost, or duty therefor.' Journal of Congress, 1786, p. 637.

Soon after this, all questions as to the title of the territory north-west of the Ohio being secured by compromise and cession of the claims of the several States, an ordinance for its regulation was adopted by Congress. This was the ordinance of 13th July, 1787, since become so famous in connection with another question. The 4th article, last clause, of this ordinance, contains a regulation in the same words as the resolution of Mr. Grayson. A similar condition has been imposed on the admission into the Union of every State bordering upon these waters. It is denied by the defendants that Virginia assented to this provision of the ordinance. But this can make no difference, for it is nevertheless a regulation of commerce by Congress, as has been decided by this court, (3 How. 229,) and at all events it overthrows the authority claimed by these defendants under the legislation of Ohio.

In 1789, Virginia, being in possession of a large territory north-east of the Ohio, now constituting the State of Kentucky, desired to have it admitted into the Union as a separate and independent State. For this purpose, her General Assembly, on the 18th December, 1789, passed an act providing for its erection as an independent State upon certain terms and conditions, among which were the following:

'That the use and navigation of the River Ohio, so far as the territory of the proposed State, or the territory that shall remain within the limits of this Commonwealth lies thereon, shall be free and common to the citizens of the United States.' Virginia Rev. Code, 1818, p. 59.

To this act the assent of Congress was given, (1 Stat. at Large, 64,) and it became a compact between Virginia and the other States of the Union. Freedom being thus established by Congress and the concurrent action of Virginia, as the regulation of the river channel, its commerce was still further regulated by the act of Congress of 1807, attaching the Ohio River to the collection district of Mississippi, and appointing surveyors for the ports of Pittsburg, Marietta, Cincinnati, and Louisville. 1 Stat. at Large, 464.

The growing commerce of this region in 1824 received further attention from the general government by a large appropriation to improve the navigation of the Ohio River; and from that period until now annual appropriations have been made to improve its navigation and remove obstructions. This commerce being carried on by steamboats, the regulation of these vessels in 1838 received the attention of Congress. The act of 7th of July, 1838, provided specially for their license and enrolment, for the appointment of an inspector of their boilers, engines, and machinery, prescribing the duties of the officers, and enforcing severe penalties in case of injury to persons or property. 5 Stat. at Large, 304.

Thus it appears that the constitutional power of Congress to regulate commerce on the Ohio River, belonging exclusively to that branch of the general government, has been fully exercised upon every subject susceptible of regulation. This power has been exerted upon the channel, and whatever passes through it,-upon the stream and upon its bed, upon the vessel, its navigator, and whatever it transports, upon its engine, machinery, cargo, passengers, officers, and crew; nay, that it has extended to the very subject now under consideration; and that Congress, by express and repeated action, has prohibited the erection of a bridge at Wheeling, I shall proceed now to show.

In 1836, petitions to Congress praying for the construction of a bridge at Wheeling were laid before that body. They were backed by resolutions of the State of Ohio instructing her Senators and requesting her Representatives to use their exertions to obtain that object. Accompanying them were statements and representations of similar import to the grounds now urged in favor of the Wheeling Bridge. The importance of such structure as a link connecting the disjointed fragments of the Cumberland Road, the great advantage to commerce, and to the general government in the time of war, of such facility for crossing the Ohio River,-the obstructions of ice and driftwood and the evils of the ferry,-the inconvenience of delay in transporting the mails,-all these were held up in bold relief, and represented in glowing and exaggerated colors. With the petitions were presented various communications from Mr. Ellet, the engineer by whom this bridge has been erected, urging the necessity and practicability of the undertaking, and presenting plans for its accomplishment. A favorable report was procured from the Committee on Roads and Canals, which undertook to answer the objection urged against bridging the Ohio. From this report it appears that the main, and indeed the only important objection was that now insisted on by the State of Pennsylvania; the obstruction which such an erection would be likely to occasion to steamboats. In answer to this objection it was insisted then, as now, that high chimneys were unnecessary, and that the few boats likely to be obstructed might, with proper machinery, accommodate themselves to the exigency, and that their convenience should yield to the public benefits of a bridge. But Congress thought otherwise, and the plan was rejected. House Reports, 1st sess. 24th Cong. No. 132.

At the next session of the same Congress the subject was again brought forward; the same plan proposed; the same views presented; the same arguments urged. The project was again opposed in Congress on the ground of its injury to navigation, and, as is evident from the committee's report, was on that ground alone defeated. House Reports, 2d sess. 24th Cong. 672.

Still insisting upon a bridge at Wheeling, the 25th Congress had the subject presented in a report of the Committee on Roads and Canals, on the 27th of June, 1838. In the mean time an exploration and survey had been made, under the direction of the War Department, by Messrs. Sanders and Dutton, two skilful and distinguished engineers in the government service. They presented a plan for a suspension bridge across the Ohio River, having for its basis a strict regard to the rights of navigation, and providing that no obstruction should be offered to the passage of the highest steamboat chimney on the highest floods. Their plan proposed a space of five hundred feet in width and the height of the highest chimney then known; and, in order to provide for any change or improvement in steamboats, the floor of the bridge was to be movable so as to allow the passage of boats. Report of Messrs. Sanders and Dutton, House Documents, 25th Congress, June, 1838, No. 993. The cost was estimated at $400,000. A plan by Mr. Ellet was also submitted for a bridge, the same elevation, seven hundred feet in width. But the same objections being urged, were found to be insuperable, and the plan was rejected.

It is further to be remarked that among the documents of this session was a surrender by the city of Wheeling of its streets for the purposes of a bridge, and by Zane of any portion of the island for purposes of embankment. And yet an excuse now given for not erecting the bridge higher is the alleged damage to the streets, and the amount Zane would charge for embankment on the island, which is set down at the moderate estimate of $20,000. These rights were then freely granted for the bridge; and it was not until a later day that the cheap expedient was resorted to of saving private property by the encroachment on public rights on a navigable river.

In December, 1843, another series of resolutions was procured from the Ohio legislature, and, armed therewith, those interested in making Wheeling the head of navigation, again appeared before Congress. But Pennsylvania had become awakened to her interests, and the danger becoming imminent, she instructed her senators and representatives to oppose the erection of the proposed bridge across the Ohio. Her resolutions pointed to the specific objections now urged:-The obstruction to the free use of the Ohio River; the injury to commerce, trade, and manufactures, building of ships, war-steamers, and other vessels, by placing a barrier in the passage to the Gulf; the interfering with steamboats, in high water, trading with the Western and Southern States; and claimed the use of the Ohio River as a great thoroughfare. They were in these words:

'Whereas, application has been made to Congress of the United States for an appropriation to aid in the erection of a bridge across the Ohio River at Wheeling, Virginia, the construction of which might materially obstruct the free use and navigation of said river above that point, and injuriously affect the commerce of the city of Pittsburg and all that district of Pennsylvania lying west of the Alleghany Mountains, by arresting the building of war-steamers and other vessels of the great western manufacturing and commercial emporium of this State, by placing a barrier to their passage to the Gulf of Mexico, besides seriously interfering with the free navigation of the Ohio River by steamboats and other vessels engaged in the trade of the Western and Southern States during high stages of water: Therefore,

'Resolved, by the Senate and House of Representatives of the Commonwealth of Pennsylvania, in General Assembly met, That our Senators in Congress are hereby instructed, and our Representatives requested, to vote against any appropriation by the national legislature to the object above stated, and oppose every proposition for the erection of a bridge at Wheeling or at any other point on the Ohio River, or any project that would result in increasing the obstacles already existing to the free navigation and use of that great thoroughfare of this Commonwealth.

'Resolved, That the Governor be requested to transmit a copy of the foregoing preamble and resolution to each member of the Pennsylvania delegation in Congress.

'JAMES Ross SNOWDEN, Speaker of the House of Rep.

'WILLIAM BIGLER, Speaker of the Senate.

'Approved 26th January, 1844.

DAVID R. PORTER.'

These resolutions were immediately laid before Congress, and referred in the House to the Committee on Roads and Canals, on which was Mr. Steenrod, a member from Wheeling. House Doc. 28 Cong. No. 79.

Here, then, the question was brought before Congress in the most solemn and imposing form. Two sovereign States appeared at the bar of Congress, one urging and the other opposing the bridge.

At this crisis a bill had already been reported by that committee making an appropriation for a bridge at Wheeling, and containing this clause, 'that the bridge shall be so constructed as to admit at all times, without obstruction or delay, of the safe and easy passage of steamboats of the largest dimensions.'

On the twenty-ninth day of January Mr. Steenrod presented a report, not contesting the rights of Pennsylvania, nor the injury she must suffer from an obstruction at Wheeling, but claiming that a bridge could be erected across the Ohio, at Wheeling, without obstructing the use and navigation of the river according to the provisions of the bill. With this report was submitted a plan by Mr. Ellet for such a bridge, stating that he had, since the date of his former plan, examined the localities, and 'would recommend a radical change of plan for the Wheeling Bridge, and leave the river entirely unobstructed.' House Rep. 28 Cong. No. 79.

It appears, moreover, that the plan proposed was in some respects similar to that afterwards adopted and executed by the same engineer. It was a single span across the river, at an elevation of ninety feet above low water. But it was not then disclosed that such elevation was to be only for one hundred feet in width; that the channel was to be cut across by an inclined plane so as to obstruct a public navigable river. The specific objection was then urged as now, that ninety feet above low water would not admit the passage of steamboats with tall chimneys. It was then answered as it is now, that such height was unnecessary, that few boats only used such chimneys, that they ought to be provided with hinges and machinery for lowering; that detention would be only for a short space; that the river was impassable by reason of ice; that the mails were delayed, and, in short, every possible argument that has been, or can be, presented in favor of this bridge was, in a report by the member from that district, pressed upon Congress. It was all to no purpose. The rights of Pennsylvania, and her interests of navigation, were deemed paramount, and the constitutional obligation to preserve the Ohio River as a free and common highway was held to be inviolable.

Now, the regulation of commerce consists as much in negative as positive action. Mr. Justice McLean, Passenger Cases, 7 Howard, 399.