THE

AMERICAN LAW REGISTER.

NOVEMBER, 1854.

ARE STATE BRIDGES CONSTITUTIONAL?

A proceeding has recently been instituted in the Circuit Court of the United States for the Eastern District of Pennsylvania, the possible consequences of which are so grave, that we take the earliest opportunity of calling to it our readers' attention. The case is one which involves a constitutional question which will affect in the most vital way, the interests of every State in the Union; and is moreover likely to create an angry excitement in Pennsylvania, which may lead to collision with the Federal authority. It is in every respect worthy of th most serious consideration. Through the machinery of this case, certain theories with regard to the central government, which have acquired of late years conspicuous prominence and development, are at last concentrated and brought to a focus. They are now set face to face, in what is perhaps a final struggle, with the principle of the sovereignty of the States in their internal affairs; and if the victory remains with them, the decision will originate the most remarkable change in the character of our government which has occurred since the adoption of the Constitution.

The case is as follows: A citizen of New Hampshire alleging that he is engaged in a trade with the City of Philadelphia, carried on in vessels which receive their cargoes in the Schuylkill river at some distance from its mouth, has brought a bill in Equity against the Penrose Ferry Bridge Company, a corporation chartered by the State of Pennsylvania for the purpose of building a bridge over that river; which bill asks for the removal of the bridge, now nearly completed, on the ground that it is an obstruction to navigation; and in the meantime prays an injunction to restrain its further progress. The Schuylkill is a stream of considerable size, flowing entirely within the State of Pennsylvania. For its last ten miles it passes through the corporate limits of the City of Philadelphia, which it then leaves to empty itself into the Delaware, upon which the city is principally built. It separates the most important portion of the town from the western and southern parts of the State, and the internal trade from those quarters, and much from the north also, must therefore of necessity pass over it; while on the other hand, the main roads of Pennsylvania concentrate upon its western banks. To accommodate this traffic, there are now open five bridges, four of them railroad bridges also, below the point to which the river is naturally navigable. Such, however, is the increase of trade and the growth of the city, that this number has become entirely insufficient, and at times very serious inconvenience is suffered; so that to remedy the evil, the legislature has been obliged to provide for the erection of several new bridges, one of which is that which is now sought to be restrained.

The principal, and almost the sole commerce of the river itself, is in the coal trade. The coal is brought down from the interior, in the barges of the Schuylkill Navigation Company, is unloaded at wharves below the present Permanent Bridge, and there reshipped into coasting vessels. The Penrose Ferry Bridge is a couple of miles below this point. and is some eight feet above high water. It would furnish no obstruction to the passage of boats or barges, but would delay or prevent the passage of coasting vessels with masts. On account of

It is provided with a draw, and

the injury to him in this respect, the complainant who is affected in the last category, has asked the interference of the Court. It is understood, however, that the Schuylkill Navigation Company, a Pennsylvania corporation, are the real parties.

The complainant applied to the Court for a preliminary injunction, upon affidavits; while an answer was put in, denying the equities of the bill. No direct legislation on the part of Congress over the Schuylkill was shown, but it was insisted that Philadelphia lying on Schuylkill, had been always a port of entry, and that the revenue officers exercised their duties on that river, which it was argued was equivalent to a direct regulation. But the main stress of the argument turned upon a general denial of the right of the State to authorize in any manner, the obstruction of a navigable stream. And this was the view of the Circuit Judge, under the Wheeling Bridge case,' recently decided in the Supreme Court; and he accordingly expressed his opinion at once, in favor of granting the injunction. The District Judge, however, reserving his opinion as to the main question, dissented on the ground that the point was too important a one, and that too many valuable improvements by the States depended for their validity upon its determination, to justify the Court in settling the question upon preliminary injunction. The Court being divided, the matter rests for the present an open one.

If this case of the Penrose Ferry Bridge were an ordinary matter of private litigation, we should not consider ourselves justified, whatever might be its general interest or the strength of our convictions, in obtruding an opinion on its merits at this stage of the controversy. We are fully aware of the impropriety of a popular discussion of legal questions while waiting adjudication, as well by journals of a legal, as of any other character, and would scrupulously abstain from a course of such a nature. But with regard to questions of constitutional law, and especially one of such importance as the present, we conceive it to be entirely different. They are matters in which the people, lawyers and laymen, are

113 How. 518.

most deeply interested, and upon which they are all more or less competent to express an opinion. They affect the very foundations of the social structure, and their determination reacts upon the future as well as the present. Over them the action of the Judiciary is final and irrevocable, and binds posterity like a Fate. The right of public criticism upon such subjects, therefore, to be valuable, must be exercised freely and with a jealous promptness, and its jurisdiction cannot be abated by a plea that the matter is still before another tribunal.

Regarding the matter in this light, we believe that we shall be guilty of no disrespect to the very able Court, before whom this case is now pending, in submitting some arguments which convince us that the power which it is asked to exert, is beyond its constitutional functions. We will, in so doing, simply exercise the ordinary and undeniable right of every citizen, and shall not, we trust, be open to the charge of attempting to anticipate judicial decision.

The question to be discussed may be stated generally, as follows: Are the courts of the United States authorized to declare void an act of a State legislature, with regard to the use of a public stream, as for instance, in authorizing the erection of a bridge, in so far as such legislation interferes in any way with its previous navigability?

Before entering upon the investigation of the nature and principles of our government, which the determination of this question necessarily requires, we must first establish briefly certain clementary principles of law, which underlie any discussion thereof. For even these, in the political controversies of which it has been the subject, have become tainted with fallacies which must be filtered off, before we can rely upon the purity of our reasoning.

Public streams, in all countries, whether under the Roman or the common law, have been supposed to belong to the State, and to constitute part of the public domain held in trust for the benefit of its citizens. The ownership of property necessarily implies the right to determine what is its most effective and beneficial mode of employment; and, where it is held in trust, this right becomes also a duty. As to every species of public property, therefore, the State is vested with an absolute discretion as to the manner in which it is to

be used; that discretion to be exercised for the benefit of its subjects. Thus, land over which it possesses direct dominion, may be granted away, or sold, or if it be retained, may be employed in the way which is deemed most advantageous. So of the indirect dominion for the purpose of making roads, which may be exercised for the establishment of highways or turnpikes, or railroads, or on the other hand, of vacating them again, just as the general interest demands.

The principles which apply to a State's ownership of publie streams, are identical in their nature. That ownership is of the whole stream;-its water and the fish it contains, its bed and the islands which rise above the surface. These constituent elements of the property may be applied to various uses, among which the State is bound, as a duty to its citizens, to select the most important. Usually this is its fitness for navigation; but that is by no means always the case. A common fallacy in the discussion of this question, is to assume quietly that navigability is the only characteristic of a public stream, and to argue upon that basis. It is, however, merely the usual test of public property, because it is assumed that where it exists, the State cannot have parted with dominion. But the fact of navigability, and the right of the public to navigate, are not identical. In order to the latter, there must be superadded a determination by the State of the special use to which the stream is to be applied, in the shape of a declaration that it shall be, thenceforth, a public highway. A State may, and sometimes does, reserve to itself the bed and fisheries of a non-navigable stream; and on the other hand it may destroy navigability in a river belonging to its domain, in order to employ it for other ends. Thus, it may erect a dam over a stream for the purpose of supplying a city with water, or to reclaim valuable marsh lands and improve the healthiness of the country. It may be necessary also to destroy an old channel in straightening a river, or in making a canal. So where a river possesses valuable fisheries, the State may choose to subordinate the navigation to them, as the more important.

But the control of the government does not rest here. There is a habit among a certain school of politicians in this country, of con