Pennsylvania v. Wheeling and Belmont Bridge Company (59 U.S. 421)/Dissent McLean
Mr. Justice McLEAN, dissenting.
A motion was made, at the last term, for process of contempt against the bridge company, for not complying with the decree of this court to elevate or abate the suspension bridge, or open a draw in the bridge over the western branch of the Ohio, so as to afford a safe channel for steamboats when the water is too high for them to pass under the suspension bridge; and also for not obeying the injunction granted, &c.
In opposition to this motion the act of congress of the 31st of August, 1852, is set up, which purports to legalize both bridges.
The 6th section of the above act provides 'that the bridges across the Ohio River at Wheeling, in the State of Virginia, and at Bridgeport, in the State of Ohio, abutting on Zane's Island, in said river, are hereby declared to be lawful structures, in their present position and elevation, and shall be so held and taken to be, any thing in any law or laws of the United States to the contrary notwithstanding.'
7th section. 'And be it further enacted that the said bridges are declared to be and are established post-roads for the passage of the mails of the United States, and that the Wheeling and Belmont Bridge Company are authorized to have and maintain their said bridges at their present site and elevation; and the officers and crews of all vessels and boats navigating said river are required to regulate the use of their said vessels and boats, and of any pipes or chimneys belonging thereto, so as not to interfere with the elevation and construction of said bridges.'
This court, in the exercise of its judicial functions, with the approbation of seven of its members, which included all the judges present, with but one exception, took jurisdiction of a complaint made by the State of Pennsylvania against the Wheeling Bridge Company, which was charged with having constructed its bridge so low as to cause a material obstruction to the commerce of the Ohio River; and which was especially injurious to the State of Pennsylvania, which had expended several millions of dollars in the construction of lines of improvement from Philadelphia to Pittsburg-such as turnpike roads, railroads, canals, and slackwater navigation-over which more than fifty millions' worth of property were transported annually, in connection with the Ohio River; and that any material obstruction to the navigation of the river by the bridge would be injurious to that State, by lessening the transportation of passengers and freight on the above lines.
After a very tedious and minute investigation of the facts of the case, which embraced the reports of practical engineers, depositions from the most experienced river men, statements of the stages of water in the river throughout the year, and also after a full consideration of the legal principles applicable to the matter in controversy, six of the members of this tribunal, two only dissenting, were brought to the conclusion that the bridge was a material obstruction to the navigation of the river, at seasons of the year and under circumstances which rendered its navigation most important to the public and to the complainant, and that there was no adequate remedy for it by an action at common law.
From the facts developed in the course of the investigation, it appeared that the seven passenger packets, which plied between Cincinnati and Pittsburg, whose progress was obstructed by the bridge, conveyed about one half of the goods, in value, which were transported on the river, and three fourths of the passengers between the above cities. That each packet transported annually thirty thousand nine hundred and sixty tons of freight, and twelve thousand passengers.
It appeared that a steamboat drawing five feet water, and whose chimneys were seventy-nine feet six inches high, could never pass under the apex of the bridge, at any stage of the water, without lowering its chimneys. And the court found by lowering the chimneys, including the expense of machinery, and delay of time, without an estimate as to the dangers incurred by the operation, that a tax was imposed upon the seven packets, annually, of $5,598.00, which sum was exacted from the owners, for the accommodation of the crossing public and the bridge proprietors.
The court also found that the cost of each packet, per running hour, was eight dollars and thirty-three cents; and, as was estimated, if the chimney should be made shorter, so as to pass under the bridge at an ordinary stage of water, it would cause the average loss of four hours in each trip between Cincinnati and Pittsburg, which would amount to the sum of thirty-three dollars and thirty-two cents, which, being multiplied by sixty, the average number of trips each season, would amount to the sum of $1,999.20; and this, being multiplied by seven, would make the sum of $13,994.40, which would be an annual loss by the owners of these packets.
The court also found, that from the great weight of the chimneys of the packets, and other boats of that class, they could not be lowered by hinges at the tops; that they could only be let down at the hurricane deck by means of a derrick. The average weight of the chimneys, which must be lowered upon each of the large boats, was about four tons; and if this enormous weight, hanging over the cabin, or rather over the berths of the passengers, in the process of lowering, should come down by the run, their weight would crush the hurricane deck, break through the berths of the cabin, and be arrested, probably, only by the cargo or the lower flooring of the vessel.
For these reasons, and others contained in the opinion of the court, they came to the decision that the bridge obstructed the navigation of the Ohio, and to the irremediable injury at law of the public works of Pennsylvania. But, to avoid any greater hardship on the bridge owners than would be required by the maintenance of the commercial right, this court decreed that if the defendant would open a draw in the western channel which would admit the passage of boats, when, from the high water, they could not pass under the suspension bridge, that it would remove all reasonable ground of complaint by the plaintiffs. But this it refused to do, and invoked the legislation of congress successfully, in procuring the passage of the act above cited.
That congress have a constitutional power to regulate commerce among the States, as with foreign nations, must be admitted. And where the constitution imposes no restriction on this power, it is exercised at discretion; and the correction of impolicy, or abuse, is only through the ballot-box. During the existence of the embargo, in the year 1808, it was contended that, under the commercial power, an embargo could not be imposed, as it destroyed commerce. But it was held otherwise; so that the constitutionality of a regulation of commerce by congress does not depend upon the policy and justice of such an act, but generally upon its discretion.
An embargo is a temporary regulation, and is designed for the protection of commerce, though, for a time, it may suspend it. There are, however, limitations on the exercise of the commercial power by congress. As stated in the opinion of the court, congress had regulated the commerce of the Ohio River. But all such regulations, before the passage of the above act, were of a general character, and tended to the security of transportation, whether of freight or passengers.
The decree in the Wheeling bridge case was the result of a judicial investigation, founded upon facts ascertained in the course of the hearing. It was strictly a judicial question. The complaint was an obstruction of commerce, by the bridge, to the injury of the complainant, and the court found the fact to be as alleged in the bill. It was said by Chief Justice Marshall, many years ago, that congress could do many things, but that it could not alter a fact. This it has attempted to do in the above act. An obstruction to the navigation of the river was, technically, a nuisance, and, in their decree, this court so pronounced.
The compact between Virginia and Kentucky, which 'declared, that the use and navigation of the River Ohio should be free and common to the citizens of the United States,' was incorporated into the Kentucky constitution of 1791, and received the sanction of congress in the admission of that State into the Union. This compact bound both parties; and this court held, that a violation of it by a law of Kentucky, called the occupying claimant law, was void, as it impaired the obligation of the compact. Virginia, no more than Kentucky, could violate any of its provisions, although they extended to citizens of the Union.
The effect that the act of congress shall have upon the decree of the court, I will now consider. This subject can be treated only with the profoundest respect for the legislative action of the nation, and with a sincere desire to give to it all the effect which such an expression should have.
The congress and the court constitute co ordinate branches of the government; their duties are distinct and of a different character. The judicial power cannot legislate, nor can the legislative power act judicially. The constitution has declared, that the judicial power shall extend to all cases in law and equity arising under the constitution, the laws of the United States, and treaties, &c. All legislative powers are vested in congress. While these functionaries are limited to their appropriate duties as vested, there can be little or no conflict of jurisdiction.
From the organization of the legislative power, it is unfitted for the discharge of judicial duties; and the same may be said of this court in regard to legislation. It may therefore happen, that, when either trenches upon the appropriate powers of the other, their acts are inoperative and void.
The judicial power is exercised in the decision of cases; the legislative, in making general regulations by the enactment of laws. The latter acts from considerations of public policy; the former by the pleadings and evidence in a case. From this view it is at once seen, that congress could not undertake to hear the complaint of Pennsylvania in this case, take testimony or cause it to be taken, examine the surveys and reports of engineers, decide the questions of law which arise on the admission of the testimony, and give the proper and legal effect to the evidence in the final decree. To do this is the appropriate duty of the judicial power. And this is what was done by this court, before the above act of congress was passed. The court held, that the bridge obstructed the navigation of the Ohio River, and that, consequently, it was a nuisance. The act declared the bridge to be a legal structure, and, consequently, that it was not a nuisance. Now, is this a legislative or a judicial act? Whether it be a nuisance or not, depends upon the fact of obstruction; and this would seem to be strictly a judicial question, to be decided on evidence produced by the parties in a case.
We do not speak of a public commercial right, but of an obstruction to it, by which an individual wrong is done, that at law is irremediable. A regulation of the public right belongs exclusively to congress. It is a question of policy, which seldom, if ever, comes within the range of judicial action. All such questions belong to the legislative power.
The words of the seventh section of the act are, 'that the said bridges are declared to be and are established post-roads for the passage of the mails of the United States; and that the Wheeling and Belmont Bridge Company are authorized to have and maintain their said bridges, at their present site and elevation; and the officers and crews of all vessels and boats navigating the river are required to regulate the use of their said vessels and boats, and of any pipes or chimneys belongign thereto, so as not to interfere with the elevation and construction of said bridges.'
The provisions of this section are: 1. The bridges are declared to be post-roads; and, 2. The pipes and chimneys of the boats are required to be cut down, so as not to interfere with said bridges.
And, first, as to the effect of making the bridges post-roads:--
By the act of the 7th July, 1838, all railroads are declared to be post-roads; and, for more than twenty years, all navigable waters on which steamboats regularly ply are established as post-roads.
The policy of extending the lines of post-roads on all railroads and navigable waters was to require, under a penalty, all boats and railroad cars to deposit in post-offices all letters which they may carry, so that the postage may be charged. It gives to the government no rights on these lines of communication, except where the mail may be carried under a contract, which, if obstructed, subjects the offender to prosecution. It gives to the government no other interest in or control over the road.
The railroad may be changed at the will of the proprietors, and the mail will not be carried in the cars, except by contract, for which a compensation is paid. The same principle applies to a turnpike road on which the mail is carried. Even an ordinary road, though a post-road, may be altered or vacated at the will of the local authority.
It is difficult to perceive what benefit can result to the public from these bridges being declared a post-road. It cannot use the bridges without paying toll the same as for the use of a turnpike road or railroad. It does not prevent the Bridge Company from pulling down the bridge or altering it in any respect. They are under no obligation by reason of this use to keep up the bridge or repair it. They may abandon it, and if it should be again prostrated by the winds, they are not obliged to rebuild it.
The idea that making the bridge a post-road would exempt it from the consequence of being a nuisance, is wholly unsustainable. Should the contractor to carry the mail refuse or neglect to pay the customary tolls, he would be liable to a suit for the amount. If one of the Pittsburg packets carry the mail under a contract with the post-office department, and the bridge should obstruct the boat, such an obstruction would make the bridge company liable, unless the above act, which gives a preference to the crossing mail, applies a different rule to the mail boat, and it would seem that no such preference can arise under the law declaring the bridge to be a post-road.
But is there a power in congress to legalize a bridge over a navigable water within the jurisdiction of any State or States? It has the power to regulate commerce among the several States, requiring two or more States to authorize the regulation. But this does not necessarily include the power to construct bridges which may obstruct commerce, but can never increase its facilities on a navigable water. Any power which congress may have in regard to such a structure is indirect, and results from a commercial regulation. It may, under this power, declare that no bridge shall be built which shall be an obstruction to the use of a navigable water. And this, it would seem, is as far as the commercial power by congress can be exercised.
The same power that would enable congress to build a bridge over a navigable stream would authorize it to construct a railroad or turnpike road through the States of the Union, as it might deem expedient. This power may have been asserted in regard to post-roads, but the settled opinion now seems to be, that to establish post-roads within the meaning of the constitution is to designate them. In this sense congress may establish post-roads extending over bridges, but it can neither build them nor exercise any control over them, except the mere use for the conveyance of the mail on paying toll.
It has often been held, that in throwing a bridge across a navigable river or arm of a lake, or the sea, the sovereign power of the State in some form may authorize it, under such restrictions and conditions as may be considered best for the public. But this power must always be so exercised as not materially to obstruct navigation. Over this public right congress exercises exclusive legislation, except where the constitution restricts it; and the judicial power can never interpose, except in regard to private injuries. It would be otherwise if congress should authorize an indictment for obstructing the public right of navigation on the Ohio, or generally. If, under the commercial power, congress may make bridges over navigable waters, it would be difficult to find any limitation of such a power. Turnpike roads, railroads, and canals might on the same principle be built by congress. And if this be a constitutional power, it cannot be restricted or interfered with by any state regulation So extravagant and absorbing a federal power as this has rarely, if ever, been claimed by any one. It would, in a great degree, supersede the state governments by the tremendous authority and patronage it would exercise. But if the power be found in the constitution, no principle is perceived by which it can be practically restricted. This dilemma leads us to the conclusion that it is not a constitutional power. Having arrived at this point, it only remains to say, that the act of congress declaring the bridge to be a legal structure, being the exercise of a judicial and an appellate power, is unconstitutional, and consequently inoperative. It is what it purports to be, a reversal of the decree of this court, in effect, if not in terms.
Under the commercial power, congress may declare what shall constitute an obstruction of commerce, on a navigable water; and so far as the public right is concerned, there is no limitation to the exercise of this power, unless it be found in the constitution.
It must be admitted that the provision in the 7th section in regard to the length of the pipes and chimneys of the boats which ply on the Ohio from and to Pittsburg, is a commercial regulation. Congress have required the boilers of steamboats to be inspected, and that an iron chain should be used as a tillerrope on all steamboats, and this has been required with a view to the safety of the boat, its passengers and cargo. In the event of fire the rope is generally burnt, and the boat becomes unmanageable. This is as far as congress has legislated, in regard to the tackle of the boat. No attempt has before been made to regulate the height of the chimneys.
From facts above stated, it appears the speed of the seven packets, by cutting down the chimney, would be reduced four hours, on an average, each, on a trip between Pittsburg and Cincinnati. This, as the statement shows, would increase the expense of the owners of the seven packets, in addition to the loss of time, $13,994.40 per annum. Such a regulation would seem to be the more objectionable, as the loss arises from the preference given to the bridge, which the public accommodation does not require.
But there is another objection, of a more serious nature. In the 9th section of the 2d article of the constitution, it is declared 'that no preference shall be given, by any regulation of commerce or revenue, to the ports of one State over those of another.' This can have no relation to 'duties and imposts,' as, in the 8th section, it is declared 'they shall be uniform throughout the United States.' The clause must refer to some other regulation, and it applies, of course, to all regulations affecting commerce.
It was said in the late argument of this case, that the Pittsburg packets had done a larger business in transportation the last year, than within the same time at any former period. If this be so, the injury by cutting down the chimneys of all the boats to and from Pittsburg must amount to a larger sum than above stated. Nothing could more forcibly illustrate the propriety of the above provision in the constitution, that no port in one State shall have a preference over those of another.
Practical knowledge in regard to steamboat and railroad transportation of freight is better than theory. Notwithstanding the lines of railroad from Pittsburg to Cincinnati, and to St. Louis, by the way of Chicago, for the past year have been in operation, the business on the steamboat lines has greatly increased in freight; and from published prices it would seem that the water transportation is three times cheaper than the railroad, and, on account of the frequent detention of freight cars, is much more expeditious.
But it is said many regulations of commerce, from local circumstances, cannot operate equally on all ports. As, for instance, a breakwater may be more beneficial to one port than another; and the same inequality may exist from the establishment of light-houses and the improvement of harbors. But these are incidental and not direct consequences, resulting from the exercise of the legislative power, and no prudence can, effectually, guard against them. As near as may be, equal facilities should be given to ports of equal importance; this, however, is a matter for the decision of congress, and does not belong to the judiciary. But where a prohibition is imposed on congress in the exercise of the commercial power, and it is not regarded, it is a judicial question, and this is the only check to be relied on against such unconstitutional legislation.
It is objected that the court cannot determine what degree of preference shall be given to one port over another, to make the regulation come within the prohibition. If this be so, then is the constitutional prohibition a dead letter; but this is not the practical view which this court have uniformly taken of the constitution. The restrictions on state powers stand upon the same footing, and no insuperable difficulty has been found in giving effect to them.
'No State shall coin money; emit bills of credit; make any thing but gold and silver coin a tender in payments of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts.' To determine the unconstitutionality of a law under some of these prohibitions would be attended with as much, if not more, difficulty than to say whether a commercial regulation gives a preference to one port over another.
In the case of McCulloch v. The State of Maryland, 4 Wheat. 431, the court say, 'that the power to tax 'the Bank of the United States' involves the power to destroy,' and on this ground the tax on the bank by the legislature of Maryland was declared to be unconstitutional and void. If this rule be applied to the point under consideration, no doubt could exist. Congress are prohibited from giving a preference to one port over another in different States, and consequently, if any such preference be given, the regulation is void. Not an incidental preference, but a regulation which necessarily acts injuriously and oppressively on one to the exclusion of other ports.
Suppose congress had declared by law that all steamboats plying to and from Pittsburg should not use chimneys more than forty feet high, which would essentially retard their progress, and consequently injure their business, would any court hesitate to pronounce such a regulation unconstitutional, as giving a preference to all other ports on the river over that of Pittsburg. This congress has in effect done, and the only justification for it must be found, if any exist, in the regulated height of the bridge. But the bridge, at a very small expense comparatively, could have been elevated as our decree required, and as the charter under which it was built also required. Less than this: if a draw had been made in the bridge over the western channel, so as to enable boats to pass up and down the river when they could not pass under the suspension bridge, nothing more was required. The expense of the draw, it is believed, would not exceed twenty-five thousand dollars-a sum less, as it would seem, than the annual injury inflicted on the commerce of Pittsburg by the bridge.
If the regulation of the chimneys of steamboats, as in the law to protect the bridge, would be unconstitutional without the bridge, it is not perceived how the bridge could make it constitutional. The right to cross the river by a bridge, and to navigate it, is admitted; but these public rights are not incompatible. They can both be enjoyed without any material interference of the one with the other. This being the case, congress, it would seem, cannot restrict the right to navigate the river for the benefit of the bridge. It cannot violate the constitutional inhibition in giving a preference to other ports over that of Pittsburg, by declaring the Wheeling bridge formed no obstruction to navigation. The constitution declares congress shall not give a preference to one part over another; the act, if done, is not constitutional, though done under the power to regulate commerce.
The equality which such a regulation was intended to secure is a matter intimately connected with the commercial prosperity of the country. For a wrong thus done by congress there is no remedy, except through the exercise of the judicial power. This court is sworn to support the constitution, and in every infraction of that instrument by congress or state legislatures, where individual injury is inflicted, redress may be obtained by action in court. Congress is prohibited from laying a duty on exports, except for port charges. Can a duty be imposed on exports beyond this under the commercial power? The commercial power is limited in this and in other cases, and if the limit be exceeded the act is void. The federal government in all its forms exercises enumerated and limited powers. But if the limitation depends upon the discretion of congress, there is neither limitation nor protection. This is neither the theory nor the practical operation of the government. Congress has power to regulate commerce, but it has no power in such regulation to give a preference to one port in a State over another port in a different State. If it may do this to an extent materially injurious, it may equally disregard every other restriction in the constitution. The regulation of the height of the chimneys of steamboats which ply to and from Pittsburg, by the present elevation of the bridge, is the same in effect and in principle as if the act had required such steamers to cut down their chimneys without reference to the bridge. The bridge affords no justification or excuse for an unconstitutional regulation.
But it is said there is great difficulty in ascertaining the fact, that a regulation gives a preference to one or more ports in a State over those of another, and it is intimated that a jury should be called to ascertain the fact. This argument was used in regard to the fact of obstruction, complained of by Pennsylvania; but this court very properly determined that a court of chancery, having jurisdiction, could inquire whether the bridge constituted such an obstruction to commerce as materially to injure the public works of Pennsylvania, and on such a finding by this court the late decree was entered for the removal of the obstruction.
What fact beyond this is necessary to determine the fact of preference of one port over another? The chimneys of the steamboats which ply to and from Pittsburg are required to be cut down, so as to pass under the bridge. By this the rights of the port of Pittsburg are measured by the Wheeling bridge, and that bridge, this court have held, is so material an obstruction to commerce as to be a nuisance to the State of Pennsylvania.
This obstruction or nuisance consists in the necessity, when a boat passes under the bridge, of lowering its chimneys or cutting them down, so as to pass under it; and if this be a material injury to the commerce of the State of Pennsylvania, on its lines of improvement, how much greater the injury to the port of Pittsburg, from and to which one hundred millions' worth of property is transported annually? Can any one fail to see that the proof of preference to the port of Wheeling, and those below it, is given by the regulation complained of, over the port of Pittsburg and others above the bridge? The proof of this important fact, as found by the decision of the court already pronounced, is more conclusive to show the preference than to establish the claim of Pennsylvania.
Can it be urged that this preference is limited to a mere entry of the port? Had the Wheeling bridge been constructed over the Ohio River, a short distance below Pittsburg, it would have been far less injurious to that port than it now is; the boats, with their propelling power undiminished, could have approached near to that port, where their cargoes are discharged and received.
It is contended that the commerce across the river required the consideration of congress equally with that which floated upon its surface. There is no ground for such an argument. Some twenty-five or thirty thousand dollars, under the decree, would open a passage in the western channel so as to remove the obstruction. The annual injury to the commerce of the port of Pittsburg by the bridge is believed to exceed that sum.
Had the act of congress required all steamboats which ply upon the Ohio River to cut down their chimneys, so as to pass under the Wheeling bridge, the regulation, being general, however injurious, would not have given a preference to one port ever another. It would have been the exercise of the commercial power, within the constitution.
The principle involved in this case is of the deepest interest to the commerce of the West. The Mississippi River and its tributaries water a country unsurpassed, if equalled, in the world, in extent and fertility. But if the obstruction of the Wheeling bridge may be repeated wherever the crossing public shall think proper to build a bridge, one third of the internal commerce of the Union will be materially obstructed. The injury of such a regulation would be very limited in the Atlantic States, as there the rivers are short, and navigation is generally limited to the ebb and flow of the tide. If the Wheeling bridge be a legal structure, hundreds of bridges on the same principle may be thrown over the Mississippi and its navigable tributaries, to the great and remediless injury of western commerce.
That commerce is rapidly increasing, and at this time it probably amounts to four hundred millions of dollars annually; and if the Father of Waters and his tributaries shall have the same regulation extended to them as is now applied to the Wheeling bridge, it will impose a tax upon western commerce of several hundred thousand dollars annually; and this will be, not for the advancement of commerce over those waters, as it will greatly obstruct it, but to save a few thousand dollars in the structure of each bridge.
In regard to the motion for process of contempt against the bridge company, we must, I think, be governed by matters which appear upon the record. Shortly after the first decree was entered, the defendants made application to congress for relief. The object of the bridge company in making this application, was to counteract and annual the decision of this court. It is not supposed, however, that such was the intention of congress in passing the law. The two sections referred to were moved as an amendment to an act making appropriations for the service of the post-office department, on the 31st of August, 1852, at the close of that session. But little time was afforded for investigation of the important questions involved in the act. This fact is not stated to impair the force and effect of the act, but I think it is fit to be considered on this motion, in regard to the conduct of the bridge company.
The court may properly consider, if they are not bound to do so, that the defendants, in making application to congress, and in procuring the passage of the act, as having acted in good faith. And although the law, if it has been passed in violation of the constitution, cannot be held valid, yet it may save the defendants from the contempt charged. On its face, it gave to the bridge company all that it could desire or ask against the decree of this court. It legalized what the court held to be illegal; and it required all steamboats, running to and from Pittsburg, from any point below Wheeling, to regulate their chimneys so as to pass under the bridge. It was the exercise of a judicial power without an examination of the principles of law applicable, and without a knowledge of the facts on which the decree was founded. No imputation is cast upon that honorable body, but the fact must be known to every one that the senate and house of representatives, however distinguished for their high ability and legal learning, could not discharge, to the public advantage, the duties of an appellate court.
I have no doubt that the learned judge had power to grant the injunction. The 5th section of the act of the 2d of March, 1793, (1 Stats. at Large, 334,) declares 'that writs of ne exeat and of injunction may be granted by any judge of the supreme court, in cases where they might be granted by the supreme or circuit court.' The 14th section of the judiciary act of 1789 declares that 'the courts of the United States shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law.'
Six of my brethren now hold that the act of congress arrested the progress of the court in carrying their decree into effect, and gave the defendants a right to rebuild their bridge. The injunction prohibited them from reconstructing it; can the defendants be punished for contempt, for doing that which the law authorized? This view shows that the injunction ought not to have been granted, as it was against law. And is not this a sufficient excuse for the contempt charged? My view is, that the law was unconstitutional and void, and yet I consider it as excusing the defendants' contempt. I cannot punish defendants, by fine or imprisonment, for doing that which the law authorized them to do.
There was no opposition made when the injunction was applied for; and it was granted, as a matter of course, on the face of the bill. Had the act of congress been set up against the allowance of the injunction, the motion, in all probability, would have been referred to the supreme court by the judge.
Having come to the conclusion, for the reasons above stated, that the act of congress is inoperative and void, although it may excuse the contempt, it can afford no excuse for a further refusal to perform the decree. I would, therefore, order that the final decree, heretofore made, be carried into effect according to its true intent, by the first day of October next, and that the defendants pay the costs.
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