Pennsylvania v. Wheeling and Belmont Bridge Company (59 U.S. 421)/Opinion of the Court

by Samuel Nelson

United States Supreme Court

59 U.S. 421

Pennsylvania  v.  Wheeling and Belmont Bridge Company

The preceding order having been filed in the office of the clerk of the supreme court on the 27th day of June, a writ of injunction, with a certified copy of the decree of the supreme court, entered at May term, 1852, annexed thereto, was issued and delivered to the marshal of the District of Columbia, as follows:

THE UNITED STATES OF AMERICA.

In the Supreme Court of the United States, ss.

The President of the United States of America, to the Wheeling and Belmont Bridge Company, its president, managers, officers, engineers, agents, contractors, and servants, and to each and every of them, and to all persons whomsoever, greeting:

Whereas, the State of Pennsylvania hath made application before the Honorable R. C. Grier, one of the justices of the supreme court of the United States, for an injunction as prayed for in her bill of complaint exhibited before said justice, and filed in the supreme court of the United States:

And whereas, upon hearing of said application, the following order was made:--

[In the injunction, the preceding order was recited.]

We, therefore, having regard to the matter aforesaid, do strictly enjoin and command the said Wheeling and Belmont Bridge Company, its president, managers, officers, engineers, agents, contractors, and servants, and all persons acting by their instigation, authority, advice, procurement, or otherwise, to observe and obey the aforesaid order and injunction.

Hereof fail not, under the full penalty of the law thence ensuing.

Witness the Honorable Roger B. Taney, chief justice of the supreme court of the United States, this 28th day of June, A. D. 1854.

Attest, WM. THOMAS Clerk of the Supreme Court of the United States.

The writs of injunction being served upon the company by leaving a copy at its office and with its president and secretary, and also upon the managers of the company, they proceeded to erect the bridge notwithstanding the injunction, and it was completed in November.

At December term, 1854, the complainant, by her counsel, having given previous notice to the company, filed a motion for a sequestration against the company, for a contempt of court in disobeying the injunction, and a motion for an attachment against the officers personally for their contempt in disobeying the injunction. The motions were as follows:--

And now, to wit, at the December term, 1854, comes the State of Pennsylvania, by her attorney-general, and moves the court to order and direct a writ to be issued against the Wheeling and Belmont Bridge Company, to sequestrate its estate, real, personal, and mixed, and the rents, issues, and profits thereof, its privileges and franchises, goods, chattels, rights, credits, moneys, and effects, for a contempt of court, by breach of and disobedience to the lawful writ, process, orders, decree, and commands of the supreme court of the United States.

The breaches and disobedience to said writ, process, orders, decree, and commands aforesaid, are stated and charged specifically as follows:--

1. That after service upon the Wheeling and Belmont Bridge Company, by the marshal of the District of Columbia, of a copy of a writ of injunction issued out of said court, pursuant to an order of allowance made on the 26th day of June, 1854, by the Honorable R. C. Grier, one of the judges of the said supreme court, the said company have disobeyed said writ of injunction, and are engaged in doing and performing acts, and have caused and procured acts to be done, in disobedience of said injunction and of the process and authority of said court.

2. That after service upon said company by the marshal aforesaid, of a copy of the decree entered by said supreme court at the adjourned term of May, 1852, in the case of The State of Pennsylvania v. The Wheeling and Belmont Bridge Company and others, said company have disobeyed said decree.

3. That since the service of the writ of injunction and decree as aforesaid upon said company, said company have stretched, suspended, and placed, and caused and procured to be stretched, suspended, and placed, iron cables, ropes, wires, or chains, over and across the eastern channel of the Ohio River, between Zane's Island and the main Virginia shore, at Wheeling, in disobedience of said injunction; and have erected and constructed, and are engaged in creating and constructing, and in causing and procuring to be erected and constructed, a bridge over and across the said channel, at a less elevation than is prescribed by the said decree of the supreme court of the United States, entered as aforesaid, at the adjourned term of May, 1852, and in disobedience of said writ of injunction; and have kept and maintained, and are keeping and maintaining, cables, wires, chains, timbers, and planks suspended in, over, and across the said channel, at a less elevation than is prescribed by the decree aforesaid.

4. That since the service of said writ and decree as aforesaid, the said company have obstructed the free navigation of the said channel of the Ohio River, and have caused and procured the same to be obstructed, and are now keeping the same obstructed, in breach and disobedience of said writ of injunction and decree.

F. W. HUGHES, Attorney-General of Pennsylvania.

And now, to wit, at the December term, 1854, comes the State of Pennsylvania, by her attorney-general, and moves the court for an order that Charles Ellet, Jr., James Baker, and E. H. Fitzhugh stand committed to the jail of the District of Columbia, for a contempt of court, by breach of and disobedience to the lawful writ, process, order, decree, and commands of the supreme court of the United States.

[The breaches set out were the same as above.]

A motion for a writ of assistance to execute the decree of this court made in May, 1852, was also filed, praying the court to order and direct such a writ to the marshal of the District of Columbia.

A motion was also made for an award of execution for the costs decreed in May, 1852.

The defendants appeared by their counsel, and resisted the foregoing motions under the 6th and 7th sections of the act of congress, (10 Stat. at Large, 112,) entitled.

'An act making appropriations for the service of The Post-Office Department during the fiscal year ending the thirtieth of June, one thousand eight hundred and fifty-three, and for other purposes.

SEC. 6. And be it further enacted, 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.

SEC. 7. 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.

The defendants also moved to dissolve the injunction granted by Mr. Justice Grier.

At December term, 1854, these several motions came on to be heard, and were argued by Mr. Edwin M. Stanton, for the State of Pennsylvania and by Mr. Johnson and Mr. Charles M. Russell, for the defendants.

Mr. Stanton, for the complainant, made the following points, viz:--

1. That at the date of the passage of the act of congress legalizing the Wheeling Bridge, the State of Pennsylvania had by the judgment of the supreme court of the United States, 'a just and legal right to have the navigation of the Ohio River made free by the removal of the bridge, or by its alteration,' in conformity with the decree entered in May, 1852.

2. That this right is not taken away by congress declaring the bridge to be a 'lawful structure,' because congress has no judicial authority to review or reverse the judgment of the supreme court, and such declaration is not within the scope of the legislative authority of congress.

3. It is not taken away by the bridge being 'established as a post-road,' because under the power to establish post-roads, congress has no authority to construct or maintain a road within a State to the injury of private property or individual right.

4. It is not taken away by the requirements of the act imposing on vessels the duty 'not to interfere with the construction and elevation of the bridge,' because those requirements are imposed for an object not intrusted to the general government, nor in execution of its commercial power; and they operate to tax the exports of a State, and give a preference by a regulation of commerce to the ports of one State, over the ports of another.

5. It could not be taken away by any power of congress without just compensation, and none is rendered.

6. It was the duty of the defendants to obey the command of the court, by removing or altering their bridge as required by the decree; and for their disobedience, they are in contempt, and they are in further contempt by rebuilding the bridge in defiance of the decree, and of the injunction issued on the 27th of June, 1854, and should be dealt with accordingly by sequestration and attachment.

7. The decree of the court remains now in force, and the complainant is entitled to have it executed by writ of assistance and to have process to compel the payment of the costs awarded by the decree.

The counsel for the defendants made the following points, viz:

I. On the motion to dissolve the injunction.

1. The injunction was awarded without 'reasonable notice of the time and place' of the application. Act of March 2, 1793, § 5.

2. It was awarded by a judge of a different circuit from that in which it was to operate. Laws U.S.Courts, p. 34, note.

3. It was awarded without requiring bond and security to indemnify the defendant.

4. It was awarded on a bill filed either to carry on the proceedings in a pending suit, or to carry into effect a decree made in a former suit; and this bill does not lie, nor is it in proper form for either purpose. Story's Eq. Plead. § 352, 429; Adams v. Dowdings, 2 Madd, 53.

5. Congress has legalized the Wheeling Bridge; act of August 31, 1852; and had constitutional power to legalize it. See the opinions formerly delivered in the Wheeling Bridge case. The act may be sustained under the power to regulate commerce; Gibbons v. Ogden, 9 Wheat. 1; United States v. Coombs, 12 Pet. 72, (op. 78); or under the power to established postroads; or under both powers. And this, notwithstanding the compact between Virginia and Kentucky; Pollard's Lessee v. Hagam, 3 How. 212, (op. 229, 230;) The Society for propagating the Gospel v. Wheeler, 2 Gallis, C. C. R. 138; Evans v. Easton, 1 Pet. C. C. R. 322. But that compact does not apply.

6. A motion was offered to make absolute the decree in said bill mentioned, and was dismissed by this court for want of prosecution on the 15th day of December, 1853.

II. Against the motion for the writ of assistance.

The same authorities as above and hereafter cited.

III. Against motions for attachment and sequestration.

1. The evidence offered, does not show that the parties have been guilty of contempt.

2. The injunction was, and is a nullity, because awarded without notice, without requiring bond, and by a judge having no jurisdiction.

3. The injunction was not regularly issued, or served by proper officers.

4. The injunction did not point out the duties it required of the defendants with adequate certainty. In effect it commanded the defendants to observe the requirements of a decree which 'required' nothing such as the order of injunction vaguely seemed to assume that it did acquire. That decree was on its face interlocutory and left open the questions which the injunction may assume to have been decided. Birchett v. Bollings, 5 Munf. 442.

5. The court has no power to inflict summary punishment for disobedience to any mere order of a judge at chambers. Such disobedience can only be punished, if at all, by indictment. Act of 1831, c. 99, 4 Stats. at Large, 487.

M. Justice NELSON delivered the opinion of the court.

The motion in this case is founded upon a bill filed to carry into execution a decree of the court, rendered against the defendants at the adjourned term in May, 1852, which decree declared the bridge erected by them across the Ohio River, between Wheeling and Zane's Island, to be an obstruction of the free navigation of the said river, and thereby occasioned a special damage to the plaintiff, for which there was not an adequate remedy at law, and directed that the obstruction be removed, either by elevating the bridge to a height designated, or by abatement.

Since the rendition of this decree, and on the 31st August, 1852, an act of congress has been passed as follows: '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 positions and elevations, and shall be so held and taken to be any thing in the law or laws of the United States to the contrary notwithstanding.

And further: 'That the said bridges be 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 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 of any pipes or chimneys belonging thereto, so as not to interfere with the elevation and construction of said bridges.'

The defendants rely upon this act of congress as furnishing authority for the continuance of the bridge as constructed, and as superseding the effect and operation of the decree of the court previously rendered, declaring it an obstruction to the navigation.

On the part of the plaintiff, it is insisted that the act is unconstitutional and void, which raises the principal question in the case.

In order to a proper understanding of this question it is material to recur to the ground and principles upon which the majority of the court proceeded in rendering the decree now sought to be enforced.

The bridge had been constructed under an act of the legislature of the State of Virginia; and it was admitted that act conferred full authority upon the defendants for the erection, subject only to the power of congress in the regulation of commerce. It was claimed, however, that congress had acted upon the subject and had regulated the navigation of the Ohio River, and had thereby secured to the public, by virtue of its authority, the free and unobstructed use of the same; and that the erection of the bridge, so far as it interfered with the enjoyment of this use, was inconsistent with and in violation of the acts of congress, and destructive of the right derived under them; and that, to the extent of this interference with the free navigation of the river, the act of the legislature of Virginia afforded no authority or justification. It was in conflict with the acts of congress, which were the paramount law.

This being the view of the case taken by a majority of the court, they found no difficulty in arriving at the conclusion, that the obstruction of the navigation of the river, by the bridge, was a violation of the right secured to the public by the constitution and laws of congress, nor in applying the appropriate remedy in behalf of the plaintiff. The ground and principles upon which the court proceeded will be found reported in 13 How. 518.

Since, however, the rendition of this decree, the acts of congress, already referred to, have been passed, by which the bridge is made a post-road for the passage of the mails of the United States, and the defendants are authorized to have and maintain it at its present site and elevation, and requiring all persons navigating the river to regulate such navigation so as not to interfere with it.

So far, therefore, as this bridge created an obstruction to the free navigation of the river, in view of the previous acts of congress, they are to be regarded as modified by this subsequent legislation; and, although it still may be an obstruction in fact, is not so in the contemplation of law. We have already said, and the principle is undoubted, that the act of the legislature of Virginia conferred full authority to erect and maintain the bridge, subject to the exercise of the power of congress to regulate the navigation of the river. That body having in the exercise of this power, regulated the navigation consistent with its preservation and continuation, the authority to maintain it would seem to be complete. That authority combines the concurrent powers of both governments, state and federal, which, if not sufficient, certainly none can be found in our system of government.

We do not enter upon the question, whether or not congress possess the power, under the authority in the constitution, 'to establish post-offices and post-roads,' to legalize this bridge; for, conceding that no such powers can be derived from this clause, it must be admitted that it is, at least, necessarily included in the power conferred to regulate commerce among the several States. The regulation of commerce includes intercourse and navigation, and, of course, the power to determine what shall or shall not be deemed in judgment of law an obstruction to navigation; and that power, as we have seen, has been exercised consistent with the continuance of the bridge.

But it is urged, that the act of congress cannot have the effect and operation to annul the judgment of the court already rendered, or the rights determined thereby in favor of the plaintiff. This, as a general proposition, is certainly not to be denied, especially as it respects adjudication upon the private rights of parties. When they have passed into judgment the right becomes absolute, and it is the duty of the court to enforce it.

The case before us, however, is distinguishable from this class of cases, so far as it respects that portion of the decree directing the abatement of the bridge. Its interference with the free navigation of the river constituted an obstruction of a public right secured by acts of congress.

But, although this right of navigation be a public right common to all, yet, a private party sustaining special damage by the obstruction may, as has been held in this case, maintain an action at law against the party creating it, to recover his damages; or, to prevent irreparable injury, file a bill in chancery for the purpose of removing the obstruction. In both cases, the private right to damages, or to the removal, arises out of the unlawful interference with the enjoyment of the public right, which, as we have seen, is under the regulation of congress. Now, we agree, if the remedy in this case had been an action at law, and a judgment rendered in favor of the plaintiff for damages, the right to these would have passed beyond the reach of the power of congress. It would have depended, not upon the public right of the free navigation of the river, but upon the judgment of the court. The decree before us, so far as it respect the costs adjudged, stands upon the same principles, and is unaffected by the subsequent law. But that part of the decree, directing the abatement of the obstruction, is executory, a continuing decree, which requires not only the removal of the bridge, but enjoins the defendants against any reconstruction or continuance. Now, whether it is a future existing or continuing obstruction depends upon the question whether or not it interferes with the right of navigation. If, in the mean time, since the decree, this right has been modified by the competent authority, so that the bridge is no longer an unlawful obstruction, it is quite plain the decree of the court cannot be enforced. There is no longer any interference with the enjoyment of the public right inconsistent with law, no more than there would be where the plaintiff himself had consented to it, after the rendition of the decree. Suppose the decree had been executed, and after that the passage of the law in question, can it be doubted but that the defendants would have had a right to reconstruct it? And is it not equally clear that the right to maintain it, if not abated, existed from the moment of the enactment?

A class of cases that have frequently occurred in the state courts contain principles analogous to those involved in the present case. The purely internal streams of a State which are navigable belong to the riparian owners to the thread of the stream, and, as such, they have a right to use the waters and bed beneath, for their own private emolument, subject only to the public right of navigation. They may construct wharves or dams or canals for the purpose of subjecting the stream to the various uses to which it may be applied, subject to this public easement. But, if these structures materially interfere with the public right, the obstruction may be removed or abated as a public nuisance.

In respect to these purely internal streams of a State, the public right of navigation is exclusively under the control and regulation of the state legislature; and in cases where these erections or obstructions to the navigation are constructed under a law of the State, or sanctioned by legislative authority, they are neither a public nuisance subject to abatement, nor is the individual who may have sustained special damage from their interference with the public use entitled to any remedy for his loss. So far as the public use of the stream is concerned, the legislature having the power to control and regulate it, the statute authorizing the structure, though it may be a real impediment to the navigation, makes it lawful. 5 Wend. 448, 449; 15 Ib. 113; 17 T. R. 195; 20 Ib. 90, 101; 5 Cow. 165.

It is also urged that this act of congress is void, for the reason that it is inconsistent with the compact between the States of Virginia and Kentucky, at the time of the admission of the latter into the Union, by which it was agreed, 'that the use and navigation of the River Ohio, so far as the territory of the proposed, 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,' and which compact was assented to by congress at the time of the admission of the State.

This court held, in the case of Green et al. v. Biddle, 2 Wheat. 1, that an act of the legislature of Kentucky in contravention of the compact was null and void, within the provision of the constitution forbidding a State to pass any law impairing the obligation of contracts. But that is not the question here. The question here is, whether or not the compact can operate as a restriction upon the power of congress under the constitution to regulate commerce among the several States? Clearly not. Otherwise congress and two States would possess the power to modify and alter the constitution itself.

This is plain that it is unnecessary to pursue the argument further. But we may refer to the case of Wilson v. Mason, 1 Cranch, 88, 92, where it was held that this compact, which stipulated that rights acquired under the commonwealth of Virginia shall be decided according to the then existing laws, could not deprive congress of the power to regulate the appellate jurisdiction of this court, and prevent a review where none was given in the state law existing at the time of the compact. Again, it is insisted that the act of congress is void, as being inconsistent with the clause in the ninth section of article first of the constitution, which declares that 'no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another; nor shall vessels bound to or from one State be obliged to enter, clear, or pay duties in another.'

It is urged that the interruption of the navigation of the steamboats engaged in commerce and conveyance of passengers upon the Ohio River at Wheeling from the erection of the bridge, and the delay and expense arising therefrom, virtually operate to give a preference to this port over that of Pittsburg; that the vessels to and from Pittsburg navigating the Ohio and Mississippi rivers are not only subjected to this delay and expense in the course of the voyage, but that the obstruction will necessarily have the effect to stop the trade and business at Wheeling, or divert the same in some other direction or channel of commerce. Conceding all this to be true, a majority of the court are of opinion that the act of congress is not inconsistent with the clause of the constitution referred to-in other words, that is not giving a preference to the ports of one State over those of another, within the true meaning of that provision. There are many acts of congress passed in the exercise of this power to regulate commerce, providing for a special advantage to the port or ports of one State, and which very advantage may incidentally operate to the prejudice of the ports in a neighboring State, which have never been supposed to conflict with this limitation upon its power. The improvement of rivers and harbors, the erection of light-houses, and other facilities of commerce, may be referred to as examples. It will not do to say that the exercise of an admitted power of congress conferred by the constitution is to be withheld, if it appears, or can be shown, that the effect and operation of the law may incidentally extend beyond the limitation of the power. Upon any such interpretation, the principal object of the framers of the instrument in conferring the power would be sacrificed to the subordinate consequences resulting from its exercise. These consequences and incidents are very proper considerations to be urged upon congress for the purpose of dissuading that body from its exercise, but afford no ground for denying the power itself, or the right to exercise it.

The court are also of opinion that, according to the true exposition of this prohibition upon the power of congress, the law in question cannot be regarded as in conflict with it.

The propositions originally introduced into the convention, from which this clause in the constitution was derived, declared that congress shall not have power to compel vessels belonging to citizens or foreigners to enter or pay duties or imposts in any other State than that to which they were bound, nor to clear from any other than that in which their cargoes were laden. Nor shall any privilege or immunity be granted to any vessels on entering or clearing out, or paying duties or imposts, in one State in preference to another. Also, that congress shall not have power to fix or establish the particular ports for collecting the duties or imposts in any State, unless the State should neglect to fix them upon notice. I give merely the substance of the several propositions.

Luther Martin, in his letter to the legislature of Maryland, says that these propositions were introduced into the convention by the Maryland delegation; and that without them, he observes, it would have been in the power of congress to compel ships sailing in or out of the Chesapeake to clear or enter at Norfolk, or some port in Virginia-a regulation that would be injurious to the commerce of Maryland. It appears also, from the reports of the convention, that several of the delegates from that State expressed apprehensions that under the power to regulate commerce congress might favor ports of particular States, by requiring vessels destined to other States to enter and clear at the ports of the favored ones, as a vessel bound for Baltimore to enter and clear at Norfolk.

These several propositions finally took the form of the clause in question, namely: 'No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another; nor shall vessels bound to or from one State be obliged to enter or clear or pay duties in another.' 1 Elliot's Deb. 266, 270, 279, 280, 311, 375; 5 Ib. 478, 483, 502, 545.

The power to establish their ports of entry and clearance by the States was given up, and left to congress. But the rights of the States were secured, by the exemption of vessels from the necessity of entering or paying duties in the ports of any State other than that to which they were bound, or to obtain a clearance from any port other than at the home port, or that from which they sailed. And, also, by the provision that no preference should be given, by any regulation of commerce or revenue, to the ports of one State over those of another. So far as the regulation of revenue is concerned, the prohibition in the clause does not seem to have been very important, as, in a previous section, (8,) it was declared, that 'all duties, imposts, and excises, shall be uniform throughout the United States;' and, as to a preference by a regulation of commerce, the history of the provision, as well as its language, looks to a prohibition against granting privileges or immunities to vessels entering or clearing from the ports of one State over those of another. That these privileges and immunities, whatever they may be in the judgment of congress, shall be common and equal in all the ports of the several States. Thus much is undoubtedly embraced in the prohibition; and it may, certainly, also embrace any other description of legislation looking to a direct privilege or preference of the ports of any particular State over those of another. Indeed, the clause, in terms, seems to import a prohibition against some positive legislation by congress to this effect, and not against any incidental advantages that might possibly result from the legislation of congress upon other subjects connected with commerce, and confessedly within its power.

Besides, it is a mistake to assume that congress is forbidden to give a preference to a port in one State over a port in another. Such preference is given in every instance where it makes a port in one State a port of entry, and refuses to make another port in another State a port of entry. No greater preference, in one sense, can be more directly given than in this way; and yet, the power of congress to give such preference has never been questioned. Nor can it be without asserting that the moment congress makes a port in one State a port of entry, it is bound, at the same time, to make all other ports in all other States ports of entry. The truth seems to be, that what is forbidden is, not discrimination between individual ports within the same or different States, but discrimination between States; and if so, in order to bring this case within the prohibition, it is necessary to show, not merely discrimination between Pittsburg and Wheeling, but discrimination between the ports of Virginia and those of Pennsylvania.

Upon the whole, without pursuing the examination further, our conclusion is, that, so far as respects that portion of the decree which directs the alteration or abatement of the bridge, it cannot be carried into execution since the act of congress which regulates the navigation of the Ohio River, consistent with the existence and continuance of the bridge; and that this part of the motion, in behalf of the plaintiff, must be denied. But that, so far as respects that portion of the decree which directs the costs to be paid by the defendants, the motion must be granted.

A motion has also been made, on behalf of the plaintiff, for attachments against the president of the Bridge Company and others, for disobedience of an injunction issued by Mr. Justice Grier, in vacation, on the 27th June, 1854.

It appears that since the rendition of the decree of this court and the passage of the act of congress, and before any proceedings taken to enforce the execution of the decree, notwithstanding this act, the bridge was broken down, in a gale of wind, leaving only some of the cables suspended from the towers across the river. Upon the happening of this event, a bill was filed by the plaintiff, and an application for the injunction above mentioned was made, which was granted, enjoining the defendants, their officers and agents, against a reconstruction of the bridge, unless in conformity with the requirements of the previous decree in the case. The object of the injunction was to suspend the work, together with the great expenses attending it, until the determination of the question by this court as to the force and effect of the act of congress, in respect to the execution of the decree. The defendants did not appear upon the notice given of the motion for the injunction, and it was, consequently, granted without opposition.

After the writ was served, it was disobeyed, the defendants proceeding in the reconstruction of the bridge, which they had already begun before the issuing or service of the process.

A motion is now made for attachments against the persons mentioned for this disobedience and contempt.

A majority of the court are of opinion, inasmuch as we have arrived at the conclusion that the act of congress afforded full authority to the defendants to reconstruct the bridge, and the decree directing its alteration or abatement could not, therefore, be carried into execution after the enactment of this law, and inasmuch as the granting of an attachment for the disobedience is a question resting in the discretion of the court, that, under all the circumstances of the case, the motion should be denied.

Some of the judges also entertain doubts as to the regularity of the proceedings in pursuance of which the injunction was issued.

Mr. Justice WAYNE, Mr. Justice GRIER, and Mr. Justice CURTIS, are of opinion that, upon the case presented, the attachment for contempt should issue, and in which opinion I concur.

The motion for the attachment is denied, and the injunction dissolved.

Mr. Justice GRIER.

I concur with the majority of this court, that in cases where this court has original jurisdiction, an interlocutory or preliminary injunction may be awarded, in vacation, by any judge of the court. I differ with the majority in declining to punish a wanton contempt of the process of the court.

I concur with my brother McLean, that congress cannot annul or vacate any decree of this court; that the assumption of such a power is without precedent, and, as a precedent for the future, it is of dangerous example.

Mr. Justice WAYNE.

I concur with Mr. Justices Nelson, Grier, and Curtis, in thinking that the attachment for contempt should have been granted by this court.

I concur with the majority of the court in the view taken by them of the liability of the defendants for the costs of this suit.

I dissent from the majority of the court in the opinion given, that the 6th and 7th sections of the act of the 31st August, 1852, (10 Stats. at Large, 112,) relieve the defendants from the operation of the judgment of this court in behalf of the plaintiff. That judgment was for the abatement of a nuisance of which the plaintiff complained. This court decided it was a nuisance, causing injury and great pecuniary loss, inasmuch as it prevented the State of Pennsylvania from navigating the Ohio River at all stages of its waters, to the uninterrupted navigation of which they had a right under the constitution of the United States. I know of no power in congress to interfere with such a judgment, under the pretence of a power to legalize the structure of bridges over the public navigable rivers of the United States, either within the States, or dividing States from each other, or under the commercial power of congress to regulate commerce among the States. Nor does the power of congress to establish post-offices and post-roads give any power to congress to do more between the States, or within the States, than to declare the routes for carrying the mails upon roads already existing, and to designate the localities upon those roads where post-offices shall be kept for the delivery and transmission of letters, and other things or parcels which congress may declare to be mailable. Whatever congress may have intended by the act of August, 1852, I do not think it admits of the interpretation given to it by the majority of the court; and if it does, then my opinion is that the act would be unconstitutional.

I concur with many of the views taken by Mr. Justice McLean in his dissenting opinion; but I shall take another opportunity to express my opinion fully upon the action of this court and of congress in this case.

This cause came on to be heard upon the bill of complaint, an order by the Honorable R. C. Grier, an associate justice of this court, on the 23th day of June, 1854, granting an injunction as prayed for in the said bill, and upon the motion by the complainant for writs of assistance, of sequestration, and of attachment against the said respondent, and upon a motion by the respondent to dissolve the said injunction, and was fully argued by counsel on both sides; upon consideration whereof, and after mature deliberation thereupon had, it is now here ordered and decreed by this court that the said motion by the said complainant for writs of assistance, of sequestration, and of attachment, be and the same is hereby overruled, and that the said injunction, so as aforesaid granted, be and the same is hereby dissolved.

Notes