Ohio History Journal

Ohio Valley Hist. Assn, Fifth Annual Meeting.          101

 

that will stop short of nothing that is humanly possible.  China is

arousing herself to a new national life that contains possibilities of the

most tremendous scope. America and China are natural complements

to each other. The Yangtse and Mississippi Valleys have more in

common than any other two equal tracts of country in the world.

The concluding paper of the morning was read by George

Cowles Lay of New York. The portion relating to the Ohio

Valley reads as follows:

 

 

INTERSTATE CONTROVERSIES ARISING FROM INJURIES

TO COMMERCE, NAVIGATION AND PUBLIC HEALTH.

BY GEORGE COWLES LAY.

By the Federal Constitution, the States are prohibited from enter-

ing into any treaty, alliance or confederation, or any agreement or

contract with another state or with a foreign power without consent

of Congress and in any case from engaging in war, unless actually in-

vaded or in imminent danger.

The states are thus debarred, in case of disputes, from the remedies

of diplomacy or the resort to arms, while acting under the Constitu-

tion.

Alexander Hamilton in the Federalist, with prophetic insight, antici-

pated "many other sources, besides interfering claims of boundary, from

which bickerings and animosity may spring up among the members

of the Union."*

So the history and development of the country have produced

many kinds of controversies, which among foreign states might have

resulted in wars and treaties but which have been happily settled by

judicial decisions. These disputes have arisen between States as far

removed from each other as South Dakota and North Carolina, and

as New Hampshire and Louisiana, over liabilities on State bonds, but

have chiefly affected adjoining states, whose citizens have been subject

to injuries affecting commerce, navigation and public health.

Where the health or material prosperity of inhabitants of a state

have been threatened by contamination of its waterways by diversion

or unreasonable use of navigable rivers flowing through several states,

by embargoes against passengers and freight in times of epidemic, or

by obstructions to commerce, the interference of the Supreme Court

has been sought in several cases of interest.

The principles governing this class of cases are the same as those

regulating the rights and remedies of individuals. The complaining

 

*The Federalist, Vol. LXXX.

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102        Ohio Arch. and Hist. Society Publications.

 

State seeks an injunction against unlawful acts threatened or com-

mitted and prays for an abatement of the nuisances, or for the redress

of grievances.

One of the most important cases and most interesting to people

of the Ohio Valley is the controversy over the bridge at Wheeling-

about 1850 the State of Pennsylvania brought suit against Wheeling and

Belmont Bridge Company in the U. S. Supreme Court.¹

This so-called "Belmont Bridge" case arose from a conflict be-

tween the interests of steamboat navigation and overland transporta-

tion. In 1847 the state of Virginia granted a charter to the Wheeling

& Belmont Bridge Company authorizing the construction of a wire

suspension bridge over the Ohio River at Wheeling and providing

that if the bridge should obstruct navigation it should be treated as

a public nuisance. Under this authority the Bridge Company proceeded

to erect a highway bridge, from Wheeling to Zane's Island, the highest

point of which was about 92 feet above low water; this height, how-

ever, was maintained only for a space of 100 feet in the middle of the

channel and was gradually reduced to about 64 feet at the extremities

of the structure.

It was claimed by Pennsylvania in a suit brought in the United

States Supreme Court to abate the nuisance, that the bridge was an ob-

struction to the navigation of the Ohio River, that it interfered with the

passage of large and swift packets plying between Pittsburgh and Cin-

cinnati, especially when the water was higher than 20 feet over low

water line. In the time of spring and fall floods the water rose to a

height of 30 to 38 feet and the space for the passage of steamers with

chimneys 74 feet high was claimed to be wholly insufficient.

It was shown that by various Acts of Congress the use and naviga-

tion of the Ohio was to be at all times free to all citizens of the United

States.

The Northwest ordinance of 1787 providing for the government of

the territory northwest of the river Ohio was quoted.

The fourth article of this famous document provides as follows:

"The navigable waters leading into the Mississippi and St. Lawrence and

the carrying places between the same, shall be common highways and

forever free as well to the inhabitants of the said territory as to the

citizens of the United States and those of any other states that may

be admitted into the confederacy, without any tax, import or duty

whatever."*

 

1Pennsylvania vs. The Wheeling & Belmont Bridge Co., 13 How.

518; 18 How. 421.

*It is interesting to note that this language is almost identical with

that of a resolution offered by Mr. Grayson of Va. in Congress in May,

1786 (Journal of Congress, 1786, p. 637).

Documents Illustrative of American History (p. 248) by Howard

W. Preston, 1893.

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Ohio Valley Hist. Ass'n, Fifth Annual Meeting.          103

 

It was pointed out that upon the admission of the states bordering

upon these waters into the Union similar conditions were imposed and

upon the admission of Kentucky as a state in 1789 the navigation of

Ohio River was declared to be free and common to the citizens of

the United States.

In the argument of Edwin M. Stanton, Counsel for Pennsylvania,

the Ohio was described "as the boundary of six states, its waters drain-

ing a large territory of four other states, flowing in a southwest direc-

tion from the Allegheny mountains to the Mississippi, presenting to

the navigator a broad and placid stream, one thousand miles in length,

more free from dangers and obstructions than any other navigable river

in the world."

Pennsylvania claimed that she had constructed great public works,

such as canals and railroads, stretching East from Pittsburgh, whereby

the products of the south and west and of the Pacific Coast were trans-

ported to Philadelphia for an eastern and foreign market, and foreign

merchandise and eastern manufactures were transported by the same

channels to Pittsburgh, thence to be carried south and west by steam-

boats on the Ohio and thence by way of the Mississippi to the Gulf.

All this commerce was obstructed by a bridge, which did not admit of

the passage of steamboats freely and without delay and expense.

The Bridge Company answered that the bridge was a connecting

link of a great public highway as important as the navigation of the

Ohio; that the bridge was not an appreciable inconvenience to the

average class of boats, and that the tall chimneys upon the largest

packets might be supplied with hinges or lowered or dispensed with

altogether by the use of blowers for a forced draught. The public

highway across the bridge was a continuation of the National Road,

used so extensively by the early pioneers.

The Supreme Court referred two questions for determination to

Hon. Reuben H. Walworth, former Chancellor of New York, as Special

Commissioner:

(1) Whether the bridge was an obstruction to the free navigation

of the Ohio and (2) if an obstruction, what alteration should be made

to the bridge to facilitate navigation.

The Commissioner reported the bridge to be an obstruction and

recommended that the flooring be raised so as to give a level highway

at least 30 feet wide and not less than 120 feet above low water.

The Supreme Court held that Pennsylvania had the right to in-

voke the jurisdiction of the Court, not because its sovereignty was

involved but because it had the same interest in protecting its property

and redressing its wrongs as an individual, and the only privilege it

enjoyed over individuals, due to its dignity as a State, was to bring an

original suit in the Supreme Court to abate the nuisance.

The Court then declared that if viaducts for railroads and bridges

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104       Ohio Arch. and Hist. Society Publications.

 

must be thrown over the Ohio for the accommodation of the numerous

and rising cities upon its banks, they should not be so built as mate-

rially to obstruct its commerce, and that the bridge in question was

a menace to navigation and should be so altered as to provide for a

height of 111 feet above low water for a distance of 300 feet over

the channel of the River. The Court passed a decree, directing the

abatement of the bridge or an alteration as above stated, or the re-

moval of the obstructions in the western Channel at the option of the

Bridge Company, which was given an opportunity to make the changes

or improvements suggested.

While the Pennsylvania interests were thus successful in obtaining

a decree of the highest court of the land which provided for the re-

moval of the obstructions, Congress interposed and passed an Act in

August, 1852, which provided as follows:

That the bridges over the Ohio at Wheeling in the State of Vir-

ginia 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 notwith-

standing, 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 author-

ized to have and maintain their bridges at their present site and eleva-

tion, 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.

A sharp conflict between the legislative and judicial Departments

of the Government was thus precipitated.

After the Act was passed, the suspension bridge was blown down

in a gale of wind and the Company proceeded to reconstruct it, when

the State of Pennsylvania applied to the Supreme Court for an in-

junction, which was granted. The Bridge Company disregarded the

injunction and then a motion was made by Pennsylvania for an attach-

ment for contempt, and thus the question of the power of Congress

to override a decree of the Supreme Court was presented to that tri-

bunal.¹ The case affords an admirable instance of the good sense of a

 

NOTE: This struggle between the steamboat men and the railroads

continued for many years and was renewed upon the erection of other

bridges over the Ohio and the Mississippi. Tall chimneys were sought

to be protected, until it was discovered by a steamboat captain on the

Mississippi, who, in order to test the law, ran his steamer at full speed

under one of the bridges and broke his chimney in the middle, that while

the draft was increased, the steamer consumed much less coal and by a

slight reduction of speed accomplished its voyage with greater economy.

He ceased to be an advocate of tall chimneys after this accident.

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Ohio Valley Hist. Ass'n, Fifth Annual Meeting.         105

 

majority of the court in preserving the proper balance between co-

ordinate branches of the government and calmly yielding to the con-

stitutional powers of Congress, when it might have been expected that

the Court would not have tolerated any interference with its decrees.

Indeed the Court declared that an Act of Congress could not

have the effect to annul a judgment of the court affecting private rights

and that had the remedy in the case been an action at law and had a

judgment been rendered for money damages the right to these would

have passed beyond the power of Congress-such right depending not

Upon the public right of the free navigation of the river, but upon the

judgment of the court. The court very frankly stated that the bridge

had been declared to be an obstruction to the free navigation of the

river in view of previous acts of Congress, providing that the navigation

of the river should be free and common to all citizens, but the subse-

quent legislation was to be regarded as modifying the former law and

although the bridge was still an obstruction in fact it was not so in

contemplation of law.

The court therefore held that after the passage of this Act the

bridge was no longer an unlawful obstruction as the right of naviga-

tion had been modified by competent authority and that the decree for

the abatement of the bridge could not be enforced.

This case in its final result is of striking interest in emphasizing

the paramount power of Congress in matters committed to it under the

constitution and in demonstrating the practical wisdom and admirable

self control of the judicial branch of our government in a peculiar

exigency, where the temptation to resist an apparent usurpation of

Congress was strong and not easily overcome.

That the powers of Congress are adapted to new conditions and

new developments of commerce is well stated by the Supreme Court in

another case as follows:l

"The powers thus granted are not confined to the instrumentalities

of commerce or the postal service known or in use when the Consti-

tution was adopted, but they keep pace with the progress of the country

and adapt themselves to the new development of time and circum-

stances. They extend from the horse with its rider to the stage coach,

from the sailing vessel to the steamboat, from the coach and the steam-

boat to the railroad and from the railroad to the telegraph as these

new agencies are successively brought into use to meet the demands

of increasing population and wealth."

At the Wednesday afternoon session the following three

papers were read. The first two, concerning the erection of an

 

NOTE: 18 How. 421.

1Pensacola Tel. Co. vs. West. Union Tel. Co. 96 U. S.

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