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by drunkenness. The prisons, almshouses and insti- ture of intoxicating liquors, except for sale for metutions for the care of orphanage, insanity and affic chanical, medicinal, culinary and sacramental purtion are largely filled by the vice. Tbese are evils, poses, under regulations as prescribed by the statute. but not all of the evils, of the alcohol habit, affecting The prohibition of the manufacture is a means to efthe social condition of the people, and their comforts fectuate the prohibition of the sale. The use of all and good morals. But other evils attending the use means to accomplish the end, not forbidden by con. of intoxicating beverage affect the State and its gov stitutioual restriction, rests in the discretion of the erument. It is the prolific source of crime, pauper legislative department of the State government. The ism and insanity, and thereby entails taxation to de courts cannot review the exercise of this discretion. fray the expenses of the conviction and punishment But the prohibition of the manufacture of intoxiof criminals, and the support of almshouses, asylums cating liquor may be supported upon the ground that and hospitals. It deteriorates mentally and physi per se it has a deleterious effect upon good order, and cally the human stock, rendering its victims, as well the peace, comfort and morals of the people of the as their progeny, less capable of bearing arms in de State. The manufacture of an article so pernicious in fonse of their country, and of discharging other du its use as a beverage cannot be consistently authorties of the citizens. Soldiers are unfitted for duty by ized while its sale is forbidden. It would be as an efit, and thereby battles have been lost, and the liberty fort to stay the flow of a stream, when its very source of nations, if not lost, has been imperilled. Tradition should be destroyed. The manufacture in the State perpetuates, if history does not fully record, the evils would offer inducements for the violation of the law wbich have flowed from the alcohol habit of officers prohibiting sales, and would afford opportunities for and soldiers of our own armies. Washington strug the creation and gratification of the appetites by, at gled with difficulties occasioned by it, and other com
least, those engaged in and connected with it. For mauders of later days have had a like experience,
other reasons, which need not be stated, the Legislawhile patriotic soldiers have suffered on account of lature esteemed the manufacture to be an evil which inebriety of officers in all branches of the military ser ought to be suppressed. vice. The appetite for strong drink, possessed by 80 But counsel insist that alcohol, which was alono many of our countrymen, demands constant gratifi manufactured by defendant, is nct commonly used as oation, and the expenditure therefor of enormous a beverage. The statement may be admitted to be bums of money, thus creating a business-the keeping true. But it is largely so used by people of some naof saloons and dram-shops, in which are employed an tionalities who have become citizens of the United immense number of men. Their business and their States, and often used by others. By the simple prorelations with the idle and dangerous classes of society cess of dilution of alcohol a beverage is made palatagive them great influence in public affairs. The mu ble enough to the victims of the appetite for strong nicipal governments of the cities, often burdened drink, which may become the common drink of inewith debts, and robbed by unfaithful and mercenary briates. officers, in all departments, give evidence of the direc 1 Counsel argue, as we understand them, that as the tion ia which this influence is exerted. Thinking men | manufacture of alcohol is permitted for sale for law. of this day largely concur in the opinion that the in ful purposes within the State, it does, when manufacfluence of the saloon, and the idleuess and vice of the tured for exportation, not a lawful purpose, become multitude of its clientage, united, constitute the great property, and then its exportation, a purpose forbidperil of American institutions. We think none will den by the statute, becomes lawful on the ground that deny that nothing but evil flows from this source. the restriction upon its use is an interference with the
That the State possesses the power, in the exercise rights of property. But conceding that alcohol, withof its polioe authority, to strike at the alcohol habit by out regard to the purpose of its manufacture, is propregulating or totally suppressing the sale of intoxicat erty, it does not follow that its uses may not be remug liquors for use as a beverage, is admitted on all stricted by the State in the exercise of its police auhands. We do not understand that counsel for de thority. While the State may not deprive the citizen fendanto deny it. All the courts of the Union, Fed of his property, it may forbid its use for purposes eral and State, which have passed upon the question, which are subversive of the peace, order and morals uuite in sustaining this authority. See, for a citation of the people, and destructive of health and of these cases, Cooley Const. Lim. 582, 583, and notes, life. Counsel refer to statutes forbidding the manuand the first series and annual volumes of the United facture of oleomargarine and glucose, and express the States Digest. The power to prohibit the sale of in opinion that they are not in conflict with constitutoxicating liquors has been exercised by many States, tional provisions upon which they rely, to defeat the aud traffic thereiu with Indians has been prohibited statute under consideration in this case. We can disby statutes of the United States, and of this and other cover no distinction between the statute under conStates. The preservation of order in the Indian tribes sideration and the statutes referred to by counsel, and peace between them and the frontier settlers, the which are doubtless based on the ground that the arprevention of famine and disease, and the preserva ticles prohibited are detrimental to health, or their tion of the very existence of these savages, are the hu- production is in conflict with the interests of the peomane objects of these statutes.
ple and the policy of the State enacting them. The same purpose demands legislation to protect the But the use of property may be restricted for purinebriates among our own countrymen, probably poses connected with trade and other interests of the equalling in number all the Indian tribes, from the de people. An illustration of legislation of this characstructive oonsequences of the gratification of their ap ter is found in our game law, which forbids the transpetites for strong drink, which is no less uncontrollable portation out of the State of any game killed within in them than in the Indians. Surely humanity and it. Yet the killing of game is permitted, with repatriotism demand that the same protection be ex-strictions as to time and quantity or number killed. tended to this unfortunate class of citizens of the The sportsman may lawfully kill the prescribed num. United States which is secured to the savage wards of ber within the lawful time. The game becomes his our government.
property, yet he cannot transport it out of the State. In the exercise of the power to suppress saloons and We have never heard doubts expressed as to its conprohibit the sale of intoxicating liquors as a beverage, stitutionality. A little consideration will disclose its the Legislature of this State, in the constitutional ex. close similarity to the statute forbidding the transpor eroise of its discretion, bas forbidden the manufac- tation of intoxicating liquor,
[Omitting some minor considerations.)
The Staten Island Rapid Transit Railroad Company, We have considered all questions arising in the case, / a corporation of New York, one of the defendants, and reach the conclusion that the decree of the Dis | claims the right to build the bridge in question, and trict Court ought to be affirmed.
to occupy the lands under water necessary for the SEEVERS and REED, JJ., dissenting.
support of its piers, under an act of Congress, approved June 16, 1886, entitled "An act to authorize
the construction of a bridge across the Staten Island CONSTITUTIONAL LAW-POWER“ TO REGU Sound, known as 'Arthur Kill,' and to establish the LATE COMMERCE"-INTER-STATE
same as a post-road." This act declares: BRIDGE.
"Section 1. That it shall be lawful for the Staten
Island Rapid Transit Company, a corporation existUNITED STATES CIRCUIT COURT DISTRICT OF NEW
ing under the laws of the State of New York, and the JERSEY, AUGUST 1, 1887.
Baltimore & New York Railroad Company, a corpo
ration existing under the laws of the State of New STOCKTON, Atty.-Gen. of New Jersey, V. BALTIMORE
Jersey, or either of said companies, to build and & N. Y. R. Co.
maintain a bridge across the Staten Island Sound, or
Arthur Kill, from New Jersey to Richmond county, The act of Congress of June 16, 1886, authorizing the Staten
New York, for the passage of railroad trains, engines Island Rapid Transit Company, a corporation of New
and cars thereon, and to lay on and over said bridge York, and the Baltimore & New York Railroad Company,
railway tracks for the more perfect connection of any a corporation of New Jersey, or either of them, to con
railroads that are or shall be constructed to the said struct and maintain a railroad bridge across the Staten
sound at or opposite said point; and in case of any Island Sound, known as “Arthur Kill," and establishing
litigation concerning any alleged obstruction to the "the same as a post-road," is within the power "to regu. ee navigation of said sound on account of said late commerce" vested in Congress by the Constitution
bridge, the cause may be tried before the Circuit of the United States, and may be exercised without the
Court of the United States of either of said States in consent or concurrence of the States in which the struc
which any portion of said obstruction or bridge ture is authorized by the act to be placed.
touches, and that all railway companies desiring to The grant is, in effect, a grant of the mere use of the soil
use the said bridge shall have and be entitled to equal needed for the structure, and not an assumption of ex
rights and privileges in the passage over the same, clusive jurisdiction over such territory. Cession of the
and in the use of the machinery and fixtures thereof, soil by the State in which the land lies is therefore not
aud of all the approaches thereto, for a reasonable necessary to the exercise of the privilege.
compensation, to be paid to the owners of said bridge The New Jersey act of April 6, 1886, prohibiting any person
under and upon such terms and conditions as shall be or corporation from erecting any bridge, etc., over or in
prescribed by the secretary of war upon hearing the any part of the navigable waters where the tide ebbs and
| allegations and proofs of the parties, in case they flows, and separating that Ştate from other States with
shall not agree. out permission from the Legislature of that State, is un “Sec. 2. That said bridge shall be constructed as a constitutional as against the Staten Island Rapid Transit
pivot draw-bridge, with a draw over the main channel Company, claiming to exercise the privilege conferred of the sound at an accessible and navigable point, and upon it by the above act of Congress.
with spans of not less than two hundred feet in The shore and lands under water of the navigable streams length in the clear on each side of the central or pivot
and waters of New Jersey, which prior to the Revolution, pier of the draw; and said spans shall not be less than belonged to the king of Great Britaiu as part of the jura | thirty-two feet above mean low-water mark, measurregalia of the crown, passed to the State at the close of ing to the lowest member of the bridge au perstructhat war, but the State succeeded to them as trustee of ture; and provided also that said draw shall be the people at large ; and the right of the State therein opened promptly upon signal, except when trains are not being such property as is susceptible of pecuniary passing over the said bridge, for the passage of boats compensation, it is not “private property” within the whose construction shall not be such as to admit of meaning of the Constitution of the United States, amend their passage under the draw of said bridge when 6, providing that private property shall not be taken for closed; but in no case shall unnecessary delay occur public use without just compensation,
in opening the said draw after the passage of trains; IN bill for injunction.
and the said company or corporation shall maintain
at its own expense, from sunset to sunrise, such lights John P. Stockton, attorney-general, Barker Gum
or other rignals on said bridge as the lighthouse board mere and Cortlandt Parker, for informant.
“Sec. 3. That any bridge constructed under this A. Q. Keasbey and W. W. Macfarland, for defend
act, and according to its limitations, shall be a lawful ante.
structure, and shall be recognized and known as a BRADLEY, J. This case was commenced by infor- post-route, upon which also no higher charge shall be mation filed by the attorney-general of New Jersey, made for the transmission over the same of the in the Court of Chancery of that State, praying for an mails, the troops, and the munitions of
mails, the troops, and the munitions of war of the injunction to restrain the defendants from erecting a United States than the rate per mile paid for their bridge across Arthur Kill, between New Jersey und transportation over the railroads or public highways Staten Island, in the State of New York, upon the leading to said bridge, and the United States shall have lands of the State situate on the shore, and under the the right of way for postal telegraph purposes across waters of said kill. The chancellor granted a prelimi-said bridge. pary injunction upon the bill any affidavits. The de “Sec. 4. That the plan and location of said bridge, fendants have removed the case to this court, as one with a detailed map of the sound at the proposed site arising under the Constitution and laws of the United of the bridge, and near thereto, exhibiting the depths States, and have filed an answer. Motion was then and currents, shall be submitted to the secretary of made to dissolve the injunction, but after argument, war for his approval, and until he approve the plan the parties stipulated to submit the case as upon final and location of said bridge it shall not be built; but hearing on bill and answer. There are no contro. upon the approval of said plan by the secretary of verted facts in the case.
war, the said companies, or either of them, may pro
ceed to the erection of said bridge in conformity with mission to erect the proposed bridge, so far as Consaid approved plan; and should any change be made gress, the conservator of navigation, is concerned, in the plan of said bridge during the progress of the leaving the companies to obtain from the State the work thereon, such change shall be subject likewise usual authority to build the bridge on the territory to the approval of the secretary of war. If the secre- and lands of the State; but that if the act should be tary of war shall at any time deem any change or al. construed as giving authority to erect the bridge teration necessary in the said bridge so that the same without the consent of the State, aud without comshall not obstruct navigation, or if he shall think the pensation for taking its lands therefor, then it is vioremoval of the whole structure necessary, the altera | lative of the Constitution of the United States, not tion so required, or the removal of the whole structure only for authorizing the lands of the State to be taken shall be made at the expense of the parties owning without compensation, but for eularging the powers said bridge. And if said bridge shall not be finished of a corporation created by the State itself (it the within two years from the passage of this act, the bridge should be built by the Baltimore & New York rights and privileges hereby granted shall determine Railroad Company), and authorizing it to do what, and cease.
by its own charter and other laws of the Stato, it is “Sec. 5. That the right to alter, amend or repeal | prohibited from doing. this act is hereby expressly reserved.”
The information further contends that the other The said Staten Island Rapid Transit Railroad corporation defendant, the Staten Island Rapid Company proposes to build a bridge across Arthur Transit Company, is not a corporation of New JerKill, under and in conformity with this act, to con
sey, and has no authority from the State to exercise nect its own road on Staten Island with another rail
any corporate franchises therein, and cannot lawfully road through and across the State of New Jersey, for
do so, except by the comity of the State, which has the purpose of inter-State transportation; and in pur- not been accorded to it; that instead of any such suance of that design, bas adopted a site for the loca- comity having been exercised, the said company is tion of the bridge, from a certain point in the city of expressly prohibited from exercising any such powers Elizabeth to Staten Island; and has caused the plan or franchises as that of building said bridge by an act and location of said bridge, with a detailed map of of the Legislature of New Jersey, passed April 6, 1886, the sound at and near the same (as required by the
which prohibits any person or corporation from erectact) to be submitted to the secretary of war, who has
ing any bridge, viaduct, or fixed structure over or in approved the same.
any part of the pavigable waters where the tide ebbs The company, by its engineer and contractors (who and flows, and separating said State from other are made co-defendants in the case),proceeded to make States, without permission of the Legislature of New preparations for laying the piers and erecting the Jersey first given by statute for that purpose, and bridge according to the plan thus approved. There. that no such permission has ever been asked or given. upon the attorney-general of New Jersey, deeming The answer of the defendants does not advance any the property rights and sovereignty of the State in material new facts, except to state that the Baltimore danger of violation from the erection of the proposed & New York Railroad Company has nothing to do bridge, filed the present information to prevent it. with the proposed building of the bridge, and that
The information states the ordinary doctrine that the Staten Island Rapid Transit Railroad Company the State is owner of the shore and laud under water proposes to build it as a connecting link in a line of of all navigable streams and arms of the sea within railroad extending from the Bay of New York across its borders; that this ownership was a part of the the soil of the States of New York, New Jersey, Pennjura regalia of the king of Great Britain, by virtue of sylvania and other States, as an instrument of comwhich he was seized and possessed of an estate in fee merce among the States, and claims the right to do so simple absolute in said lands; and that at the Revo under the act of Congress before recited. lution this State, in its sovereign capacity, succeeded The first question to be examined is the true conto the rights of the crown, and that this right of su struction of the act of Congress on which the case premo dominion had never been ceded or surrend- arises-the informant contending that it is merely ored to the United States, and that without such ces- permissive in its character; and the defendants, that sion or surrender the United States could not take it gives authority and power to build a bridge, withpossession of said lands, or authorize other parties to aut reference to any authority from the State. This do so, except by making compensation therefor, as question need not detain us long. The words of the provided in the fifth amendment to the Constitution, act are broad enough to confer the authority, if Conand that at the place of location of the proposed gress had power to coufer it. The language is: “It bridge their ownership of the soil, on the part of the shall be lawful for the Staten Island Rapid Transit State, extended from ordinary high-water mark to Railroad Company,” etc., “to build and maintain a the center line of the sound, being the boundary line | bridge across the Staten Island Sound, or Arthur Kill." between New Jersey and New York, as settled by This is the ordinary language used for conferring auagreement in 1833, and confirmed by act of Congress, thority. Had the State Legislature passed a law in June 28, 1834.
these terms, there could not be a doubt of its suffiThe information further statee that this ownership ciency to give authority. And there are expressions on the part of the State has been practically exer in the act which imply that plenary authority was incised by it for more than a century past, by regulating tended to be given. The minute directions laid down the enjoyment and disposition of the lands under the as to the manuer of construction and use of the navigable waters within its limits, passing laws for bridge imply this. The third section declares “that the preservation and protection of the oyster fisher | any bridge constructed under this act, and according ies therein, and authorizing the construction of to its limitations, shall be a lawful structure," etc.; wharves, with solid filling, to certain prescribed lim implying that the construction of the bridge, when its beyond low-water mark, and that for these privi built, would be under the act. If Congress had no leges the grantees are required to pay, and have paid, power to authorize the construction of the bridge, a certain compensation to the State. It is coutended independent of State legislation, the act would of by the informant that the act of Congress cannot be course be properly construed as permissive in its construed as intending to give any authority to take character, ancillary to, or confirmatory of, State legiga any portion of said lands without compensation; that lation which might be adopted for the purpose of au-, said act must be construed as a mere license or per- thorizing such a bridge. In other words, the act, within the scope of its terms, may have such effect | time of the formation of the Constitution a large part given to it as oom ports with the power of the legisla- of the commerce of the world was carried ou by cortive body which enacted it; just as a deed of couvey | porations. The East India Company, the Hudson's ance may operate as a grant, a bargain and sale, a re- Bay Company, the Hamburgh Company, the Levant lease, or a confirmation, according to the interest of Company and the Virginia Company, may be named the graptor on the one hand, and of the grantee on among the many corporations then in existence which the other. The construction of the act therefore de acquired, from the extent of their operations, celebpends on the power of Congress, which will be exam rity throughout the commercial world. This state of ined hereafter.
facts forbids the supposition that it was intended, in Another question of a preliminary character relates the graut of power to Congress, to exclude from its to the capacity and right of the defendant, the Staten control the commerce of corporations. The language Island Rapid Transit Railroad Company, to perform of the grant makes no reference to the instrumentalany acts and transact any business as a corporation in ity by which commerce may be carried on; it is genNew Jersey. It is argued that corporations, as such, eral, and includes alike commerce by individuals, have no legal existence outside of the State by whose partnerships, associations and corporations." laws they are created, and cannot transact business in We may fairly supplement this language by adding, another State except by the comity of its laws, which | that when the Constitution was adopted, it could not is not accorded in the present case. This doctrine have been supposed that the regulations of commerce is subjeot to much qualification. The babits of busi- to be made by Congress might be of no avail to com. ness have so changed since the decision in the case of mercial corporations, or at least might be rendered Bank of Augusta v. Earle, 13 Pet. 519, and corporate nugatory with regard to them, in consequence of organizations have been found so convenient, espec- | State restrictions upon their power to act as corporaially as avoiding a dissolution at every change of tions in any other State than that of their origin. membership, that a large part of the business of the At all events, if Congress, in the execution of its country has come to be transacted by their instru- powers, chooses to employ the intervention of a proper mentality; while their most objectionable feature, the corporation, whether of the State, or out of the State, pon-liability of corporators, has in most instances we see no reason why it should not do so. There is been abrogated in whole or in part; and to deny their nothing in the Constitution to prevent it from makadmission from one State to another in ordinary ing contracts with or conferring powers upon State cases, at the present day, would go far to neutralize corporations, for carrying out its own legitimate purthat provision in the fourth article of the Constitu poses. What right of the State would be invaded? The tion, which secures to the citizens of one State all the corporation thus employed, or empowered, in executprivileges and immunities of citizens'in another, and ing the will of Congress, could do nothing which the that provision of the fourteenth amendment which State could rightfully oppose or object to. It may be secures to all persons the equal protection of the laws. added that no State corporation more suitable than So strongly is this felt, that in the recent case of Santa the defendant could be empowered to build the bridge Clara Co. v. Southern Pacific R.Co., 118 U. S. 394, 396; in question in this case, since one-half of the bridge is 6 Sup. Ct. Rep. 1132, the doctrine that corporations in the State of New York, and the railroad of the deare not citizens or persons, within the protective lan fendant is to connect with it on the New York side. guage of the Constitution, was unanimously disap In our judgment, if Congress itself has the power to proved, and the court expressly held that they are en- coustruct a bridge across a navigable stream for the titled, as well as individuals, to the equal protection furtherance of commerce among the States, it may of the laws, under the fourteenth amendment of the authorize the same to be done by agents, whether inConstitution.
dividuals or a corporation created by itsell, or a State It is undoubtedly just and proper that foreign cor corporation already existing and concerned in the enporations should be subject to the legitimate police terprise. The objection that Congress cannot con fer regulations of the State, and should have, if required, powers on a State corporation is untenable. It has an agent in the State to accept service of process when used their agency for carrying on its own purposes sued for acts done or contracts made therein. In ref- from an early period. It adopted as post-roads the erence to some branches of business, like those of turnpikes belonging to the various turnpike corporabanking and insurance, which affect the people attions of the couutry, as far back as such corporations large, they may also be subject to more stringent were known, and subjected them to burdens, and acregulations for the security of the public, and may be corded to them privileges arising out of that relation. even prohibited from pursuing them except upon It continued the same system with regard to canals euch terms and conditions, not unlawful in them- and railroads when these modes of transportation gelves, as the State chooses to impose. But in the came into existence. Nearly half a century ago it pursuit of business authorized by the government of constituted every railroad built, or to be built, in the the United States, and under its protection, the cor United States a post-road. This of course involved porations of other States cannot be probibited or ob duties, and conferred privileges and powers not constructed by any State. Il Congress should employ a tinued in their original charter. In 1866 Congress aucorporation of ship-builders to construct a man-of- thorized every steam railroad company in the United war, they would have the right to purchase the neces States to carry passengers apd goods on their way sary timber and iron in any State of the Union. And from one State to another, and to receive compensain carrying on foreign and inter-State commerce, cor- tion therefor,and to connect with roads of otherStates, porations, equally with individuals, are within the 80 as to form continuous lines for the transportaprotection of the commercial power of Congress, and tion of the same to the place of destination. The cannot be molested in another State by State burdens powers thus conferred were independent of the powers or impediments. This was held and decided in the conferred by the charter of any railroad company. case of Gloucester Ferry Co. v. Pennsylvania, 114 U. 8. Surely these acts of Congress cannot be condemned as 204; 5 Sup. Ct. Rep. 826, and affirmed in the recent unconstitutional exertions of power. case of Philadelphia S. Co. v. Pennsylvania, 122 U. In the present case the corporate capacity of the 8. 326; Sup. Ct. Rep. 1118; and although the decision Staten Island Rapid Transit Railroad Company is adin Paul v. Virginia, 8 Wall. 168, conformed to the doc- mitted by making it a defendant. It is not excluded trine of Augusta Bank v. Earle, the following strik- from the State by any want of comity in the laws of ing language was used by the conrt, to-wit: “At the the State. Its alleged want of power under those laws to build the bridge in question does not arise Ohio river at Steuben ville, between the States of Virfrom any thing peculiar to it as a foreign corporation, ginia and Ohio, to be completed, maintained and opbut from the general prohibition of the State law of erated by the railroad company authorized to built it, April 6, 1886, which is applicable to all persons and and by another company named, “any thing in any corporations, and declares “that no bridge, viaduct law or laws of the above-named States to the contrary or fixed structure shall be created by any person or notwithstanding." 12 St. 569. corporation over or in any part of the navigable wa Still it is contended that although Congress may ters separating this State from other States, where bave power to construct roads and other means of the tide ebbs and flows, without express permission of conmunication between the States, yet this can only the Legislature of this State, given by statutes for be done with the concurrence and consent of the that purpose."
States in which the structures are made. If this is so, This prohibition, in its broadest sense, inhibits the then the power of regulation in Congress is not suerection of suoh a bridge as is described therein by preme; it depends on the will of the States. We do Congress itself, or (which is the same thing) by any not concur in this view. We think that the power of person or corporation acting under the authority of Congress is supreme over the whole subject, unimCongress, and of course is to that extent void if Con peded and unembarrassed by State lines or State laws; gress has power to erect such a bridge. But if it is that in this matter the country is one, and the work not to be taken in this broad sense, but as subject to to be accomplished is national; aud that State inthe condition in law of being inoperative as against the terests, State jealousies and State prejudices do not paramount power of Congress, then the authority of the require to be consulted. In matters of foreign and indefendant is unaffected by it, inasmuch as the defend ter-State commerce there are no States. ant has express power from Congress to build the It is very true that in some cases of bridges authorbridge. So that we are brought back to the question ized to be erected and other things authorized to be of the power of Congress to build the bridge, and done, Congress may have required that the consent whether that power is independent of the consent and of the State should be first obtained. But the power concurrence of the State government. And in our of the United States cannot depend on the consent of judgment this question must be answered in the af. the States; it is only to be found in the Constitution. firmative.
The consent of a State inay sometimes facilitate the exThe power to regulate commerce among the several ecution of a power, as the consent to the use of the States is given by the Constitution in the most gen prisons, court-houses, and other public buildings of the eral and absolute terms. The “power to regulate," as State; but it can never confer power. Particular States applied to a government, has a most extensive appli have sometimes consented to the employment of their cation. With regard to commerce, it has been ex courts and judicial machinery by the officers of the pressly held that it is not confined to commercial United States for condemning land for publio purtransactions, but extends to seamen, ships, naviga poses. But if the United States had no power to take tion and the appliances and facilities of commerce. land by condemnation, such consent could not give it. And it must extend to these, or it cannot embrace So where, in any case, Congress may have authorized the whole subject. Under this power the navigation the construction of a railroad or a bridge upon the of rivers and harbors has been opened and improved, condition of obtaining the consent of the State, it is and we have no doubt that canals and water-ways clear that such consent was not required for the pur. may be opened to connect navigable bays, harbors and pose of supplementing the power of Congress to aurivers with each other, or with the interior of the thorize the structure to be made, but rather for the country. Nor have we any doubt, that under the purpose of manifesting a disposition of comity and same power, the means of commercial communication good-will toward the State. For if Congress had not by land as well as by water may be opened up by Con. the power to authorize the structure, consent could gress between different States whenever it shall not give it. All tbose cases therefore in which Consee fit to do so, either on failure of the States to pro gress has given such authority, whether with or withvide such communication, or whenever in the opinion 1 out the consent of the State, are precedents for affirmof Congress increased facilities of communication ing the power of Congress. They are all instances of ought to exist. Hitherto, it is true, the means of
practical construction of the Constitution in favor commercial communication have been supplied, either of it. by pature in the navigable waters of the country, or The most strenuous objection however to the exerby the States in the construction of roads, canals and cise of the power in this case, and in the manner prorailroads, so that the fuuctions of Congress have not posed, is based on the fact that the piers of the bridge beep largely called into exercise under this branch of are to rest and the bridge is to stand on land which its jurisdiction and power, except in the improvement belongs to the State, and that no compensation is proof rivers and harbors, and the licensing of bridges posed to be made for the taking thereof. It is conacross navigable streams. But this is no proof that tended, that if the land of the State can be taken at its power does not extend to the whole subject in all | all (which is denied) it can, at most, only be takep, its possible requirements. Indeed it has been put forth I like other private property, after just compensation in several notable instances which stand as strong argu has been made. ments of practical construction given to the Constitu- First. It is denied that the land of the State can be tion by the legislative department of the government. | taken at all without voluntary cession o The Cumberland or National Road is one instance of
the State Legislature. If this is so, we are brought a grand thoroughfare projected by Congress, extend- baok to the dilemma of requiring the consent of the iug from the Potomao to the Mississippi. After being State in almost every case of an inter-State line of nearly completed it was surrendered to the several communication by railroad, for hardly a case can arise States within which it was situate. The system of Pa in which some property belonging to a State will not cifio railroads presents several instances of railroads
be crossed. It will always bo 80 at the passage of a constructed through or into different States, as Iowa, navigable stream. This shows that the position can Kansas and California. The main stem of the Union not be sound, for it brings us to a reductio ad absurPacific commences at Council Bluffs, in Iowa, and dum. It interposes an effectual barrier to the execuorosses the Missouri by a bridge at that place erected tion of a constitutional power vested in Congress. It under the authority of Congress alone. In 1862 n bridge overlooks the fundamental principle that the Constiwas authorized by Congress to be constructed across the tution, aud all laws made in pursuance thereof, are