The au 7. Power of Congress as to Internal Improvements. thority of Congress to appropriate public moneys for internal improvements has been much discussed on public occasions, and between the legislative and executive branches of the government; but the point has never been brought under judicial consideration. It has been contended, that, under the power to establish post-offices and post-roads, and to regulate commerce among the states, and to raise moneys to provide for the general welfare, and as incident thereto, Congress have the power to set apart funds for internal improvements in the states, with their assent, by means of roads and canals. Such a power has been exercised to a certain extent. It has been the constant practice to allow to the new states a certain proportion of the proceeds arising from the sale of public lands, to be laid out in the construction of roads and canals within those states, or leading thereto. In 1806, Congress authorized a road to be opened from Nashville, in Tennessee, to Natchez; and in 1809, they authorized the canal of Carondelet, leading from Lake Pontchartrain, to be extended to the river Mississippi. So late as the 8th of August, 1846, Congress granted lands to aid in the improvement of the Fox and Wisconsin rivers, and to connect the same by a canal, in the State of Wisconsin. The Cumberland road was constructed under the act of March 29, 1806, and this road had been made under a covenant with the State of Ohio, by the act of April 30, 1802, that a portion of the proceeds of lands lying within that state should be applied to the opening of the roads leading to that state, with the consent of the states through which the road might pass. But the expenditures on that road far exceeded the proceeds of sales of public lands in Ohio, and, in 1817, the President of the United States objected to a bill, on the ground that the Constitution did not extend to making roads. and canals, and improving watercourses through the different states; nor could, the assent of those states confer the power. Afterwards, in 1822, the President objected to a bill appropriating money for repairing the Cumberland road, and establishing gates and tolls on it. On these and other occasions there has been a great * and decided difference of opinion between Congress and * 268 the President on the constitutional question. President Jefferson, in his message of December 2, 1806, and President Madison, in his message of December 3, 1816, equally denied any such power in Congress. On the other hand, it appears that Congress claim the power to lay out, construct, and improve post-roads, with the assent of the states through which they pass. They also claim the power to open, construct, and improve military roads on the like terms, and the right to cut canals through the several states, with their assent, for promoting and securing internal commerce, and for the more safe and economical transportation of military stores in time of war; and leaving, in all these cases, the jurisdictional right over the soil in the respective states. (a) (a) In the case of Dickey v. Turnpike Road Co., 7 Dana, 113, the Kentucky Court of Appeals decided that the power given to Congress by the Constitution to establish post-roads, enabled them to make, repair, keep open, and improve post-roads, when they should deem the exercise of the power expedient. But in the exercise of the right of eminent domain on this subject, the United States have no right to adopt and use roads, bridges, and ferries, constructed and owned by states, corporations, or individuals, without their consent, or without making to the parties concerned just compensation. If the United States elect to use such accommodations, without the performance of such a previous condition, they stand upon the same footing, and are subject to the same tolls and regulations as private individuals. This important decision was well supported by sound reasoning. (x) (x) Railroads and the streets used by letter-carriers are both "post-roads." Pensacola Tel. Co. v. Western Union Tel. Co., 96 U. S. 1; Blackham v. Gresham, 16 Fed. Rep. 609; United States v. Easson, 18 id. 590. Such roads cannot be constructed by the general government without the State's consent, but it may establish such a road on a highway constructed by the State. Cleveland R. Co. v. Franklin Canal Co., 1 Pitts, L. Journ. 142. Under its constitutional power to establish post-offices and post-roads, Congress may regulate the entire postal service of the country. Ex parte Jackson, 96 U. S. 727. Such power carries with it as incident the power, to be exercised at the discretion of Congress, to prohibit the use of the mails for matter used in disseminating crime, immorality, or lotteries: In re Rapier, 143 U. S. 110; Horner v. United States, id. 207; but it does not enable the postmaster general to bind the government by leasing a post-office for twenty years when there is no appropriation therefor. Chase v. United States, 155 U. S. 489; 44 Fed. Rep. 732. The general government may sue to enjoin obstructions to highways used in interstate commerce and in transporting the mails. In re Debs, 158 U. S. 564. The U. S. Rev. Stats. § 3964, making railroads post-roads, and § 5264, allowing telegraph companies to use materials from public lands, do not appropriate, for the promotion of commerce, submerged tidelands over which the railroad or telegraph is constructed. Rumsey v. New York & N. E. R. Co., 63 Hun, 200; 137 N. Y. 563. Under the power to regulate commerce among the States, Congress can construct, or empower individuals or corporations to construct, railroads across the States and Territories of the United States. Califor In the inaugural address of President Adams, on the 4th of March, 1825, he alluded to this question, and his opinion seemed to be in favor of the constitutional right, and of the policy and nia v. Central Pacific R. Co., 127 U. S. 1. It may likewise create a corporation to build a bridge across navigable water between two States, and to take private lands therefor, making just compensation. Luxton v. North River Bridge Co., 153 U. S. 525. In order to regulate commerce, Congress may employ, as instruments, corporations created by itself or by the States, and it can grant a right of way to a railroad corporation for a railroad, telegraph, and telephone line. Cherokee Nation v. Southern Kansas Ry. Co., 135 U. S. 641. A lock and dam belonging to a corporation chartered by a State can be condemned by the United States only under the power to regulate foreign and interstate commerce. Monongahela Nav. Co. v. United States, 148 U. S. 312. If just compensation is provided for, it may thus authorize the property of a riparian proprietor to be taken in order to facilitate navigation and commerce between the States, and for this purpose proceedings may be had in either the State or Federal courts. Re United States Petition, 96 N. Y. 227; Great Falls Manuf. Co. v. United States, 16 Ct. Cl. 160; 112 U. S. 645; Fort Leavenworth R. Co. v. Lowe, 114 U. S. 525; United States v. Irwin, 127 U. S. 125; In re Montgomery, 48 Fed. Rep. 896; 17 A. G. Op. 109, 137, 279, 453, 455; 18 id. 64, 66, 431, 481; see 25 U. S. at L. 357; Kimberly & Clark Co. v. Hewitt, 79 Wis. 334; Dunnington v. United States, 17 Wash. L. R. 344. The United States, upon making just compensation, may by eminent domain take real estate in any State, with or without a concurrent act of such State, whenever needed for its use in the execu tion of any of its powers, as for arsenals, fortifications, light-houses, custom-houses, court-houses, barracks, hospitals, postoffices, etc. Van Brocklin v. Tennessee, 117 U. S. 151, 154; Decker v. Baltimore & N. Y. R. Co., 30 Fed. Rep. 723; Hawkins Point Light-house, 39 id. 77; In re Secretary of the Treasury, 45 id. 396. If the general government acquires such land by purchase with the consent of the State legislature, it has exclusive jurisdiction there; if otherwise acquired, it is subject to exclusive Federal jurisdiction only with respect to the part used for public purposes. Fort Leavenworth R. Co. v. Lowe, 114 U. S. 525; Chicago & Pac. Ry. Co. v. McGlinn, id. 542; Benson v. United States, 146 U. S. 325; United States v. Bateman, 34 Fed. Rep. 86; 16 A. G. Op. 592. When land is thus acquired from a State by an Act of cession, the United States holds it only as prescribed in such Act; hence at Fortress Monroe, which was thus ceded by the State of Virginia, the civil laws of that State are in force, so far as they do not conflict with the Federal laws or military occupation. Ibid.; Crook v. Old Point Comfort Hotel Co., 54 Fed. Rep. 604. The provisions of the Fifth and Fourteenth Amendments that private property shall not be taken for public use without just compensation, or without due process of law, apply to eminent domain proceedings by the United States, but not to those taken by a State. In re Sawyer, 124 U. S. 200, 219; Wilson v. Baltimore & P. R. Co., 5 Del. Ch. 424. The claim for compensation arises out of an implied contract, so as to be also with the jurisdiction of the Court of Claims. United States v. Great Falls Manuf. Co., 112 U. S. 645. The Act of Congress of July 15, 1882, authorizing such compensation to be determined by the Court of Claims without a jury is constitutional, although not requiring pay. wisdom of the liberal application of the national resources to the internal improvement of the country. He intimated that speculative scruples on this subject would probably be solved by the practical blessings resulting from the application of the power, and the extent and limitations of the general government, in relation to this important interest, settled and acknowledged to the satisfaction of all. This declaration may be considered as withdrawing the influence of the official authority of the President from the side on which it has hitherto pressed, and adding ment before the taking. Great Falls Manuf. Co. v. Garland, 25 Fed. Rep. 521; 124 U. S. 581. The United States cannot be sued, as upon an implied contract, for land devoted to the public use when the plaintiff's title has never been acknowledged; it has not, by statute, made itself liable for torts committed by its officers; and the settled rule that it is not so liable cannot be evaded by claiming upon an implied contract. Hill v. United States, 149 U. S. 593; German Bank v. United States, 148 U. S. 573; see United States v. Schwalby, 87 Texas 604; Merriam v. United States, 29 Ct. Cl. 250; Schillinger v. United States, 155 U. S. 163. Improvements in navigable waters which lessen the navigable character of a river but do not take private property, though impairing the usefulness of a wharf, constitute a tort for which damages cannot be recovered in the Court of Claims. Gibson v. United States, 29 Ct. Cl. 18. The national government may also delegate to a State tribunal the power to fix the compensation that should be paid. United States v. Jones, 109 U. S. 513. A State statute, which is defective as to providing compensation for a national improvement, may be cured by Congress. Green Bay Canal Co. v. Kaukauna W. R. Co., 70 Wis. 635. As Congress has both political and municipal authority over the District of Columbia, it can there condemn land for a public park. Shoemaker v. United States, 147 U. S. 282; United States v. Cooper, 20 D. C. 104. The power of the respective States to engage in works of internal improvement is also limited. Thus a State legislature cannot empower a municipal corporation to buy and sell to its inhabitants wood and coal for fuel. Justices' Opinion, 155 Mass. 598. So a law authorizing the construction of an elevator, and the carrying on, by means thereof, of the business of storing and selling grain is in conflict with the Constitution of Minnesota, which prohibits the State from ever contracting debts for works of internal improvement, or being a party in carrying out such works. Rippe v. Becker, 56 Minn. 100. The police power of a State includes the licensing of intoxicating liquors: Rock County v. Edgerton (Wis.), 63 N. W. Rep. 291; and under the police power the State can assume the entire management of the sale of intoxicating liquors within its limits, as being dangerous to the peace, order, morals, health, and welfare of its citizens, though it provides for purchases and sales only through public agents. State v. Aiken, 42 S. C. 222; overruling MeCullough v. Brown, 41 S. C. 220; see Donald v. Scott, 67 Fed. Rep. 854. A telegraph corporation, which a municipal corporation permits to use its streets, is still, under the police power, subject to later State laws regulating but not substantially impairing its rights. People v. Squire, 145 U. S. 175. it to the support of the preponderating opinion in favor of the competency of the power claimed by Congress. (b) (b) In February, 1827, after an animated debate, the House of Representatives, by a vote of 101 to 67, voted to appropriate $30,000 for the continuation of surveys of routes for roads and canals. In April, 1830, on the bill, in the House of Representatives, to construct a road from Buffalo, in New York, through Washington to New Orleans, great objection was made to the constitutionality of the power, and the House, by a vote of 105 to 88, rejected the bill, though probably the vote was governed, in part, by other considerations; for other bills, for aiding the making roads and canals, passed into laws during that session, and their avowed purpose was the great object of internal improvement. President Jackson, in 1830, declared himself to be of opinion, that Congress did not possess the constitutional power to construct roads and canals, or appropriate money for improvements of a local character; but he admitted that the right to make appropriations for such as were of a national character had been so generally acted upon, and so long acquiesced in, as to justify the exercise of it on the ground of continued usage. He objected, upon that distinction, to the bills authorizing subscriptions to the Maysville and Rockville Road Companies, as not being within the legitimate powers of Congress. The great question concerning the power of Congress to appropriate moneys for internal improvements within the states remained still as unsettled as ever, as late as the 3d of August, 1846; for on that day President Polk objected to and defeated the bill, which had passed both houses of Congress, for appropriating $1,378,450, for separate and distinct objects of internal improvement, in certain harbors, rivers, and lakes in various parts of the United States. The President denied the existence of a constitutional power in the federal government to construct works of internal improvement within the states, or to appropriate moneys from the treasury for that purpose. He considered the absence of such a power to be a principle of construction well settled, and that the inexpediency of the power was demonstrated in the exercise of it in that case; for the bill contained appropriations of moneys for more than twenty objects of internal improvement, called, in the bill, harbors, at places which have never been declared by law either ports of entry or delivery, and at which there has never been an arrival of foreign merchandise, and from which there has never been a vessel cleared for a foreign country. The constitutional scruples of the President went, in their application in this case, to interdict the necessary, and, in my opinion, the clearly constitutional jurisdiction and discretion of Congress, "to regulate commerce with foreign nations and among the several states," as to the improvement of the navigation of the many rivers, harbors, and great lakes within the United States, and on which waters is carried an immensely valuable commerce. This strict construction of the Constitution is in striking contrast to that large construction which has been given to the Constitution, in authorizing Congress to admit new states into the Union, and to which we have already alluded in a preceding note. See ante, 259. The rightful power of the general government to direct the improvement of the navigation of the internal waters of the United States for the commercial use of the Union, and to apply the revenues thereof for that purpose, appears to me to result from a sound construction of the Constitution. It is one of its great and essential objects. The Mississippi, for instance, with its millions of inhabitants, and great cities and towns on its banks, calls loudly for means to clear and remove obstructions to a safe navigation. The states cannot do it, and the improvement must come, if it comes at all, from the general government. The whole Union is deeply interested in the |