New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1858-11-23

: ".
no difference Of opinion. Judge Lean did not DIFF
fer: your Honor did not differ: nYbody differed
Tie opinion was given by Chief Justice ID luiel
The case in 18th II Howard is not even referred TO-
nor that 10 the 9th Of Wheaton NJ question was
raised under the commercial power. There were two
qUestors. The fist, whether what was doue in that
case not an nppropiisu Of private property ID
public use aid therefore unconstitutional and the
ttber whether il was, was not in coufc. with the
act If lsl7 which mel rely declared that the rivers
shoud be free. The Cont held with reference the
Con sfituOr ty OF tie prohibition OF the Constitution
that the appropriation Of private properly t. pubio
did rot Apply to the exercise OF the night Of emRer
domain by the state. upon property within the limits
81 tie STATE for State purposes, that II :' ooy
the taDds Of the General Government. II was Ii Ia
tation upon the power Of the Congress Of the United
States and lot limitation upon the rg-i- i've power
Of the several States Add they absTrred the second
objection, by sayrg that The Act d 1871 never could
have been iLteIdeO to take from the States,
where the several rivers referred to By the Act of 1871
rLcd the nutht ry 10 change their course,
10 provide against the occurrence OF clseaee0r
the imprUye ut Of tie country through watch they
pissed. There was 10 authority maiataiDei to stop
the streams, uIles they opened others, hut the one
opened became free, a. soOn az opened The question
il this Gaze Whether that which is open Tor nayga-
Ob may b. closed for navig alton, by force OF State
power, while II exists as uayIg gable stream no.
Whether it nay be improved, or ct-for that is DIFF
erebt matter. Bot submit that il IL not in the poSer
of N,w-l ERIK Ia canal the to withdraw the
whole river from the cation to which is devoted
by the Commercial clause. IL they right upon the
Other SIDE the State may run canals upon each side OF
The river e. require the whole couteLts OF the
river aid leave the entirely useless for al the
purposes of navigation. That they have no night tn
do Tor that woui be but Jothrr mote of taxing Da,i-
cation for tax i ut ms efl,ctua II yon withdraw
the water ibid tax for the Of the water as with
drawn whether you l.y tax heuse Of the water
III il natural state. But whether this be so, or not,
the que stion before your Hon IRA i, one which supply
involves precisely the proposition contained IL the 18th
81 Howard. Are authoriz-J to nav gate the river,
standing the bridge to be constructed under the
authority Of the State Of New ork and is the bridge
to be -tructed practical Interference, III the
seDee C the d. ci-ion Of the 18th of Howard wit the
safe and cor veniert navigation Of the river
Upon the third question. may i please the Court, 1t
is to trouble you either with authority or
argument for il is perfectly paiu and mantained
in all the cited upon the otter sde-tnat II we
right upcL the queton Of aw-that Is to say that
have right under the Constitution OF tue United
States and the Act of 1898 to g, up ard down ths
river then the injury which is tire tened 10 be done
is fer which the law will not afford ~ adequate
remedy-it would be continued tressPass, to be re-
covered for by succe of suits ut law, renedy
wholly made Quate, and upon the ground OF multiple
ty Of suits the interposton of Court OF Equity may
be II sorted 10.
A word further, and I shall lave done. 1t appears
to me- far ms the decision Of the present motion is
concerned TO dissolve this injunction, that your Honors
cannot but think what shall suggest conclusive.
The cuty which met the compaioa ant, and winch
bor practically upon the judgment Of tbs Court IN the
ease in the 18th of Howard, w,s the fact that the
bridge was suffered to be built. To use the language
Of Mr. Justice Grier the Court instead Of directing it
to be taken down, in the exercise OF what he calls
mercul dscretlon looking to the circumstances of
that case suffered the bridge TO stand, provided the
changes required were made. Mr.. Justice M Lean
SAYS that there certain occasions when Court OF
Equity will not interfere to arrest what has really been
done in the nature of public wrong, because there
may be circumstances connected with 1t which woul1
render it proper in administering the equity powers OF
the Court of Chencely to provide possibiy against
the destruction Of what has been DONE except It
shall be necessary to accomplish the only end 10 be
attained. We had hearing in this case before he
Honor who presides now aud there were vast vail
ETY. Of afiidavits pro AMI con. The argument was
pretty much the same that has been made on either
side On this occasion and your Honor came to the
conclusion that it very desirable that ts bridge
should not be built until these questions could be au-
tLorstyely decided with the benefit OF all the lights
which additional testimony and additional argument
might afford, aud you decided to grant the ltunction
to bc continued until final hearing. Here We are, 30
far ss this Court is rned, ut final bearing is
this On se TO stop here Your HOnors oil course, are
aware speaking with the respect We all feel a. 70
whatever may be the Judgment Of the Court that from
that Judgment whatever it shall be. there Will be an
appeal TO the Supreme Court of the United States. In
thht Cont il may be decided some six or twelve
months hence Now, submit that precisely Tor me
reason that the Court deemed It It's duty 70 issue th
Injunction to restrain the erection OF this bridge until
the case could be fully heard here it is necessary and
proper that the injunction shal be continued until the
case shall be fnay disposed Of at final hearing before
the Supreme Court. ..
Whnt are the questions to be decided, may it please
your Honors The extent that the Court iotended to
90 in the thirteenth Howard Let the Supreme Court
apswer for itself whether the facts OF tins case snow
that maera! rious obstruction 10 the navigation
OF the river which will be the result o TINS structure,
which the Court believed existed IN the Mhegh.S
Bridge case They have given you no certain rui. ~
oude you Let the Court dcc ie tor themselves 10
not LEI the uischef Of this bridge fan upon US Low,
aud cor tinue upon during the whole fou oe,w.1n
H. creation of the mischief and thu decision oil The
Cont And above all, do not suffer THIS company
Nv the construction of the bridge 70 place
With rrft renee TO the ultimate Judgment of the Cont
of last resort in better situation than they stan now"
Do not permit them to do the wrong, he dong oil
which constituted one Of the cmbarrass neh's Wnch
the Supreme Court had in The Wheeling case hsep
,b;no, s they are and who is ~ suffer by that dspo-
.tiop Of the case by your Honors Not passenger
will be kept from travelling on their roais; Judging
by the past, net passengs VIII be injured oy cIossns
this river be il crossing II now y" apP!ec1ao1p
nc nyenience viii be the result OF preserving 'hhgs
as they stand. Whereas, if yoT fionors suffer the
bridge TO be built and these gentlemen respondents
90 on under the authority Of that decision, they may
| we'll saw when tlev get before the Supreme Court,
1--WE have not only the authority Of New York to
b.ll but we had the sanction OF the Circuit Cuurs oi
the United States to build and having buzz under me
| doub, sanction Of a State Legislature, and one OF
your own Court we appeal 10 the Supreme Court OF
The United States to let il stand although it may be
true Us is N aniestly the in the Thirteenth HOW
ard that If the question before the Court was whether
the bridge should be- built or not the deci-ion u. tue
Court would have been governed by CONSTITUTIONS
| entirely different.
have thus, may ii please your Honors, sad ~! tina,
| has occurred 10 az bearing IN any wa! upon thc
controversy and leave the case 10 the hands oil your
Honors with that assurance which Is com non % every
enl gkt.ned bar who has respect for the Intelligence
and virtue Of the bench that the Judgment you WIZ
proLounce will BE- the result Of the most caf-!d anu
| unpreiudictd consideration.
| FIRES.