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

question Of phlal thropy, to r o cou-5ersd and de-
ci;eo; and sbe considered ad decided it by giving
authority To build brdgs IS fee, above the ordinary
current Of the river, ch they supposed wonli per-
nj; all boats TO pass. up and down the river. BIT
your Honors the .aght, notwithstanding that that
-'resm Vas veg dangerous stream 10 pas except
with bridge -Sfthoug IL was, from physical causes,
impossible 90 pass al many seasons, when the rver
~ss full. except by the bridge-that it must come
down, except i. should be raised ITO feet by 10
fee
Does not that case decide this II d,e' not, say
nv bohers upon the other tide first, because II re-
co,1izes the authority of Gibbons as Ogden and me
authority Of tie in ID Peters, o tue blacko''u
Bridge Co. Certainly II does Bat II recognizes
,b.m s.. the Court undo rstood them-tht Is al: not
ssuy brothers understood them iio" Oh tue Court,
AID yopr Honor be presiding Jadse as one OF W Tue
. Couri UNDERSTAND the decision IN "a feters Sir'
Jns,jce MLeap tells u. lie says and he SAID De-
fore in his individual oprion in the passenger cases,
in 9TH Howarol that the ease IN Peters me'sy ue
Cidei that that particular rep'Ie siea..i, -
"y, nomous il is course, ard spreading pes'u.noo
far aud wide upon It's banks not within the rhsn
regulation OF Congress by any lsw then III iorce: la
is oil. And then making short work Of ITO. !ne
Chief Justice need that case IN his dissenting oPnVu
ust Ny b. 9th rs upon the other side nave 40
tn cas- Of wilson VI, The pacsbiri Bridge Co diff
c-r.s 20 diam uar.h. requi'ed by the unnest1n,s pro-
tuc.d small crek mad" nsyiesos' oy ,o- b
~h.Eer the small a the tide makes nsvisab sa'
within the general &c r.suls;n .aa
lesd Of Consre's'
Then Mr.. Justice MIeau and Mr.. Justice Nelson
saw too getting clear Of the authority oi thst cas-,
after stating what they held TO have been the d"cison
Congrrs. have ed in regulating cree upon The oso
which brings within tue RUE eeoV, AID ayH W ~
CHI justice MARI 81 ia the Bstbrd case II !. case o.
CoIse..iop,l aon, ana OF eouhcins RR.n.e
he authority OF the Union b. psramount and ,'cond
tb. Cor u'on Itself il 50 many ~0d' says ''' is
Now, NAV il please the Court Mr.. Justice Marshall,
in Gibbons Ogden and Mr.. Justice NJ Lean, speak
ING for those who cotcurred with him, IN I5th HOW.
ard-a sdnt THE and AM not here To deny II, tnal
notwithstanding the existence Of the scope o the COM
metcial power az they consrue il, with reference 20
its application to the naygable waters oi the Intea
States there certain powers IN the States WIN
which neither the power it, exercise can DE con-
sidered as conflicting Of themselves And your lioa'
ors Of course will not fail to see that the question
whether measures which have been adopted by
State III der its own Constitutional power and meas
ures winch have been adopted by the CLited States
under their Constitutional power, may exist, ah1ough
in the pariicua instance there may be to certain
extent some conflict. But that does not prove Ih"s
the powers the same.
Now let ue apply the argument which ! am en-
deavoring to reply to now to the case at bar what
do ny brothers uean-not what the Supreme Court
Of the United States meaht-guet do they mean wnen
they say that State has the authority to bridge her
rivers Do they mean that that authority If by virtue
of authority To regulate commerce III they DO as
against Congress far a. the bridge Is concerned
stand. Tie idea of concurrent power, AMI TINT each
power is not supreme, the mind cannot comprehend
II the State has it. sine has it it as efiectaay as the
CniieO States have It. 49,
Now tbst certainly not being so, the power which
tie State exerts in bridging her veis is not power
included within the terms, power To regulate com
MERGE" and for tbs additional reasonaDd that that
reason is, in point Of fact, sound one, need not
stop 10 prove-for my brothers upon the other side
have maintained that in another branca OF the argu-
ment. Is the bridging of river commercial regu-
IL hrfl. ths ilrfffV
III whom is yest' the power to regulate commerce
Is II it is, wbai is the consequence Congress
can bridge sl tue streams Of the Cnited States That
follows necessarily do:s il not lhere IS no hm'tt.
ton upon her authority regulate commerce, except
| that il be foreign CONNIE and ,mmefce among the
States, and cons, qufnty, if the bridging OF the nav
gable waters of the United States is regulation oil
commerce, then the Congress OF the United States
have authority to bridge the waters Of the United
States! But NO one pr,tends that My brothers have
told YOU and told you correctly as tar as this COM
mercial power Concerned that unless the power is
in the State, il is found nowhere in he United States.
1t is outside Of the commercial power; and being 1T
eide, II is On idle, migratory, or non.exisent power,
uress il Is to be found Of the reserved powers
OF the State.
Where does that lead ne, may il please the Court
II leads to the result that bridging navgabe stream
is lot exerton Of the power to regulate commerce.
When, therefore, tie State undertakes to BRIDGE she
does il by virtue Of commercial power, but under
authority to provide for the benefit of her peo
pie and to carry On her internal commerce; but
in povIdlI she has take that she does
| interfere with the commercial power OF the United
States at leas when executed. Then if it be true,
Is decided in 18th Howard, that commercial regua.
tion made by Congress, by the act Of 1898, is ncom
patbe with the continuing existence OF such bridge
as Was the bridge at Wheeling, it follows, of course,
that bridge could be erected under the authority of
State power which should trespass at all upon the
rights secur.d to O citizen Of the United States
through the iIstrumeLtalty Of a law passed by Con-
gres, passed IN the exertloD vi its power To regulate
commerce with foreign nations and among the several
Stotes. But that case, may IT pieate your Hon"rs,
comes up again. My brother cautioned the Court
yesterday against the exercise If jurisdiction in tnis
case by the result Of that controversy. Did ne mean
by that caution to induce your Honors 10 change the
opinion which the Court had pronounced 10 18th How
ard Certainly not.
Whatever this Court might think upon reflection,
of the soundness Of that decision yet sitting your
HoIors in this Court Of original and suborJi.
rate jurisdiction, it is your duty ana will conse-
queDtly be your pleasure, 10 AXE the law applicable
to Il from tie decision Of the Supreme Court Of
the United States and not TO speculate upon the con-
tiDgency that they may, at subsequent tiae change
their views up. the question.
In 1852, after this bridge had been erected and after
your HoLors hal decided that it was to come do w.
unless elevated unless cert in facilities the otaer
eide Of the river should be furnished Congress passed
Ill act which said, in many words that the bridge
was TO be considered legal structure and tue
care, when II came up before the Court upon bill for
th- execution OF that decree, covered by an act
passed on tie 3lst of August 1852, which provided
lat the bridges OHIO River Wn.ens ia the
State OF Virginia a, Bncs port In the ONO abu
tins On Lane. lssnd IN said riser hereby declared 20 %
he United sat-, 70 r. contrsTy o. VI
And then the subsequent section declares that the
said bridges be- declared to be- and are establish ID
postronds for the passage Of the mails Of the United
Sthtes &c, ard officers and crews of vessels IL
eating the Ohio directed TO regulate their use 40
not To interfere with the elevation and coastruc-
tlon Of SAID BRIDGE"
The counsel Tor the State of Pennsylvania objected