The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1873-04-09

"Be il therefore eHdcIed, 6y Tie General
AasemJlv Of Virginia, That the said wire
suspension bridge 80 erected across the
Ohio river at Wheeling as aforesaid, at
tho height Of 90 feet at the eastern abut-
ment, 03i feet at the highest point, and 02
lcet at the western abutment, above the
low water level Of the Ohio river, be and
the same Is hereby declared TO be Of law.
full height, and 10 conformity with the
intent and meaning Of said fourteenth
section Of the act OF March 10, 1847."
This act shall take effect from and after
Pits passage.
Whole OF act OF January II, 1850.
In July, 1S49, the State Of Pennsylvania
commenced q suit in Chancery In the gu.
preme Court OF the United States, against
the Wheeling and Belmont Bridge Com.
pany.
Il the original and amended bills filed
by the complainant land on which the
case was heard and decided, she relied
upon Two propositions; one Of law and
ono OF fact. OF law: That the right to
use and navigate the Ohio river, was FREQ
and common to all citizens Of the United
States, and could not be obstructed. OF
fact: That the wire suspension bridge,
erected by the said company, was an OBJ
struction by reason Of Its elevations, TO
such free and common use OF the river.
In the answer filed by the said bridge
company land on which the case was
heard and decided, In defense 10 the ale.
cations of compliments bills, they, al
though relying on other matters as well,
mainly relied upon two propositions,
namely: First-That while the right to
use and navigate the Ohio river was tree
and common to all the citizens Of the
United States, this right was not an absQ.
lutte and unlimited one, but one that could
be limited to certain extent BY the State
Of Virginia, because Oh her exclusive sove:
reign ownership Of the bed and shores oil
tho Ohio river within her territory.
And that the said State Of Virginia, by
virtue Of her ,prerogati0n as exclusive
sovereignOt tho Territory and .bedsoi tho
river, III and over sWhich-the brid6 il was
erected, had conferred upon them by acts
OF her Legislature the right to erect their
bridge, and with the elevation 1t had.
And, second-ThRt the wire suspension
bridge, erected by them under said acts
Of the Legislature, was not material or
substantial obstruction TO the free and
common use and navigation 1.-THE river,
On these issues tho case was heard and
decided by the Supreme Court, at De
cember term, 1851, and is reported in 10
Howard, 5l9,
The court decided the following, as
written In the SYLLABUS OF the case, which
we copy in ezienS0, previously stating that
the syllabus is Q. fair and correct state
ment Of the points decided:
"The Ohio river being a public naViga-
bic stream, Of right should remain Tree
and unobstruCted."
"The Wheeling bridge is an Obstruc.
ton Of the free navigation OF the Ohio by
vessels propelled by steam"
"a law Of the State Of Virginia, Gu-
thorizing this obstruction, was inopera-
tive" .n.l.a .r r-,
~. Becausei 1t impaired the obligation
Of the compact between Virginia and
Kentucky (of 1850 that the use and navi.
cation OF the Ohio, so FAR as the territory
Of Virginia and Kentucky is concerned,
shall be free and common 10 the citizens
Of the United States"
"2. Because it Is In conflict with the
legislation OF Congress which regulates
the commerce among different States and
with foreign nations carried upon this
river"
"The State Of Pennsylvania, as propri.
etor Of public works, suffers special dam
age in It's property, by reason OF this pub
lie nuisance, and this damage Is contin-
ued from day 10 day, is not capable Of
proof and computation in each item there
Of, and 80 it is not reparable by the course
Of the common law, and in such case a
bill in equity, by the State, lies, to enjoin
the nuisance" III
"But, II by the construction and use oil
suitable draw the navigation Of the
river should be restored to such Condi-
ton as, in the Judgment Of the court,
renders II free from unreasonable obstruc'
ton, the bridge should not be treated as q
nuisance"
In effect, the court decided that the
acts of the Legislature, authorizing the
erection and maintenance OF this particu.
lar bridge were utilities, or without any
lawful operation, and for this reason did
not confer any right upon the bridge com.
pany to erectiandr maintain the bridge;
and this because OF the reasons set forth
in the above syllabus Of the case.
That this was and must have been the
decision Of the court is evident: First
From It's fair reading5 Second-From the
main issue before the court TO be decided
and hereinbeiore stated; and, Third-Be-
/ I'm dRlu nj n
Legislature authorizing the erection Of
this bridge, were not utilities, or lnoper-
alive in, law, because Of the want Of pow.
er in the Legislature TO pass them, they
were and must have been valid or opera
tive acts, because Of power In the Legs
lature 10 pass them, and no court, Federal
or State, could or would have declared
them imperative, and decreed either the
change OF, or the abatement of the bridge
as q public nuisance. Any other deter
mination Of the case would make de-
structive conflict between the National
and State Government-such conflict
that has no existence in our system OF
governments.
That the bridge company understood
this 10 be the. declsion OF the Supreme
Court, will appear from the following ex-
tract from their memorial to Congress,
signed by Jas. Baker, President and E.
II. Fitzhugh, Clerk, asking Congress to le.
galize their bridges. And from the prob.
able fact that 1t was written by their clerk
or counsel, either Of whom were en-
inenLlytlt 10 form correct opinion about
the same, gives 1t additional force.
j We quote from page 90 Of this memo.
rial: ut Is understood that the opinion Of
the court stands against the Wheeling
bridge, only because 1t was not erected
under the authority Of Congress-it being
, decided by that high tribunal that no
State has the power TO authorize any OBJ.
slruction, be It ever so small, to a vessel
licensed under an act Of Congress, and
trading TO town which by law OF Con.
gress has been made port ofentry."
The next question, then, to DO consid-
cred. Is: What effect In law this decision,