The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1877-03-31

Lean, 228. On application was made Tor
an Injunction to prevent the eonstruc.
tion OF. O drawbridge over the Cuyahoga
river, upon the ground that 1t would
obstruct the navigation OF said river.
This application tsays the Court) is
compact In the ordinance Of 1887, which
declares THE navigable waters leading
into the Mississippi and st. Lawrence
and the carrying places between the
same, shall be common highways, and
forever free, as we'll to the inhabitants
Of said territory as to the citizens Of the
United States, and those OF any other
State that may be admitted into the
Confederaey, without any tax, import
or duty therefor.
This, 1t will be observed, Is substan-
TALLY the same provision as. that con:
tanned In the section 1851 OF the Revised
Statutes Of Che United States, relied on
by counsel for the defendant.
The ordinance of 1857, however, was
passed before the adoption Of the pres.
ent constitution, for the governance OF
what was known as the Northwest Ter
ritory, and the only question which the
Court was called on to decide In the
case referred to, was as to the proper
construction Of the clause of that ordi-
nance which has been quoted. It is
true, the Court referred Incl
dentally to the only provision of
the constitution which could have
been called in question, to wit
the clause giving to Congress the power
to regulate commerce., and held that
this power Is paramount In Congress,
and is not concurrent with that OF the
States. The court then went on to de-
eide that the ordinance OF 1887 was
not intended to prevent the States af-
feeted by 1t from improving the naviga-
bleness OF the waters in question by
removing distractions, or by dams or
locks to increase their depth, nor did 1t
prevent said States from constructing
works upon these waters which might
be considered important to commercial
intercourse. A dam (said the Court
may be thrown over q river provided q
lock 10 constructed so rs to permit boats
to pass through with little or no delay
and Without charge. A temporary delay
considered as IN obstruction prohibited
by the ordinance"
At another place, the Court said: "A
toll charged for the Improvement Of the
navigation OF q river is not 7Dttllin tbt
| ordinance. In such q case the tax would
not be for the use OF the river In its
natural condition. but for the increased
| commercial facilities"
| After at much length the Judge con.
oludes this very able Judgment as fol.
lows:
First--That the sum claimed is O duty
Of tonnage, not In the nature OF com.
pensation for services or for the use Of
plaintiffs property, since it is claimed
of vessel, not shown to have done
anything but pass In and out Of nayi-
| gable stream, leading into waters |" fall
Ing into the Gulf OF Mexico," which
was navigable for said vessel, without
the plaintiffs assistance.
Second - That Congress has given
neither an express nor implied assent
to the imposition Of this duty by the
State OF Louisiana; said duty was,
| therefore, laid In violation of the provi-
sions OF the constitution OF the United
States, and cannot be collected.
1t is, therefore, ordered, adjudged and
dooreod that the, Judgment OF the lower
versed, and that there be judgment in
favor Of the defendant, diminishing
PLAINTIFF claim; that the bond of re-
lease given by defendant be Cancelled,
and that plaintiff pay costs In both
!