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THE STATE OF PENNSYLVANIA v. THE WHEELING AND BELMONT BRIDGE COMPANY

December 1, 1855

THE STATE OF PENNSYLVANIA
v.
THE WHEELING AND BELMONT BRIDGE COMPANY, ET AL.



THIS case was one of original jurisdiction in this court, upon the equity side; and may be said to be a continuation of the suit between the same parties reported in 13 How. 518. By turning to that case, the reader will perceive that at page 627, a day was given to the plaintiffs to move the court on the subject of the decree. It is now proposed to continue the narrative from that time. The motion made by the complainant and the motion made by the defendants to dismiss the suit, need not be particularly stated. In the summer of 1854, the bridge was blown down by a violent storm, and the company were preparing to rebuild it according to the original plan, when the next step in the history of the case was taken. On the 26th day of June, 1854, in vacation of the supreme court, the State of Pennsylvania, by her attorney-general and her counsel, Edwin M. Stanton, pursuant to previous notice served on the Wheeling and Belmont Bridge Company, appeared before the Honorable R. C. Grier, one of the justices of the supreme court of the United States, at chambers, and moved for an injunction as prayed for in a supplemental bill then exhibited. The substance and object of the bill is stated in the subjoined order. On hearing the bill and affidavits, the following order was made and injunction granted. 'In the Supreme Court of the United States. THE STATE OF PENNSYLVANIA }

The opinion of the court was delivered by: R. C. Grier, Associate Justice Sup. Court U. S.

v. }

THE WHEELING AND BELMONT BRIDGE COMPANY. }

In Equity.

Before the Honorable R. C. GRIER, one of the judges of the supreme court of the United States.

'Whereas, on the 26th day of June, 1854, at the United States court room in the city of Philadelphia, the State of Pennsylvania, by her attorney-general and counsel, exhibited before me, R. C. Grier, one of the justices of the supreme court of the United States, her bill of complaint in equity against the Wheeling and Belmont Bridge Company, setting forth, among other things, that the said Wheeling and Belmont Bridge Company is about to erect and construct a bridge over and across the eastern channel of the Ohio River at Wheeling, between Zane's Island and the main Virginia shore, at a less elevation than is prescribed by the decree of the supreme court of the United States heretofore rendered against said company on complaint of said State, whereby the navigation of the Ohio River by steamboats of the largest class will be obstructed, to the injury of the said State; and in the vacation of the supreme court the said complainant hath applied to me for an injunction as prayed for in said bill against the said Wheeling and Belmont Bridge Company, and its president, managers, officers, engineers, agents, contractors, and servants, to enjoin them from erecting and constructing a bridge at the place aforesaid at a less elevation than is prescribed by the decree aforesaid, and from doing any act or thing to obstruct the navigation of the Ohio River, as prayed in said bill:'And reasonable notice of said application having been given unto the said Wheeling and Belmont Bridge Company to appear before me, to resist said application, and the proofs and arguments of counsel being heard, it is considered and adjudged that an injunction, as prayed for in the said bill, be, and the same is hereby, allowed. And it is ordered that the writ of injunction of the United States of America be forthwith issued by the clerk of the supreme court of the United States, under the seal of the said court, against the said Wheeling and Belmont Bridge Company, its president, managers, officers, engineers, agents, contractors, and servants, and all persons acting by their instigation, authority, or procurement, or otherwise, commanding and requiring them, and every of them, under the penalty of the law, that they do forthwith and absolutely desist and abstain from erecting and constructing, or causing to be erected or constructed, any bridge, structure, or device, in, over, or across the eastern channel of the Ohio River, at Wheeling, between Zane's Island and the main Virginia shore, at a less elevation than is prescribed by the decree aforesaid of the supreme court of the United States against said bridge company, entered at the adjourned term in May, 1852, and from stretching, suspending, or placing or causing to be stretched, suspended, or placed, any iron cables, ropes, wires, or chains, or any timber, structure, material, or thing whatsoever, in over, or across the said channel, at a less elevation than is prescribed by the decree aforesaid, and from keeping and maintaining any cable, rope, wire, chain, timber, or thing whatsoever, suspended in, over, or across the said channel, at a less elevation than is prescribed by the decree aforesaid, and from doing, or causing to be done, any act or thing to obstruct the free navigation of said channel of the Ohio River.'

'It is ordered that the marshal of the District of Columbia do forthwith serve said writ.'

And the clerk of the supreme court of the United States is directed to file the bill of complainant on which the aforesaid application and allowance are made, and enter this order and issue the writ of injunction above allowed; and also, that he issue the writ of subpoena in chancery, to be served by said marshal, requiring said Wheeling and Belmont Bridge Company to appear, plead, answer, or demur to said bill within ninety days from the service of said writ.

Given under my hand, at Philadelphia, this 26th day of June, 1854.

The preceding order having been filed in the office of the clerk of the supreme court on the 27th day of June, a writ of injunction, with a certified copy of the decree of the supreme court, entered at May term, 1852, annexed thereto, was issued and delivered to the marshal of the District of Columbia, as follows:

THE UNITED STATES OF AMERICA.

In the Supreme Court of the United States, ss.

The President of the United States of America, to the Wheeling and Belmont Bridge Company, its president, managers, officers, engineers, agents, contractors, and servants, and to each and every of them, and to all persons whomsoever, greeting:

Whereas, the State of Pennsylvania hath made application before the Honorable R. C. Grier, one of the justices of the supreme court of the United States, for an injunction as prayed for in her bill of complaint exhibited before said justice, and filed in the supreme court of the United States:

And whereas, upon hearing of said application, the following order was made:––

[In the injunction, the preceding order was recited.]

We, therefore, having regard to the matter aforesaid, do strictly enjoin and command the said Wheeling and Belmont Bridge Company, its president, managers, officers, engineers, agents, contractors, and servants, and all persons acting by their instigation, authority, advice, procurement, or otherwise, to observe and obey the aforesaid order and injunction.

Hereof fail not, under the full penalty of the law thence ensuing.

Witness the Honorable Roger B. Taney, chief justice of the supreme court of the United States, this 28th day of June, A. D. 1854.

Attest, WM. THOMAS

Attest, WM. THOMAS Clerk of the Supreme Court of the United States.

The writs of injunction being served upon the company by leaving a copy at its office and with its president and secretary, and also upon the managers of the company, they proceeded to erect the bridge notwithstanding the injunction, and it was completed in November.

At December term, 1854, the complainant, by her counsel, having given previous notice to the company, filed a motion for a sequestration against the company, for a contempt of court in disobeying the injunction, and a motion for an attachment against the officers personally for their contempt in disobeying the injunction. The motions were as follows:––

Motion for Sequestration.

And now, to wit, at the December term, 1854, comes the State of Pennsylvania, by her attorney-general, and moves the court to order and direct a writ to be issued against the Wheeling and Belmont Bridge Company, to sequestrate its estate, real, personal, and mixed, and the rents, issues, and profits thereof, its privileges and franchises, goods, chattels, rights, credits, moneys, and effects, for a contempt of court, by breach of and disobedience to the lawful writ, process, orders, decree, and commands of the supreme court of the United States.

The breaches and disobedience to said writ, process, orders, decree, and commands aforesaid, are stated and charged specifically as follows:––

1. That after service upon the Wheeling and Belmont Bridge Company, by the marshal of the District of Columbia, of a copy of a writ of injunction issued out of said court, pursuant to an order of allowance made on the 26th day of June, 1854, by the Honorable R. C. Grier, one of the judges of the said supreme court, the said company have disobeyed said writ of injunction, and are engaged in doing and performing acts, and have caused and procured acts to be done, in disobedience of said injunction and of the process and authority of said court.

2. That after service upon said company by the marshal aforesaid, of a copy of the decree entered by said supreme court at the adjourned term of May, 1852, in the case of The State of Pennsylvania v. The Wheeling and Belmont Bridge Company and others, said company have disobeyed said decree.

3. That since the service of the writ of injunction and decree as aforesaid upon said company, said company have stretched, suspended, and placed, and caused and procured to be stretched, suspended, and placed, iron cables, ropes, wires, or chains, over and across the eastern channel of the Ohio River, between Zane's Island and the main Virginia shore, at Wheeling, in disobedience of said injunction; and have erected and constructed, and are engaged in crecting and constructing, and in causing and procuring to be erected and constructed, a bridge over and across the said channel, at a less elevation than is prescribed by the said decree of the supreme court of the United States, entered as aforesaid, at the adjourned term of May, 1852, and in disobedience of said writ of injunction; and have kept and maintained, and are keeping and maintaining, cables, wires, chains, timbers, and planks suspended in, over, and across the said channel, at a less elevation than is prescribed by the decree aforesaid.

4. That since the service of said writ and decree as aforesaid, the said company have obstructed the free navigation of the said channel of the Ohio River, and have caused and procured the same to be obstructed, and are now keeping the same obstructed, in breach and disobedience of said writ of injunction and decree.

F. W. HUGHES, Attorney-General of Pennsylvania.

Motion for Attachment.

And now, to wit, at the December term, 1854, comes the State of Pennsylvania, by her attorney-general, and moves the court for an order that Charles Ellet, Jr., James Baker, and E. H. Fitzhugh stand committed to the jail of the District of Columbia, for a contempt of court, by breach of and disobedience to the lawful writ, process, order, decree, and commands of the supreme court of the United States.

[The breaches set out were the same as above.]

A motion for a writ of assistance to execute the decree of this court made in May, 1852, was also filed, praying the court to order and direct such a writ to the marshal of the District of Columbia.

A motion was also made for an award of execution for the costs decreed in May, 1852.

The defendants appeared by their counsel, and resisted the foregoing motions under the 6th and 7th sections of the act of congress, (10 Stat. at Large, 112,) entitled.

'An act making appropriations for the service of The Post-Office Department during the fiscal year ending the thirtieth of June, one thousand eight hundred and fifty-three, and for other purposes.

SEC. 6. And be it further enacted, that the bridges across the Ohio River at Wheeling, in the State of Virginia, and at Bridgeport, in the State of Ohio, abutting on Zane's Island, in said river, are hereby declared to be lawful structures, in their present position and elevation, and shall be so held and taken to be, any thing in any law or laws of the United States to the contrary notwithstanding.

SEC. 7. And be it further enacted, that the said bridges are declared to be and are established post-roads for the passage of the mails of the United States, and that the Wheeling and Belmont Bridge Company are authorized to have and maintain their said bridges at their present site and elevation, and the officers and crews of all vessels and boats navigating said river, are required to regulate the use of their said vessels and boats, and of any pipes or chimneys belonging thereto, so as not to interfere with the elevation and construction of said bridges.

The defendants also moved to dissolve the injunction granted by Mr. Justice Grier.

At December term, 1854, these several motions came on to be heard, and were argued by Mr. Edwin M. Stanton, for the State of Pennsylvania and by Mr. Johnson and Mr. Charles M. Russell, for the defendants.

Mr. Stanton, for the complainant, made the following points, viz:––

1. That at the date of the passage of the act of congress legalizing the Wheeling Bridge, the State of Pennsylvania had by the judgment of the supreme court of the United States, 'a just and legal right to have the navigation of the Ohio River made free by the removal of the bridge, or by its alteration,' in conformity with the decree entered in May, 1852.

2. That this right is not taken away by congress declaring the bridge to be a 'lawful structure,' because congress has no judicial authority to review or reverse the judgment of the supreme court, and such declaration is not within the scope of the legislative authority of congress.

3. It is not taken away by the bridge being 'established as a post-road,' because under the power to establish post-roads, congress has no authority to construct or maintain a road within a State to the injury of private property or individual right.

4. It is not taken away by the requirements of the act imposing on vessels the duty 'not to interfere with the construction and elevation of the bridge,' because those requirements are imposed for an object not intrusted to the general government, nor in execution of its commercial power; and they operate to tax the exports of a State, and give a preference by a regulation of commerce to the ports of one State, over the ports of another.

5. It could not be taken away by any power of congress without just compensation, and none is rendered.

6. It was the duty of the defendants to obey the command of the court, by removing or altering their bridge as required by the decree; and for their disobedience, they are in contempt, and they are in further contempt by rebuilding the bridge in defiance of the decree, and of the injunction issued on the 27th of June, 1854, and should be dealt with accordingly by sequestration and attachment.

7. The decree of the court remains now in force, and the complainant is entitled to have it executed by writ of assistance and to have process to compel the payment of the costs awarded by the decree.

The counsel for the defendants made the following points, viz:

I. On the motion to dissolve the injunction.

1. The injunction was awarded without 'reasonable notice of the time and place' of the application. Act of March 2, 1793, § 5.

2. It was awarded by a judge of a different circuit from that in which it was to operate. Laws U. S. Courts, p. 34, note.

3. It was awarded without requiring bond and security to indemnify the defendant.

4. It was awarded on a bill filed either to carry on the proceedings in a pending suit, or to carry into effect a decree made in a former suit; and this bill does not lie, nor is it in proper form for either purpose. Story's Eq. Plead. § 352, 429; Adams v. Dowdings, 2 Madd, 53.

5. Congress has legalized the Wheeling Bridge; act of August 31, 1852; and had constitutional power to legalize it. See the opinions formerly delivered in the Wheeling Bridge case. The act may be sustained under the power to regulate commerce; Gibbons v. Ogden, 9 Wheat. 1; United States v. Coombs, 12 Pet. 72, (op. 78); or under the power to established postroads; or under both powers. And this, notwithstanding the compact between Virginia and Kentucky; Pollard's Lessee v. Hagam, 3 How. 212, (op. 229, 230;) The Society for propagating the Gospel v. Wheeler, 2 Gallis, C. C. R. 138; Evans v. Easton, 1 Pet. C. C. R. 322. But that compact does not apply.

6. A motion was offered to make absolute the decree in said bill mentioned, and was dismissed by this court for want of prosecution on the 15th day of December, 1853.

II. Against the motion for the writ of assistance.

The same authorities as above and hereafter cited.

III. Against motions for attachment and sequestration.

1. The evidence offered, does not show that the parties have been guilty of contempt.

2. The injunction was, and is a nullity, because awarded without notice, without requiring bond, and by a ...


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