Pennsylvania v. Wheeling and Belmont Bridge Company (59 U.S. 421)/Concurrence Daniel
Mr. Justice DANIEL.

In the decision of the court dissolving the injunction and refusing the coercive measures asked for in this case, I entirely concur. But as, in the argument by which the court have proceeded to their conclusions, important questions of constitutional law appear to me to have been, some of them, passed over without consideration, and others inaccurately expounded, convictions of duty impel me to express my own interpretation of those questions. The correctness or incorrectness of that interpretation is left to the judgment of those whom curiosity or interest may incline to its examination; but whether examined, or approved, or condemned, or otherwise, it has been given because commanded by a sense of obligation, from obedience to which I hold that no one is or can be absolved.

When the controversy now revived before us was, in January, 1850, for the first time brought to our attention, there suggested themselves to my mind serious difficulties with respect both to the authority and the mode by which it was attempted to place that controversy within the cognizance of this tribunal.

I was unable to perceive by what warrant a judge of a circuit court, circumscribed in his jurisdiction both as to parties and to subjects-matter of litigation within specified limits, could claim cognizance as to parties and subjects-matter confessedly beyond the prescribed bounds of his jurisdiction. Still less could I comprehend by what warrant a circuit judge could, by an interlocutory order at chambers, relative to rights of person and property beyond the bounds of his jurisdiction, transfer a controversy affecting subjects thus situated to the supreme court of the United States.

An attempt to avoid these difficulties (for they were not directly met) was essayed, by the assumption that the application to the circuit court might be adopted here, as the commencement of an original suit by the State of Pennsylvania, that State possessing the right to institute an action in the supreme court, under the provision in the constitution which defines the original jurisdiction of that court. Accordingly, this case was received and treated as one authorized by the constitution, in virtue of the original jurisdiction vested exclusively in the supreme court a jurisdiction which an inferior court, or a judge of an inferior court, could have no power to exert.

However irregular and unauthorized the first proceeding in this case appeared to me, the granting of the second injunction, and the measures directed for enforcing it, I am constrained to regard as still more irregular,-a much wider departure from precedent or legitimate authority.

This second proceeding brings to our notice the following state of facts: An application to a circuit judge at chambers, to control by compulsory process persons and property, both of them situated beyond and without the bounds of his legitimate power. This application is granted at chambers, and not by a proceeding in court at all; and the order of the judge so made, and the mandate directed by him singly for the execution of his order, are entitled as a proceeding in and before the supreme court, and as an act of the supreme court; and the peculiar and appropriate officer of this tribunal is ordered to carry that mandate into effect.

According to my interpretation of the constitution of the United States, the supreme court is a distinct, aggregate, collective body-one which can act collectively, and in term or in united session only. It cannot delegate its functions, nor can it impose its duties upon any number of the body less than a quorum, constituted of a majority of its members. Much less can a single judge be clothed with its joint powers, to be wielded by him at any time or in any place, or to any extent to which his individual discretion may point. Yet, in the case before us, we have a proceeding begun, prosecuted, and consummated in the name of the supreme court-nay, denominated their proper act when eight of the nine judges constituting this tribunal had no participation in that proceeding, perhaps never even suspected its existence. It may very well be inquired whether a majority of the judges, either acting individually or collectively in court, would, on principles of power or of justice, have sanctioned the course pursued in this case? For one, I can answer that by him it would have been unhesitatingly rejected.

Yet this course it is now attempted to justify and sustain, under the 5th section of the act of congress of the 2d of March, 1793, (1 Stats. at Large, 334,) which provides that 'writs of ne exeat and injunction may be granted by any judge of the supreme court in cases where they might be granted by the supreme court or a circuit court.'

The inference sought to be drawn from the provision just cited, I propose cursorily to examine, with the view of showing its incorrectness as a deduction from the language or the purposes of that provision, and especially with the view of exposing the total inapplicability of the attempted conclusion to the facts developed by the record before us.

The subjects embraced within the proposed inquiry, namely, the distribution and exercise of power in the different divisions of the federal judiciary-the definition and establishment of the distinctive boundaries within which those several divisions should revolve, are matters of an importance much too grave to be incidentally or lightly disposed of. They are matters inseparable alike from the order and harmony and stability of public authority, and from the safety and enjoyment of private right.

By the act of congress establishing the judicial courts of the United States, (1 Stats. at Large, 81,) no power was conferred upon the judges of the courts of the United States to grant writs of injunction; nor was the power to grant an injunction eo nomine conferred upon any of the courts. This authority was, however, as to the courts, given by implication in the 14th section of the statute, which authorized the courts therein before enumerated, to grant writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions.

The feature of this provision proper for consideration here is this; that the power was conferred upon the courts, and not upon the judges, and was given in cases only in which it was necessary for the exercise of the jurisdiction of those courts. What was the jurisdiction of the circuit courts, as to persons or property, or both? With respect to proceedings in rem, as the process of the court could not run beyond the prescribed limits of its appropriate district, the jurisdiction or power of the court could be coextensive only with those limits, and was consequently, impotent and null as to any direct control of the subject matter when situated beyond them. And with respect to the jurisdiction over persons or parties, we find it declared by the 11th section of the judiciary act, that 'no civil suit shall be brought before either of the said courts, against an inhabitant of the United States, in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving the writ;' and so careful have been the authors of this restriction to insure its effectual observance, that in the same section of the statute they have prohibited every transfer of the interests or rights of parties made with the view of evading its operation. An interpretation of the 11th section of the judiciary act-one conclusive upon the jurisdiction of the circuit courts-has been declared in repeated decisions by this court, as may be seen amongst other instances which might be adduced, in the cases of M'Micken v. Webb, 11 Pet. 36; of Toland v. Sprague, 12 Pet. p. 300; and of Keary v. The Farmers and Mechanics' Bank of Memphis, 16 Pet. p. 89. In the second of the cases just cited, the effect of the statute in defening the jurisdiction of the circuit courts is examined with much minuteness and particularity.

It follows, then, by necessary induction, both from the language of the judiciary act and from the interpretation thereof by this court, that the jurisdiction-as auxiliary to which, and as a means of enforcing its exercise, the power to grant injunctions was conferred upon the circuit courts-is that jurisdiction restricted to persons and property found within the prescribed local bounds assigned to those courts.

But it has been argued, that whilst the restrictions above mentioned may be imposed upon the courts as such, in the most solemn and deliberate exercise of their functions, the judges individually, out of court, and distinguished as they are by the language of the law from the courts, have been released from the same or similar restraints, and have been clothed with power separately to exert this extraordinary jurisdiction over persons and property residing or situated anywhere and everywhere within the United States. Nothing more is required, according to this argument, to overstep the fixed and designated boundary of the courts' authority than the sic jobeo of the individual judge.

In considering the interpretation now placed upon the 5th section of the act of March 2, 1793, the mind is impressed with the irregularity and inconsistency which this interpretation implies; and with the inutility and inefficiency for any beneficial object, of the power it is said to have created. It is certainly a novelty, and an anomaly in jurisprudence, to allege in a judicial officer acting out of court, and as it were in pais, the existence of a jurisdiction over persons and property with respect to which he has no power to adjudicate in court, and his acts in relation to which he possesses no authority to reverse or modify or even to revise. Yet this is precisely the attitude which the circuit courts and the judges of those courts are made to occupy in relation to each other, by the interpretation now attempted.

In the next place, so far as usefulness or efficiency may be supposed to have been the objects of the statute, much of these are taken away by denying to the courts the power claimed for the judges out of court to act upon persons or property beyond the bounds of the respective circuits. The same necessity which would dictate a resort to one, requiring equally a resort to both or either.

Some obscurity and difficulty is perceived and felt as arising from that portion of § 5 of the act of March 2, 1793, which permits the judges of the circuit courts to grant injunctions in cases wherein they might be granted by the supreme court; but this language it is thought, when correctly understood, operates no change, or extension, or enlargement of the powers and jurisdiction of the circuit courts, or of the judges of those courts. If indeed it should be contended that this section of the statute was designed to confer, or by its terms purported to confer upon the circuit courts, or upon the judges thereof, the jurisdiction and functions of the supreme court, then must that section, so far at least, be rejected as absolutely void, being in violation of the constitution.

The supreme court of the United States is the creature of the constitution. By this instrument its powers and jurisdiction original and appellate, are conferred and defined; these are peculiar and exclusive, and by no legislation can they be enlarged or diminished, much less can they either in whole or in part, be delegated to other tribunals or officers of any grade or description.

I am clearly of the opinion therefore, that by the 5th section of the act of 1793, no power to exercise authority or jurisdiction appertaining to the supreme court was, or could have been, conferred either upon the circuit courts or upon the judges thereof; but that this section must be understood as simply conferring upon the judges a power previously confined to the courts alone-namely, the power to grant injunctions, and this subject to every limitation by which the circuit courts were controlled.

But the interpretation of the act of 1793 now contended for, broad as it is, still is not wide enough to cover the proceeding which it is now used to shield and protect. To accomplish this end, it must be stretched still more; and until it can be made to comprise an identification of a single judge of the supreme court with the entire court itself, and the transformation of an act by an individual judge-an act performed without the accustomed formalities of a regular court-into a proceeding by the supreme court in the exercise of its constitutional and only legitimate functions.

The order granting the second injunction in this case, were it obnoxious to no other objection, appears to me to be unwarranted and void, for the reason that it assumes to contravene and overrule in effect, if not in terms, an existing decree of this court, between these same parties and upon the same subject-matter.

The decree of this court, first pronounced in February, 1852, decided that the suspension bridge at Wheeling was an obstruction to the passage of steamboats on the Ohio River, and that unless it should be elevated to the height of one hundred and eleven feet above low-water mark, before the 1st day of February next following this decree, it should be abated. Upon a subsequent day of the same term, the decree was so modified as to substitute for the requirement of increased elevation, or of the alternative of an abatement, permission to the proprietors of the suspension bridge to construct in the permanent wooden bridge, which spans the western channel of the river, a draw of a capacity sufficient for the passage of steamboats of the largest class; the additional distance or the short delay (of a few minutes only) incident to this arrangement constituting, as expressed in the language of this court, 'no appreciable injury to commerce.' Liberty was reserved by this decree to either party to 'move the court in relation to this matter on the 1st Monday of February ensuing.' Vide 13 How. 625.

In obedience to a notice from the complainant, under the liberty reserved in the decree, the defendants appeared on the regular return day by counsel in court; but the complainant failing to prosecute this motion, it was permitted to be discontinued. To a second notice to the defendants they again appeared, but the complainant again making default, was formally called, and the motion was dismissed.

From this failure or refusal on the part of those who were authorized to move in the case, this court, for aught that could be judicially known to them, might have been justified in the conclusion, that every thing they had ordered had been complied with, or had been arranged to the mutual satisfaction of the parties. Certainly up to this period, there was no fact regularly and formally before them, on which to found or justify process for contempt. Under this state of things, the suspension bridge at Wheeling remained, and was authorized to remain.

This court had prescribed the conditions, according to which it was to stand or to be abated, and had designated the parties by whom, the modes by which, and the extent to which, the decree might be carried into effect.

In this attitude of the case, a mandate is issued from a judge at chambers, superseding the mode pointed out by this court for the execution of its decree, and wholly irrespective of any condition according to which that decree had been, by its own terms, modified, as above mentioned.

The above mandate assumes to order, in the name of this court, that no bridge of an elevation less than that prescribed by this order, shall be thrown across the Ohio from Zane's Island to Wheeling, regardless altogether of any facility, however complete, which might be provided for the passage of steamboats by the western channel of the river.

This mandate therefore, was itself a palpable violation of the decree of this court, and of rights reserved to the defendants by that decree-rights which they twice evinced their readiness to vindicate before this court, in opposition to the reiterated, but subsequently abandoned attempts by the complainant to assail them.

Can contempt, then, be affirmed or imputed with reference to a readiness to yield obedience to the regular authority of the court, or with reference to an unwillingness to comply with a proceeding not merely void in itself, but one also in manifest violation of the constitution and the law?

To which it may be asked, were the defendants bound to conform to the authority of this court, deliberately announced upon a question regularly before them as a court, or to an order from a single judge, obviously in contravention of the former, assuming to exercise an authority belonging only to the court as an aggregate body, and by which assumption this court is placed in an attitude adversary to its own decree?

There is still another view of this case, which, to my mind, is conclusive against the proceedings on the part of the circuit judge, and equally so against every motion now urged before us as founded thereon, or on either the principal or modified decree heretofore pronounced in this cause.

Previously to the application for the second injunction, the congress of the United States, by a formal statutory enactment, declared the bridges which had been erected over the Ohio at Wheeling in Virginia, and at Bridgeport in the State of Ohio, abutting on Zane's Island, to be lawful structures in their present position and elevation, 'any thing in any law or laws of the United States to the contrary notwithstanding.' And they further enacted, 'that the officers and crews of all vessels and boats navigating the said river, are required to regulate the use of their said vessels and boats, and any pipes, or chimney, or chimneys belonging thereto, so as not to interfere with the elevation and structure of the said bridges.' Vide 10 Stats. at Large, 112.

Against the effect of these very explicit enactments, it has been contended that they are void, because, as it is said, they reverse a decision of this court, which congress has no power to do. In answer to this argument, it may be conceded that the position assumed by it might be true with reference to the adjustment or security of private rights vested under previously existing laws or adjudications; but such a position is wholly inapplicable to measures of public policy falling appropriately within the legislative competency, and much less can it have any influence to warrant in any other department of the government the exercise of powers vested exclusively in the national legislature.

It is impossible to read either the original or the modified decree, by the majority of the court in this cause, without perceiving that both these decrees, as well as the entire argument in support of them, were based upon the single assumption that the erection of the suspension bridge at Wheeling was an interference with the right to regulate commerce vested in congress by the constitution. It is equally manifest, from the arguments and opinions of the minority of the court, that the right in congress to regulate commerce is not only conceded by the minority, but the exclusiveness of that power in congress is insisted upon. These later opinions maintain the doctrine that congress alone are competent to exercise this right or power, and can neither be controlled nor anticipated with respect to it by the judicial department, upon any fancied necessity, nor upon any supposed neglect, or omission, or incompetency, which the latter may impute to congress, and may imagine the judicial department called upon to remedy.

In these views are seen essentially, nay explicitly, the diversity existing in the opinions of the majority and minority of the judges, as declared in this case.

Congress have, by statute already referred to, undertaken to regulate the commerce upon the Ohio River, so far as the matters involved in this controversy are concerned. And who shall question their power to do this? Does it belong to this court, under any article or clause of the constitution, or of any statute, to assume such a superiority? Congress have ordained that the vehicles of commerce on the Ohio, the steamboats, shall so graduate the height of their chimneys, as not to interfere with the bridges at Wheeling, as existing at the date of the statute. By this they have at least declared that these bridges are deemed by them no invasion either of the power or the policy of congress with reference to the commerce of the Ohio River. They have regulated this matter upon a scale by them conceived to be just and impartial, with reference to that commerce which pursues the course of the river, and to that which traverses its channel, and is broadly diffused through the country.

They have at the same time by what they have done, secured to the government, and to the public at large, the essential advantage of a safe and certain transit over the Ohio-an advantage which, previously to the erection of the Wheeling bridge, was greatly desired but never attained.

In what has been done by congress, I can have no doubt that they have acted wisely, justly, and strictly within their constitutional competency. By their action they have completely overthrown every foundation upon which the decrees of this court, the orders of the circuit judge, and every motion purporting to be based upon these or either of them, could rest. I am, therefore, of the opinion that each and every motion submitted by the complainant under color of the decrees heretofore pronounced in this cause, or of the injunction awarded by the judge of the circuit court, should be overruled; that the injunction awarded as aforesaid should be dissolved, and the bill praying for that injunction should be dismissed; and that in each instance the defendants should be decreed their costs.

This court at a prior term, to wit, on 27th May, 1852, having declared that the bridge of the respondents was an obstruction to the navigation of the Ohio River, and that it did a special damage to the complainant, and having decreed that the same should be altered as thereby directed, or removed by the respondents, and the complainant having subsequently moved this court for writs of assistance, of sequestration and of attachment against the said respondents, and also for a taxation of the costs decreed by this court, and for the process of this court to enforce the payment thereof by the said respondents, and the congress of the United States having by an act passed on the 31st of August, 1852, entitled 'An act making appropriations for the service of the Post-Office Department, during the fiscal year ending the 30th of June, 1853, and for other purposes,' provided for the navigation of the Ohio River, and so regulated the navigation of the said river as to be consistent with the maintenance of the said bridge. And the respective parties having been fully heard by counsel, and after mature deliberation thereupon had by this court, it is now here considered and decreed by this court that the said motion for writs of assistance, sequestration, and attachment, be and the same is hereby overruled, and that the said writs be and they are hereby denied. And it is further considered and decreed by the court that the said complainant do have and recover from the said respondents the costs of the said complainant as decreed by this court on the aforesaid 27th day of May, A. D. 1852, to be taxed by the clerk, and that the said respondents do pay the same to the complainant within ninety days from this date; and that, in default of such payment, that execution do issue therefor to be directed to the marshal of the United States for the District of Columbia to enforce the same.

Order-with respect to the bill filed before Mr. Justice Grier and injunction issued by his order.