Gilman v. Philadelphia/Dissent Clifford
Mr. Justice CLIFFORD (with whom concurred WAYNE and DAVIS, JJ.), dissenting:

I concur in many of the views expressed by the majority of the court in the introductory part of the opinion which has just been read; and if the decree of the court had been such as the propositions there laid down would seem to demand, I might have felt justified in remaining silent as to certain other propositions advanced in the concluding part of the opinion, which appear to be of an inconsistent character, and to which I can never assent. Such, however, is not the fact. On the contrary, the order of the court is that the decree entered in the court below, dismissing the bill of complaint, be affirmed, and it must be understood that the majority of the court, in directing that decree, adopt the views expressed in the concluding part of the opinion, else they never could have agreed to that result. Regarding the matter in that light, it seems to be an obvious duty that I should express my dissent from the decree of the court, and briefly assign the reasons why I cannot concur in the conclusion to which the majority of the court have come.

1. Complainants are the owners of a valuable wharf property situated upon the River Schuylkill, within the port of Philadelphia, which is a port of entry established by an act of Congress passed at a very early period in the history of the country.  They claim that the River Schuylkill is an ancient public river and common highway, and that it is navigable for ships and vessels of the largest description, from above their wharf property to the sea; that many of the ships and vessels navigating the river are duly enrolled and licensed at the port of Philadelphia and other ports of entry of the United States, under and by virtue of the acts of Congress in that behalf provided; and that foreign vessels, entitled to certain rights of commerce and navigation, have long been accustomed to, and are of right entitled to navigate that river, with cargoes bound to the port of Philadelphia; and that such vessels, in pursuance of that right, have been accustomed to enter their cargoes at the port, and to discharge the same at the wharves of the port bordering on the river, and to load with return cargoes at the said wharves, and clear direct to foreign ports.

Injury alleged is, that the respondents have collected materials, employed workmen, and are now engaged in erecting and constructing a bridge across the channel of the river at Chestnut Street, in the city of Philadelphia, below the place where the wharf property of the complainants is situated. Bridge about to be erected is, as alleged, and as the plan shows, without any draw, and with but a single pier and at an elevation of only thirty-three feet above the ordinary water surface of the river.

Substance of the charge as contained in the bill of complaint is, that the erecting and keeping the bridge over and across the channel of the river, in the manner as proposed and threatened, will impede and obstruct the navigation of the river, and will hinder and interrupt the citizens in their lawful use of the same as a common and public highway; and they also charge that it will hinder and obstruct licenses granted under the enrolment act, and that it will hinder and obstruct the subjects of foreign countries in the exercise of their rights of commerce and navigation; and that it will interrupt, diminish, and greatly tend to destroy the trade, commerce, and business of the citizens upon the river, to the great damage and common nuisance of all the citizens of the United States, and their irreparable injury.

Statement of complainants is, that many millions of dollars have been expended by the citizens of the United States in the construction of works of public improvement, terminating at the head of tide-water navigation on that river, which depend, in a great measure, for their prosperity, usefulness, and value upon the free and unobstructed use of the river; and in this connection they charge that the bridge will greatly injure and lessen the value of their wharf property upon the river, and will divert commerce and trade therefrom, and will thereby diminish the tolls, revenue, and profits of their wharves, and will, in fact, destroy the trade and commerce to and from their wharves, to their great damage and irreparable injury.

Allegation of the bill of complaint also is, that the Schuylkill River, being a navigable river, and having a good tide-water navigation, extending to and beyond the wharf property of the complainants, and for about seven miles from its mouth, and being a branch of the River Delaware-which river passes by and between the States of New Jersey and Delaware-the citizens of all the States are lawfully entitled to its free navigation, and to carry on their lawful commerce without hindrance or obstruction by the respondents, under the pretence of State authority, or any pretence whatever.

Respondents justify, under an act of the General Assembly of the State of Pennsylvania, authorizing them to build the bridge described in the bill of complaint.

2. Complainants insist that the bridge is a public nuisance, and pray that it may be abated, and for such other and further relief in the premises as the nature of the case and equity and good conscience may require. Propositions of the complainants are, that the River Schuylkill is a public navigable river, subject to the power of Congress to regulate commerce with foreign nations and among the several States, as conferred in the Constitution; and that Congress has exercised that power, and regulated the navigation of that river within the meaning of the Constitution, and has thereby secured to the citizens of the several States, by virtue of their authority so conferred by the Constitution, the free and unobstructed use of the river as a paramount right, for all the purposes of commerce and navigation.

Congress, as the complainants say, has exercised the power and regulated the navigation of the river; and their next proposition is, that the bridge as constructed, or threatened to be constructed, interferes with the enjoyment of that use, and is inconsistent with, and in violation of the acts of Congress regulating the navigation, and destructive of the rights derived under them, and that to the extent of that interference with the free navigation of the river, the act of the legislature of the State of Pennsylvania affords to the respondents no authority or justification, because it is in conflict with the acts of Congress, which are the paramount law.

Argument to show that the ground assumed by the complainants is exactly the same as that on which the case of the Wheeling bridge proceeded and was finally decided, is unnecessary, because the proposition stands forever affirmed by the authority of this court, in an opinion pronounced by one of the justices who decided the cause, and who still holds a seat on this bench.  Referring to that opinion, it will be seen that the judge who delivered it first stated the grounds assumed in the bill of complaint, and then said: 'Such being the view of the case taken by a majority of the court, they found no difficulty in arriving at the conclusion that the obstruction of the navigation of the river by the bridge was a violation of the right secured to the public by the Constitution and laws of Congress, nor in applying the appropriate remedy in behalf of the plaintiff.' None of these propositions are denied in the introductory part of the opinion of the majority of the court. On the contrary, the opinion just read repeats the views expressed by Mr. Justice Nelson in the case already referred to, and impliedly indorses those views as a correct exposition of the power of Congress over public navigable rivers emptying into the sea, and of the right of this court to redress private injuries resulting from unlawful obstructions in the same, to the paramount right of navigation.

3. Conceding the correctness of those views as applied in the case in which they were expressed, the opinion of the majority of the court, as just read, sets up a distinction between that case and the case under consideration, and maintains that those views are not applicable to the present case. Stripped of all circumlocution, the supposed distinction, as maintained in the opinion of the majority of the court, is, that in the case at bar it does not appear that Congress has passed any act regulating the navigation of the river described in the bill of complaint. Power of Congress to regulate commerce among the several States, as well as with foreign nations, is fully admitted, and the concession is at least impliedly from the course of the argument-that this court would have jurisdiction in the case, and that the complainants would be entitled to relief, if it appeared that Congress had exercised the power as conferred, and had regulated the navigation of the river within the meaning of the Constitution. Precise doctrine advanced, as I understand the opinion, is, that Congress has not passed any act regulating the navigation of the river, and that inasmuch as there is no Federal regulation upon the subject, the law of the State legislature, authorizing the erection of the bridge, is a valid law, even if the bridge is an obstruction to navigation, because the State law is not in conflict with any act of Congress giving protection to the otherwise paramount right of navigation. Implied admission is, that if there is an act of Congress regulating the navigation of the river, then the right of navigation is a paramount right, and the conclusion must be that, in that event, no law of the State could afford any justification to the respondents in erecting the bridge, if it is a public nuisance and an obstruction to that paramount right. 

4. Dissenting from the opinion of the majority of the court on this point, I hold that Congress has regulated the navigation of this river within the meaning of the Constitution, and that the law of the State, pleaded in justification of the acts of the respondents, so far as it authorizes an obstruction to the free navigation of the river, is an invalid law. Commerce, it is admitted, includes navigation; and it is well settled, on the authority of this court, that in regulating commerce with foreign nations, or among the States, the power of Congress does not stop at the jurisdictional lines of the several States. Express decision of this court is, that commerce with foreign nations is that of the whole United States, and that the power of Congress to regulate it may be exercised in the States wherever the foreign voyage may commence or terminate; and that the commerce among the States cannot be stopped at the exterior boundary of the State, but may be introduced into the interior. 

5. Right of intercourse between State and State was a common-law privilege, and as such was fully recognized and respected before the Constitution was formed. Those who framed the instrument found it an existing right, and regarding the right as one of high national interest, they gave to Congress the power to regulate it. Such were the views of Marshall, C. J., as expressed more than forty years ago; and he added, that in the exercise of this power Congress has passed an act for enrolling or licensing ships or vessels to be employed in the coasting-trade and fisheries, and for regulating the same. Respondents contended that the enrolment act did not give the right to sail from port to port, but confined itself to regulating a pre-existing right so far only as to confer certain privileges on enrolled and licensed vessels in its exercise; but the court promptly rejected the proposition, and held that where the legislature attaches certain privileges and exemptions to the exercise of a right over which its control is absolute, the law must imply a power to exercise the right. Direct adjudication was, that it would be contrary to all reason, and to the course of human affairs, to say that a State is unable to strip a vessel of the particular privileges attendant on the exercise of a right, and yet may annual the right itself.

License, as the word is used in that act of Congress, means, say the court, permission or authority; and the court held that a license to do any particular thing is a permission or authority to do that thing, and if granted by a person having power to grant it, transfers to the grantee the right to do whatever it purports to authorize. Adopting the language of the court in that case, it certainly transfers to him all the right which the grantor can transfer to do what is within the terms of the license.

Ships and vessels enrolled and licensed under the acts of Congress, and no others, are deemed ships and vessels of the United States entitled to the privileges of ships or vessels employed in the coasting trade. Majority of the court, as stated in the opinion just read, admit that a ship or vessel of the United States, which is duly enrolled and armed with a coasting license, such as is required by the enrolment acts, may navigate along the coast of the United States, and may pass from the open sea into the public navigable rivers of the United States, and up the same as far as navigable waters extend. Coming more directly to the case under consideration, the opinion admits that such a ship or vessel has a right, under such an enrolment and with such a coasting license, to navigate from the sea up the river described in the record to the wharves of the complainants.

6. Unrestricted and unexplained, that admission covers everything which the complainants claim, and shows conclusively that they are entitled to relief. But it is said that this right, under the circumstances of this case, is subject to the paramount right of the State to bridge or dam the river, and close it against all commercial intercourse. Extent of the right as conceded, therefore, is, that a ship or vessel duly enrolled and licensed, and sailing from the port of another State, may enter a public navigable river of the United States from the sea, unless the State through which the river flows as it falls into the sea has bridged the river, or constructed a dam across it, before the vessel arrives off the mouth of the river. Plain right of the owner of the vessel, in that state of the case, is to instruct the master to go about and return to the port of departure; but if the river is open when the ship or vessel arrives at its mouth, she may pass up to the highest port of entry, and discharge cargo and load for the return trip.

Her right to return is then undoubted, unless in the meantime the navigation of the river is forever closed by a bridge or dam constructed under the authority of the State, and in that event the owner of the vessel has the same privilege that he has in case of shipwreck. He may direct the master and mariners to return by and.

Doubtless a question may arise as to what is to be done in that state of the case with the impounded vessel and cargo, but, as that question is not involved in the present record, it must be left for future consideration. Such a rule as it seems to me, is contrary to all reason, and absolutely subversive of one of the great interests of the country, which, more than any other, induced the people of the colonies to call the convention which framed the Constitution.

7. Unquestionably the decision of the court in the case of Gibbons v. Ogden proceeded throughout upon the ground that the act for enrolling or licensing ships or vessels, to be employed in the coasting trade and fisheries, and for regulating the same, was of itself a sufficient regulation of the navigation of all the public navigable rivers of the United States to secure to the ships and vessels of the United States, sailing under the coasting license, the free navigation of all such public highways. Best exposition of the decision of the court in that case is to be found in the decree, where the court say that the several licenses set up by the appellant in his answer to the bill of complaint, which were granted under an act of Congress passed in pursuance of the Constitution of the United States, gave full authority to those vessels to navigate the waters of the United States for the purpose of carrying on the coastwise trade, any law of the State to the contrary notwithstanding; and that so much of the laws of the State as prohibited vessels so licensed from navigating the waters of the State by means of fire or steam is repugnant to the Constitution of the United States and void. Express as the language of that decree is, it is incomprehensible to me how it can be the subject of any difference of opinion.

Complete protection is afforded by the doctrines of that great case to all ships and vessels of the United States, duly enrolled and licensed, in navigating all the public navigable rivers of the United States which empty into the sea or into the bays and gulfs, which form a part of the sea, and they are all treated as arms of the sea and public revers of the United States. None of the judges who participated in that decision even intimated that the Hudson was anything else than an arm of the sea and a public navigable river of the United States. Public navigable rivers, whose waters fall into the sea, are rivers of the United States in the sense of the law of nations and of the Constitution of the United States. They are so treated by all writers upon public law, and there is no well-considered decision of the Federal courts which does not treat them in the same way. 

8. Claim of the appellants, however, does not rest alone upon the doctrines of that case, but the proofs show that their wharf property and the river at the place where it is situated are both within a port of entry, as established by an act of Congress.

Prior to the adoption of the Constitution the power to establish ports of entry was in the several States, but this court held, in the last opinion delivered in the case of the Wheeling bridge,  that the power in that behalf, was surrendered under the Constitution to the Federal Government, and left to Congress. Eighth section of the act of the 2d of March, 1799, provides that the district of Philadelphia shall include all the shores and waters of the River Delaware and the rivers and waters connected therewith lying within the State of Pennsylvania; and that the city of Philadelphia shall be the sole port of entry for the same. 

Subsequent provision is, that the port of entry and delivery for the district of Philadelphia shall be bounded by the navy yard on the south, and Gunner's Run on the north, anything in any former law to the contrary notwithstanding. 

Appellees suggest rather than argue that the mouth of he river described in the bill of complaint is not included in that description, but the point is of no importance, because it is clear, beyond controversy, that the river at the place where the wharf property of the complainants is situated, and for a considerable distance above and below it, is within the acknowledged limits of the port. Ample confirmation of this view, if any be needed, will be found in the case of Devoe et al. v. Penrose Ferry Bridge Co.,  which was decided by Mr. Justice Grier. He said the commerce on River Schuylkill below the port of Philadelphia is as much entitled to protection as that of the Ohio, Mississippi, Delaware, or Hudson; and that the complainants in that case had the same right to the interference of the court in their behalf as was shown by the State of Pennsylvania in the Wheeling bridge case. Although it is supposed the views of the learned judge have undergone some change as to the jurisdiction of the Federal courts, it has always been supposed that he was entirely accurate in all the matters of fact on which the judgment of the court was founded.

9. Other acts of Congress are cited by the complainants as supporting the proposition under consideration, but it will not be necessary to give more than two of them any special examination. First section of the act of the 2d of March, 1819, divides the sea-coast and navigable rivers of the United States into two great districts, and the declared purpose of creating the districts is 'for the more convenient regulation of the coasting trade.' All the districts on the sea-coast and navigable rivers between the eastern limits of the United States and the southern limits of Georgia are included in the first district, and the second district includes all the districts on the sea-coast and navigable rivers between the River Perdido and the western limits of the United States. 

Subsequent acts created a third great district, and provided that it should include all the ports, harbors, sea-coasts, and navigable rivers between the southern limits of Georgia and the River Perdido, and that it should be subject to all the regulations and provisions of the prior act. 

Doubt, therefore, cannot be entertained that all of the public navigable rivers of the United States falling into the sea, or into the bays and gulfs which form a part of the sea, are included in one or the other of the three great commercial districts expressly established for the convenient regulation of the coasting trade.

Looking at these several acts it is not surprising that Marshall, C.J., should have said, in Gibbons v. Ogden, that 'to the court it seems clear that the whole act on the subject of the coasting trade, according to those principles which govern the construction of statutes, implies, unequivocally, an authority to licensed vessels to carry on the coasting trade.' Strong support to that view of the law is also derived from the case of the Wheeling bridge, as appears in the first opinion delivered in the case. 

Remarking upon this view of the case, the court say in effect that the navigability of the Ohio River is a historical fact which all courts may recognize. They add that for many years the commerce upon it has been regulated by Congress, under the commercial power, by establishing ports, requiring vessels which navigate it to take out licenses and to observe certain rules for the safety of their passengers and cargoes. Every one of those acts of Congress, from the moment they were passed, became and are, as applicable to the river described in the bill of complaint as to the Ohio, and there can be no doubt, as it seems to me, that they must be held to have the same effect. Nothing has been said respecting the case of Wilson v. Blackbird Creek,  because, in the view I take of it, the opinion has nothing to do with the present question. Judgment was rendered by the same court in that case which gave judgment in the case of Gibbons v. Ogden, and there is not a man living, I suppose, who has any reason to conclude that the constitutional views of the court had at that time undergone any change.

Instead of overruling that case, it will be seen that the Chief Justice who gave the opinion did not even allude to it, although as a sound exposition of the Constitution of the United States it is second in point of importance to no one which that great magistrate ever delivered. Evidently he had no occasion to refer to it or to any of its doctrines, as he spoke of the creek mentioned in the case as a low, sluggish water, of little or no importance, and treated the erection described in the bill of complaint as one adapted to reclaim the adjacent marshes and as essential to the public health, and sustained the constitutionality of the law authorizing the erection upon the ground that it was within the reserved police powers of the State.

Conclusion is, that Congress has regulated the navigation of this river, and that the State law under which the respondents attempt to justify is in conflict with those regulations, and therefore is void, and affords no justification to the respondents. Admitting the facts to be so, then the complainants are entitled to recover even upon the principle maintained in the opinion of the majority of the court.

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