Wheeling Bridge Case in the Supreme Court
- from "Semi-Centennial History of West Virginia", James Morton Callahan, 1913
RIVALRY FOR HEADSHIP ON THE OHIO.
(ILLUSTRATED IN THE WHEELING BRIDGE CASE.)
The Wheeling Bridge Case in the Supreme Court in 1849-52 and 1854-56 is as interesting through its relations to the industrial history of the period as it is from the standpoint of constitutional questions involved. Its study introduces us to the earlier rivalries of coast cities to secure the trade of the West, the systems of internal improvements planned to reach the Ohio, the development of trade and navigation and the extension of improvements and regulations by Congress on the Ohio, and the rivalries of Pittsburg and Wheeling to obtain the hegemony by lines of trade and travel converging and concentrating at their gates.
Pennsylvania was early interested in plans of internal improvements to connect Philadelphia with Pittsburg and the free navigation of the Ohio. Occupying a central position, resting eastward on the Atlantic, north on the Lakes, and flanking on the Ohio which connected her with the Gulf and the vast regions of West and South, she had advantages over other states for both foreign and domestic commerce. These advantages she cultivated from the earliest period. In 1826, influenced by the improved conditions of steam navigation on western waters, by the effects of the Cumberland road in diverting to Wheeling much of the westward travel which had formerly passed down the Monongahela to the Ohio at Pittsburg, and by the success of the Erie canal which also diverted travel and trade from Pittsburg, she began a system of canals to connect the Atlantic and the Lakes with the Ohio, which had begun to bring to her western gates the commerce from the Gulf and the Mississippi, and at great expense and sacrifice, she forced her way westward, from the end of the horse railway at Columbia, up the Juniata to Hollidaysburg. Then in 1835 by an inclined plane portage railway for thirty-eight miles across the Appalachians, at the base of which other enterprises halted, she connected with the western canal from Johnstown to Pittsburg. Over this route she transported both passengers and goods, carrying to eastern markets the rice, cotton and sugar of the South, the bacon and flour of the West, and the furs and minerals of the Northwest, In 1844 her connections with the Ohio were improved by a packet line established between Pittsburg and Cincinnati. By 1850, these improvements, together with her interest in a slack water navigation from Pittsburg to Brownsville and up the Youghoigheny to West Newton, and the improtance [sic] of the ship-building industry at Pittsburg, made her watchful of the problems of navigation on the Ohio. At the solicitation of her legislature, and to meet the needs of growing commerce, Congress, beginning its policy of improvement of Ohio navigation in 1824, had appropriated large sums by 1850 to remove obstruction in the river.
In the meantime, Wheeling, whose growing importance had received its first stimulus from the completion of the Cumberland Road to the Ohio in 1818, threatened to rival Pittsburg in prosperity, wealth, and greatness, and to become the head of navigation on the Ohio as well as the western terminal to the first railway to reach the western waters from the East, and a center of other converging lines from both East and west. After persevering efforts of nearly a quarter century, she scored her greatest victory by securing the route of the Baltimore and Ohio Railway whose charter of 1827 had prohibited the termination of the road at any point on the Ohio below the Little Kanawha and whose engineers on reconnaissance and surveys in 1828 had considered several routes terminating on the Ohio between Parkersburg and Pittsburg. Coincidently, after the unsuccessful efforts of over half a century she secured the first bridge across the Ohio, a structure which she regarded as a logical link and incidental part of the national road, and a fulfilment of the provisions of the act of 1802 by which Ohio had been admitted as a state, but which Pittsburg regarded as an injury to navigation - obstructing it much more effectively than congress had been able to improve it by her recent expeditures of public money.
The story of the efforts to obtain the bridge is a long one, reflecting the industrial progress and energy of the West and the evolution of national policies and punctuated with the spice and pepper of rival memorials and resolutions. In 1816, during the construction of the national road from Cumberland to the Ohio, the legislatures of Virginia and Ohio incorporated the Wheeling and Belmont Bridge Company and authorized it to erect a bridge which, however, was to be treated as a public nuisance liable to abatement if not constructed so as to avoid injury to navigation. Unable to raise funds necessary for the work, the Company in 1830 asked for a national subscription to the bridge, and its request received a favorable committee report in the House. Two years later citizens of Pennsylvania submitted to the House a memorial against the erection of the bridge.
Under the old charter of 1816 the company in 1836 built a wooden bridge from the west end of Zane's Island to the Ohio shore, leaving the stream east of the island free to navigation. At the same time petitions to Congress backed by resolutions of the Ohio legislature, urged the construction of the bridge over both branches of the stream in order to facilitate trade and travel and to prevent inconvenience and delay in transporting the mails by the ferry, which was frequently obstructed by ice and driftwood and especially so in the great floods of 1832. A congressional committee on roads and canals made a favorable report recommending the completion of the Cumberland road by the erection of the bridge; but the objection was made that the bridge might prove an obstruction to the high chimneys of the steamboats, whose convenience Congress did not think should yield to the benefits of the bridge. In 1836, government engineers, after a survey made under the direction of the war department, presented to Congress a plan for a suspension bridge with a moveable floor which they claimed would offer no obstruction to the highest steamboat smoke-stacks on the highest floods, but the plan was rejected. In 1840 the postmaster general recommended the construction of the bridge in order to provide for safe and prompt carriage of mails which had been detained by ice from seventeen to thirty days each year; but his recommendation was buried in the archives.
Early in 1844, Pennsylvania, awakened by the fear of plans to make Wheeling the head of navigation, became more active in her opposition to what seemed an imminent danger to her interests and the interests of Pittsburg. By action of her legislature she opposed the request of Wheeling and the Ohio legislature for national appropriations to construct the bridge and soon took new steps to secure the construction of a railroad from Harrisburg to Pittsburg. Nevertheless, the House committee on roads and canals, deciding that the bridge could be constructed without obstructing navigation, reported a bill making an appropriation and submitting a plan of Mr. Ellet for a simple span across the river, at an elevation of 90 feet above low water; but those who spoke for Pennsylvania urged the specific objection that 90 feet would not admit the passage of steamboats with tall chimneys and defeated the bill. In vain did Mr. Steenrod, the member from Wheeling, propose hinged smoke stacks for the few tall-chimneyed boats, and press every possible agrumnt [sic] in favor of the bridge.
Opposition to the bridge increased after 1845 with the increase in the size of the Pittsburg steamboat smoke-stacks - an improvement by which speed power was increased through increased consumption of fuel.
Baffled in her project to secure the sanction and aid of Congress for a bridge which Pennsylvania regarded as a plan to divert commerce from Pittsburg by making Wheeling the head of navigation, Wheeling next resorted to the legislature of Virginia in which the remonstrating voice of Pennsylvania could not be heard. On March 19, 1847, the Bridge Company obtained from the legislature a charter reviving the earlier one of 1816 and authorizing the erection of a wire suspension bridge, but also providing that the structure might be treated as a common nuisance, subject to abatement, in case it should obstruct the navigation of the Ohio, "in the usual manner" by steamboats and other crafts which were accustomed to navigate it. Under this charter the company took early steps to erect the bridge. At the same time, and coincident with the beginning of construction on the Harrisburg and Pittsburg railway at Harrisburg under its charter granted by the Pennsylvania legislature on April 13, 1846, Wheeling managed to secure a promise of the western terminal of the Baltimore and Ohio railway which after a long halt at Cumberland received a new charter from the Virginia legislature and prepared to push construction to the Ohio ahead of the Pennsylvania line. The possible strategic and economic effects of the Baltimore and Ohio terminal at Wheeling increased the activity of Pittsburg against the bridge, which the engineer of the Pennsylvania and Ohio railway openly declared was designed as a connecting link between the Baltimore and Ohio and the state of Ohio by which Wheeling was also endeavoring to make herself the terminal of the Ohio railway which Pittsburg sought to secure.
A determined struggle followed. Before its cables were thrown across the river, the Bridge Company received legal notice of the institution of a suit and an application for an injunction. The bill of Pennsylvania filed before the United States supreme court in July, 1849, charged that the Bridge Company under color of an act of the Virginia legislature, but in direct violation of its terms was preparing to construct a bridge at Wheeling which would obstruct navigation on the Ohio and thereby cut off and divert trade and business from the public works of Pennsylvania, and thus diminish tolls and revenues and render its improvements useless. In spite of the order of Judge Grier (August 1, 1849), the Bridge Company continued its work, and in August, 1849, Pennsylvania filed a supplemental bill praying for abatement of the iron cables which were being stretched across the river. The Bridge Company continued to work and completed the bridge. The state treasurer of Pennsylvania reported that it threatened to interfere with the business and enterprise of Pittsburg whose commercial prosperity was so essential to the productiveness of the main line of the Pennsylvania canal. In December, 1849, Pennsylvania filed another supplemental bill praying abatement of the bridge as a nuisance, representing that the structure obstructed the passage of steamboats and threatened to injure and destroy the shipbuilding business at Pittsburg. With no appeal to force (such as had recently occurred on the Ohio-Michigan frontier), or blustering enactments of state sovereignty, or threats of secession, she sought a remedy by injunction against a local corporation. In January, 1850, the Pennsylvania legislature unanimously passed a resolution approving the prosecution instituted by the attorney general. At the same time the Bridge Company secured from the Virginia legislature (on January 11, 1850) an amendatory act declaring that the height of the bridge (90 feet at eastern abutment, 93 1/2 feet at the highest point and 62 feet at the western abutment above the low water level of the Ohio) was in conformity with the intent and meaning of the charter.
In the presentation of the case before the Supreme court, the attorney general of Pennsylvania and Edwin M. Stanton were attorneys for Pennsylvania and Alexander H. H. Stuart and Reverdy Johnson for the Bridge Company.
The counsel for Pennsylvania urged that the bridge had been erected especially to the injury of Pittsburg (the rival of Wheeling in commerce and manufacture) whose six largest boats (those most affected by the bridge) carried between Pittsburg and Cincinnati three-fourths of the trade and travel transported by the Pennsylvania canal. "To the public works of Pennsylvania the injury occasioned by this obstruction is deep and lasting," said Stanton, "The products of the South and West, and of the Pacific coast are brought in steamboats along the Ohio to the western end of her canals at Pittsburg, thence to be transported through them to Philadelphia, for an eastern and foreign market. Foreign merchandise and eastern manufactures, received at Philadelphia, are transported by the same channel to Pittsburg, thence to be carried south and west, to their destination, in steamboats along the Ohio. If these vessels and their commerce are liable to be stopped within a short distance as they approach the canals, and subject to expense, delay and danger, to reach them, the same consequence to ensue on their voyage, departing, the value of these works must be destroyed."
The Bridge Company, through its counsel admitting that Pennsylvania had expended large amounts in public improvements terminating at Pittsburg and Beaver over which there was a large passenger and freight traffic, alleged the exclusive sovereignty of Virginia over the Ohio, submitted the act of the Virginia legislature authorizing the erection of the bridge, denied the corporate capacity of Pennsylvania to institute the suit, and justified the bridge as a connecting link of a great public highway as important as the Ohio and as a necessity recognized by reports of committees in Congress. It cited the example set by Pennsylvania in bridging the Allegheny, in authorizing a bridge across the Ohio below Pittsburg at thirteen feet less elevation than the Wheeling bridge, and in permitting the bridging and damming of the Monongahela by enterprising citizens of Pittsburg under charter from the state. It declared that the bridge was not an appreciable inconvenience to the average class of boats and would not diminish the Pittsburg trade, and suggested that the chimneys of steamboats should be shortened or put on hinges for convenience in lowering. It also contended that the bridge was necessary for transporting into the interior of the passengers as much of the freight which would be diverted from the streams by the greater speed and safety of railroads which would soon concentrate at Wheeling.
The court, accepting jurisdiction, appointed Hon. R. H. Walworth, a jurist of New York as special commissioner to take testimony and report. The report indicated that the bridge obstruction would divert part of the total traffic (nearly fifty millions annually), from lines of transportation centering at Pittsburg to the northern route through New York or to a more southern route. Of the nine regular packets which passed through Wheeling in 1847, five would have been unable to pass under the bridge (for periods differing in length) without lowering or cutting off their chimneys. The passage of three of the Pittsburg-Cincinnati packets had been actually stopped or obstructed. One on November 10, 1847, was detained for hours by the necessity of cutting off the chimneys. Another, the Hibernia on November 11, 1849 was detained thirty-two hours and was obliged to hire another boat to carry to Pittsburg the passengers except those who preferred to cross the mountains via Cumberland. Later, she was twice compelled to abandon a trip once hiring another boat, and once landing her passengers who proceeded east to Cumberland. Two accidents had also occurred.
The report indicated a preponderance of evidence against the safety of lowering the chimneys, which at any rate was regarded as a very slow and expensive process. Although the commissioner recognized that it would be a great injury to commerce and to the community to destroy fair competition between river and railroad transit by an unnecessary obstruction to either, and recognized the propriety of carrying railroads across the large rivers if it could be done without impairing navigation, he concluded that the Wheeling bridge was an obstruction to free navigation of the Ohio. Of the 230 boats on the river below Wheeling, the seven boats of the Pittsburg-Cincinnati packet line were most obstructed by the bridge. They conveyed about one-half the goods (in value) and three-fou[r]ths of the passengers between the two cities. Since 1844, they had transported nearly a million passengers.
The Wheeling Bridge Company complained that Mr. Walworth had given the company no chance to present its testimony.
The decision of the court was given at the adjourned term in May, 1852. The majority of the court (six members) held that the erection of the bridge, so far as it interfered with the free and unobstructed navigation of the Ohio, was inconsistent with and in a violation of acts of Congress, and could not be protected by the legislation of Virginia because the Virginia statute was in conflict with the laws of Congress.
Justice McLean who delivered the opinion of the court, held that since the Ohio was a navigable stream subject to the commercial power of Congress, Virginia had no jurisdiction over the interstate commerce upon it, and that the act of the Virginia legislature authorizing the structure of the bridge so as to obstruct navigation could affiord no justification to the Bridge Company. However numerous the railroads and however large their traffic, he expected the waterways to remain the great arteries of commerce and favored their protection as such instead of their obstruction and abandonment. He decided that the lowest parts of the bridges should be elevated not less than one hundred and eleven feet from the low water mark and maintained on a level headway for three hundred feet over the channel. The decree stated that unless the navigation was relieved from obstruction by February 1, 1853, by this or some other plan, the bridge must be abated,
Chief Justice Taney dissented on the ground that since Virginia had exercised sovereignty over the Ohio, and Congress had acquiesced in it, the court could not declare the bridge an unlawful obstruction and the law of Virginia unconstitutional and void. He preferred to leave the regulation of bridges and steamboat chimneys to the legislative department. Justice Daniels, also dissenting, declared that Pennsylvania could not be a party to the suit on the ground stated in the bill (diminution of profits in canal and other public improvements many miles remote from the Wheeling bridge) and that the court could take no jurisdiction in such cases if imperfect rights or of merely moral or incidental rights as distinguished from legal or equitable.
"And," said he, "If the mere rivalry of works of internal improvement in other states by holding out the temptation of greater dispatch, greater safety, or any other inducement to preference for those works over the Pennsylvania canals, be a wrong and a ground for jurisdiction here, the argument and the rule sought to be deduced therefrom should operate equally. The state of Virginia who is constructing a railroad from the seaboard to the Ohio river at Point Pleasant, much further down that river than either Pittsburg or Wheeling, and at the cost of the longest tunnel in the world, piercing the base of the Bine Ridge Mountains, should have the right by original suit in this court against that state herself, to recover compensation for diverting any portion of the commerce which might seek the ocean by the shortest transit to the mouths of her canals on the Ohio, or to the city of Pittsburg; and on the like principle, the state of Pennsylvania has a just cause of action against the Baltimore and Ohio railroad for intercepting at Wheeling the commerce which might otherwise be constrained to seek the city of Pittsburg."
Justice Daniels, intoxicated with the recent effects of the development of railroads, directed considerable attention to the reigning fallacy which Pennsylvania urged upon the court - that commerce could be prosecuted with advantage to the western country only by the channels of rivers and through the agency of steam boats whose privileges were regarded as paramount. He urged that the historical progress of means of transportation exposed the tolly and injustice of all attempts to restrict commerce to particular localities or to particular interests. Against the narrow policy of confining commerce to watercourses whose capacity was limited by the contribution of the clouds, he urged the superiority of railroads for speed, safety, freedom from dependence on wind or depth of water, and unifying power in interfluvial regions.
Plans were proposed by the defendant's counsel to remove the obstruction to navigation at less expense than the elevation or abatement of the bridge, and the court March 3, 1852 referred the plans to J. McAlpine who made a report on May 8, 1852. The majority of the court, looking only to desired results and not methods, then agreed that the former decree would permit the Bridge Company to remove the obstruction by a two hundred foot draw in the bridge over the western branch of the river. Justice McLean then delivered the opinion of the court in which he stated that the right of navigating the Ohio or any other river does not necessarily conflict with the right of bridging it; but he declared that these rights could only be maintained when they were exercised so as not to be incompatible with each other. It the bridge had been constructed according to the language of the charter, he said, the suit could not have been instituted.
Defeated before the courts, Wheeling took prompt steps to save the bridge by action of Congress. In her efforts she received the cooperation of one hundred and twenty-one members of the Ohio legislature who (in April 1852) petitioned Congress to protect the bridge by maintaining it as a mail route, and also by resolutions of the Virginia and Indiana legislatures. She even had the sympathy of thirty-six members representing the minority of the Pennsylvania legislature, who presented a petition in favor of protecting the bridge. On July 8th, the committee on roads made a favorable report asking Congress to declare both bridges to be post-roads and military roads and to regulate the height and construction of chimneys of steamboats navigating the Ohio. On August 13th, an adverse report was made on a resolution of the Pennsylvania legislature. In the debates which followed (from August 13th to August 18th) the advocates of the bill included: (1) Those who felt that the entire proceeding against the bridge originated in Pittsburg's jealousy of Wheeling, (2) those who felt that the recent decision of the supreme coure was a strike against state sovereignty, and (3) those who (favoring the encouragement of better facilities for travel) asserted that within two years one could travel from New York to Cincinnati via Wheeling bridge as quickly as one could now pass from Cincinnati to Wheeling in either of the seven tall-chimneyed Pittsburg packet boats and with no danger of stoppage of transportation alternately by low water and frozen water.
Some of those who op[p]osed the bill regarded the proposed legislation in favor of the bridge as giving a preference to boats bound to Wheeling over those bound to Pittsburg and as a strike at the prosperity of Pittsburg. Others in opposition directed attention to the fact that bridges adapted to railroad purposes could be erected near Wheeling without obstruction to navigation, and that the Ohio Central railway and the Baltimore and Ohio which had recently intended to connect at Wheeling had found a more convenient point four miles south at Boggs' Ferry where a bridge could be constructed at sufficient height to avoid the objection taken by the Supreme court to the bridge at Wheeling.
The bill passed the Senate on August 28 by a vote of 33 to 10, and the House on August 30 by a vote of 92 to 42. On August 31, before the time designated for the execution of the decree of May 1852, it became an act of Congress legalizing in their existing conditions the bridges both at the west and the east branch, abutting on Zane's Island. It declared them to be post roads for the passage of the United States mall, at the same time requiring the vessels navigating the river to regulate their pipes and chimneys so as not to interfere with the elevation and construction of the bridges.
The Bridge Company relied upon this act as superseding the effect and operation of the decree of May 1852; but Pennsylvania insisted that the act was unconstitutional. The captain of one of the Pittsburg packets showed his displeasure by unnecessarily going through the form of lowering his chimney and passing under the bridge with all the forms of detention and oppression.
Meantime, the rival railroads had been pushing westward to connect the rival cities of the Ohio with rival cities of the East. The original line of the Pennsylvania whose construction began at Harrisburg in July, 1847, was opened to the junction with the Allegheny Portage railway at Hollidaysburg at the base of the mountains on September 16, 1850. The Baltimore and Ohio, notwithstanding delays incident to the difficulties experienced in securing laborers was opened for business from Cumberland to the foot of the mountains at Piedmont on July 5, 1851. The western division of the Pennsylvania line from the western end of the Portage railroad at Johnstown to Pittsburg was opened on September 22, 1852 and a through train service via the inclined planes of the Portage railway was established on December 10, following.
By the beginning of 1853, Wheeling seemed to have won new advantages over Pittsburg through the strategy of prospective railway lines and new steamer lines which induced the belief that Pennsylvania with her foot on the Ohio was but at the threshold of the promised land. The B. & O. won the race to the Ohio by a single continuous track over which through train service was established from Baltimore to Wheeling in January 1853.
On January 12, at a great opening celebration of the marriage of East and West, the city of Wheeling provided an elaborate banquet for nearly one thousand guests who listened to many regular and irregular toasts of rejoicing, and to whom was dedicated a poem closing with these lines:
*"Poor Pittsburg is flung - for her steamboats no more Can whistle, in scorn, as they pass Wheeling's shore No chimneys to lower - no action to bring - For a flat-boat she'll find, will soon be the thing; She may war on all bridges - save one, for herself, But her trade on the river is laid on the shelf."
To connect with the new railroad at Wheeling, the Wheeling and Kanawha packet line was established by the Virginia legislature and the Union line of steamboats was established between Wheeling and Louisville. At the same time, steps had been taken to construct several other prospective railways which would naturally converge at Wheeling. These included the Hempfield to connect with Philadelphia, a line from Columbus, a line from Marietta, and also a line from Cleveland which was expected to become an important point in case the proposed treaty of reciprocity with Canada should become a law. While the James River and Kanawha canal and the Covington and Ohio railway still hesitated to find a way westward across the mountains farther south. and before the construction of the Northwestern Virginia railroad from Grafton to Parkersburg, Wheeling especially expected to divert the trade of southern Ohio, Kentucky and Tennessee and to center it at Wheeling. Wheeling was also favored by cheaper steamer rates to the west and by the dangers of navigation between Wheeling and Pittsburg at certain periods of the year. Early in 1854 New York merchants shipped western freight via Baltimore and Wheeling. Oysters, too, because of the bad condition of the Pennsylvania line of travel were shipped via Wheeling to Cleveland and Chicago.
Undaunted by the chagrin of defeat, and with undiminished confidence in her ability to maintain her hegemony of the upper Ohio and the West, Pittsburg prepared to marshal and drill her forces for final victory by efforts to regain ground lost and to forestall the plans of her rival by new strategic movements. She declared that Wheeling was outside the travel line. She stationed an agent at Graves' Creek below Wheeling to induce eastward bound boat passengers to continue their journey to Pittsburg and thence eastward via the Pennsylvania line of travel in order to avoid the tunnels and zigzags and various kinds of delays on the B. & O. - to which the Wheeling Intelligencer replied by uncomplimentary references to the slowness of travel over the inclined planes and flat rails of the Pennsylvania Central railway. Through her mayor and her newspapers she warned travelers against the danger of accidents on the B. & O. - to which Wheeling replied that the frightful accidents on the Pennsylvania line hurled more people into eternity each month than had ever been injured on the B. & O. She also endeavored to prejudice travelers against the Union lines of steamers, complaining of its fares and food and also of the reckless racing encouraged by its captains who had bantered the boats of other lines for exhibitions of speed. She was also accused of using her influence to secure the location of the route of the Pittsburg branch of the Cleveland road on the west shore of the Ohio from Wellsville to Wheeling, causing Brooke and Hancock counties to threaten secession from Virginia.
As a strategic movement against the proposed Hempfield road by which Wheeling hoped to get not only direct connection with Philadelphia, but also a connection with the Marietta road, Pittsburg resuscitated a movement in favor of the Steubenville and Pittsburg railway and revived the project of the Connelsville route to Baltimore. She also strained every nerve to open connection with the New York and Erie line via the Allegheny valley.
The proposed Steubenville and Pittsburg railway, especially was strongly opposed by Wheeling by whom it was regarded as a project to cripple her by diverting her trade. Largely through her influence, Pittsburg's attempt to secure a charter from the Virginia legislature for the road for which she proposed a bonus on every passenger, was defeated in the lower house by a vote of 70 to 37, and later failed to secure the approval of the house committee. When the promoters of the road tried the new plan of getting a route by securing the land in fee with the idea of rushing the road through in order to get the next Congress to declare it a post road, the Wheeling Intelligencer declared that Congress would not dare thus to usurp the sovereignty of Virginia. An injunction against the road was proposed, and in order to prevent the construction of the railway bridge at Steubenville, a plan to construct a road from the state line through Holliday's Cove and Wellsburg was considered.
From the consideration of plans to prevent the construction of the Steubenville bridge above her. Wheeling turned to grapple with a more immediate danger of ruin which threatened her by a proposed connection of the B. & O. and the Central Ohio railroad at Benwood, four miles below her. This she claimed was in violation of the law of 1847, granting a charter to the B. & O., and to prevent it she secured an injunction from Judge George W. Thompson of the circuit court - causing the State Journal of Columbus to place her in the list with Erie, Penna. (which had recently attempted to interrupt travel between east and west), and to assert that the Benwood track case was similar to the Wheeling bridge case. An attempt was made to secure combination and co-operation of the railroads to erect a union bridge in Wheeling to replace the old structure.
Meantime, transportation facilities improved on the Pennsylvania line after the mountains were conquered by a grade for locomotives. The mountain division of the road, and with it the whole line, was opened on February 16, 1854 and by the cheaper rates soon overcame the advantages which New Orleans had held in attracting the commerce of the West. Pennsylvania promptly passed a bill (1854) authorizing the sale of her unproductive public works, and abandoned her portage railway across the mountains. Three years later (1857) she sold to the Pennsylvania railway the main line of the system of public works undertaken in 1826, including the Philadelphia and Columbia railway. Coincident with the determination of Pennsylvania to dispose of her unproductive public works, the old Wheeling bridge over the main branch of the stream was blown down by a gale of wind (in May 1854) and was promptly removed to avoid obstruction. Some regarded the disaster as a just judgment for trespass upon the rights of others by Wheeling in order to make herself the head of navigation. The Pittsburg Journal edited by the ex-mayor of the city, gloated over Wheeling's misfortune. The Pittsburg and Cincinnati packet "Pennsylvania" in derision lowered her chimneys at the place recently spanned by the bridge. Her second offense a few days later exasperated the indignant crowd on shore and induced the boys to resort to mob spirit and to throw stones resulting in a hasty departure of the vessel, but further trouble was avoided by an apology from the captain and the wise advice of older heads.
Another and a final Wheeling Bridge case before the Supreme court (arising in 1854 and decided in April 1866) resulted from the decision of the company to rebuild the bridge. When the company promptly began the preparations for rebuilding, Pennsylvania, stating that she desired to secure a suspension of expensive work until the force and effect of the act of Congress could be judicially determined, asked the United States supreme court for an injunction against the reconstruction of the bridge unless in conformity with the requirements of the previous decree in the case. Without any appearance or formal opposition of the company, the injunction was granted (June 25, 1854) during vacation of the court, by Justice Grier, whom the Wheeling Intelligencer called the Pittsburg judge of the supreme court. The Intelligencer regarded the question as a grave one involving the sovereign authority of Virginia and a direct law of Congress, and illustrating the aggressions of the supreme court which it feared were becoming daily more alarming. Charles Ellet, the engineer on whom the injunction was served, promptly announced that he expected to have the bridge open for traffic in two weeks, and the Bridge Company asked Congress to investigate charges against Judge Grier to the effect that he had invited bribery. The new suspension bridge was opened as a temporary structure on July 26th at an expense of only $8,000.
The injunction having been disregarded, Pennsylvania asked for attachment and sequestration of the property of the company for contempt resulting from disobelience [sic] of the injunction of Justice Grier. At the same time, the company asked the court to dissolve the injunction. Pennsylvania insisted that the act of Congress was unconstitutional and void because it annuled the judgment of the court already rendered and because it was inconsistent with the clause in Article 1, Section 9, of the Constitution against preference to the ports of one state over those of another.
Justice Nelson in delivering the decision of the court on the latter point said, "It is urged that the interruption of the navigation of the steamboats engaged in commerce and conveyance of passengers upon the Ohio river at Wheeling from the erection of the bridge, and the delay and expense arising therefrom, virtually operate to give a preference to this port over that of Pittshurg; that the vessels to and from Pittshnrg navigating the Ohio and Mississippi rivers are not only subjected to this delay and expense in the course of the voyage, but that the obstruction will necessarily have the effect to stop the trade and business at Wheeling, or divert the same in some other direction or channel of commerce. Conceding all this to be true, a majority of the court are of the opinion that the act of Congress is not inconsistent with the clause in the constitution referred to - in other words, that it is not giving a preference to the ports of one state over those of another, within the true meaning of that provision. There are many acts of Congress passed in the exercise of this power to regulate commerce, providing for a special advantage to the port or ports of one state (and which every advantage may incidentally operate to the prejudice of the ports in a neighboring state) which have never been supposed to conflict with this limitation upon its power. The improvement of rivers and harbors, the erection of light houses, and other facilities of commerce, may be referred to as examples."
The court decided that the decree for alteration or abatement of the bridge could not be carried into execution since the act of Congress regulating the navigation of the river was consistent with the existence and continuance of the bridge - but that the decrees directing the costs to be paid by the Bridge Company must be executed. The majority of the court (six members) on the grounds that the act of Congress afforded full authority to reconstruct the bridge, directed that the motion for attachment against the President of the Bridge Company and others for disobedience and contempt should be denied and the injunction dissolved, but Nelson agreed with Wayne, Grier and Curtis in the opinion that an attachment should issue since there was no power in Congress to interfere with the judgment of the court under the pretense of power to legalize the structure by making it a post road.
Justice McLean dissented, feeling that the principle involved was of the deepest interest to the growing commerce of the West which might be obstructed by bridges across the river. He opposed the idea that making the bridge a post road (under the purpose of the act of July 7, 1838), could exempt it from the consequences of being a nuisance. He regarded the act of Congress as unconstitutional and void; and, although he admitted the act might excuse previous contempt, he declared that it could afford no excuse for further refusal to perform the decree.
A sequel to the preceding case arose in the same term of court (December 1855) on motion of the Counsel for the Bridge Company for leave to file a bill of review of the court's order of December term of 1851, in regard to the costs. The court had already determined that the decree rendered for costs against the Bridge Company was unaffected by the act of Congress of August 1, 1852; but the court declining to open the question for examination, declared "There must be an end of all litigation."
The later history bearing upon the subject here treated, the regulation of the construction of bridges across the Ohio under acts of Congress, the opposition of both Wheeling and Pittsburg to the construction of bridges such as railroad bridges at Parkersburg and between Benwood and Bellaire (which were completed in 1871), the decline of old local jealousies and prejudices, the rise of new problems of transportation resulting from the extension of railways, cannot be considered within the scope and limits of this article.