Huse v. Glover

• Decision Date: 20 December 1886
• Citation: 7 S.Ct. 313,30 L.Ed. 487,119 U.S. 543
• Parties: HUSE and others v. GLOVER and others. 1
• Court: U.S. Supreme Court

119 U.S. 543

7 S.Ct. 313

30 L.Ed. 487

HUSE and others v. GLOVER and others.¹

December 20, 1886.

G. S. Eldredge, for appellants, Huse and others.

Geo. Hunt, for appellees, Glover and others.

FIELD, J.

This case comes from the circuit court for the Northern district of Illinois. It was heard there and decided on demurrer to the bill of complaint. The substance of the bill is this: That by various acts of her legislature, commencing with one passed in February, 1867, the state of Illinois adopted measures for imp oving the navigation of Illinois river, including the construction of a lock and dam at Henry and at Copperas creek on the river. She created a board of canal commissioners, and invested it with authority to superintend the construction of the locks and dams, to control and manage them after their construction, and to prescribe reasonable rates of toll for the passage of vessels through the locks. By a clause in one of the acts it was provided that all tolls received for the use of the locks, not necessary to keep the same in repair, and to pay the expenses of their collection, should be 'paid quarterly into the state treasury as part of the general revenue of the state.' Laws Ill. 1872, 213, 214. The works were constructed at an expense of several hundred thousand dollars, which was principally borne by the state. It is represented that a small portion was contributed by the United States. Those at Henry were completed in 1872; those at Copperas creek in 1877; and the commissioners prescribed rates of toll for the passage of vessels through the locks, the rates being fixed per ton, according to the tonnage measurement of the vessels and the amount of freight carried.

The complainants, citizens of Illinois, composing the firm of Huse, Loomis & Co., are engaged, and have been since their organization, in 1864, in cutting ice at Peru and at other points on the Illinois river, and in transporting it on that river, and thence by the Mississippi and other navigable streams, to St. Louis, Memphis, and other southern markets; and in connection therewith are carrying on a general transportation business, using constantly from three to six steam-boats, and from thirty to sixty barges, varying from 125 to 1,000 tons, all licensed and registered under the act of congress. They allege in the bill that, prior to the construction of the dam across the Illinois river at Henry, they were able to navigate the river without interruption, except such as was incident to its ordinary use in its natural state; that the dams at that place and at Copperas creek are impediments to the free navigation of the river; that while an additional depth of water is created above them, no practical advantage ensues to the complainants, for they encounter below the dams the same stage of water they would have without them; that the dams are so constructed as to wholly impede, except at extreme high water, the navigation of the river by steam-boats and other vessels which were previously accustomed to navigate it, unless they pass through the locks; that from the construction of the lock and dam at Henry, in 1872, to the spring of 1878, they have paid, as duties or charges upon the tonnage measurement of their steam-boats and other vessels, about $3,000, and for tolls imposed upon the cargoes of ice transported by them about $5,000; that upon subsequent shipments similar charges have been exacted, as also for the passage of their boats and barges through the lock at Copperas creek. And they allege that they are advised and believe that the imposition of the tolls and tonnage duties mentioned is in violation—First, of the provision of article 4 of the ordinance for the government of the territory of the United States north-west of the Ohio river, passed July 13, 1787, which provides that 'the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common high ways, and forever free as well to the inhabitants of the said territory as to the citizens of the United States, and those of any other states that may be admitted into the confederacy, without any, tax, impost, or duty therefor;' and, second, of the article of the constitution of the United States which prohibits the imposing of a tonnage duty by any state without the consent of congress. Article 1, § 10. They therefore pray that the defendants, who are canal commissioners, and all persons acting under them, may be restrained from exacting any tonnage duties or oth r charges for the passage of their steam-boats or barges and other vessels used by them in navigating the Illinois river, or from interfering in any manner with the free and uninterrupted navigation of the river by them in the usual course of their business.

The questions thus urged upon the consideration of the court below are pressed here; but they are neither new nor difficult of solution. The opinion of that court presents, in a clear and satisfactory manner, the full answer to them, and nothing can be added to the force of its reasoning. In affirming its conclusions, we can do little more than repeat its argument. Huse v. Glover, 11 Biss. 550; S. C. 15 Fed. Rep. 292.

The fourth section of the ordinance for the government of the Northwestern territory was the subject of consideration in Escanaba Co. v. Chicago, 107 U. S. 678; S. C. 2 Sup. Ct. Rep. 185. We there said that the ordinance was passed before the constitution took effect; that although it appears by various acts of congress to have been afterwards treated as in force in the territory, except as modified by them, and the act enabling the people of Illinois territory to form a constitution and state government, and the resolution of congress admitting the state into the Union, referred to the principles of the ordinance, according to which the constitution was to be formed, its provisions could not control the powers and authority of the state after her admission; that whatever the limitation of her powers as a government while in a territorial condition, whether from the ordinance of 1787 or the legislation of congress, it ceased to have any operative force except as voluntarily adopted by her after she became a state of the Union; that on her admission she at once became entitled to and possessed of all the rights of dominion and sovereignty which belonged to the original states; that the language of the resolution admitting her was that she is 'admitted into the Union on an equal footing with the original states in all respects whatever;' and that she could, therefore, afterwards exercise the same powers over rivers within her limits as Delaware exercised over Blackbird creek, and Pennsylvania over Schuylkill river. Pollard v. Hagan, 3 How. 212; Permoli v. Municipality, Id. 589; Strader v. Graham, 10 How. 82.

We also held, in that case, that, independently of these considerations, the terms of the ordinance were not violated because the navigable streams were subject to such crossings as...