Huse v. Glover

• Decision Date: 01 January 1883
• Citation: 15 F. 292
• Parties: HUSE and others v. GLOVER and others. [1]
• Court: U.S. District Court — Northern District of Illinois

15 F. 292

HUSE and others v. GLOVER and others. ^[1]

United States Circuit Court, N.D. Illinois.

1883

Geo. S Eldridge, for complainants.

Edsall Hawley & Edsall, James McCartney, Atty. Gen. of Illinois, and Lawrence, Campbell & Lawrence, for defendants.

HARLAN Justice.

This is a suit in equity. The present hearing is upon demurrer to the bill. The complainants, constituting the firm of Huse, Loomis & Co., are, and since 1864 (besides a general transportation business) have been, largely engaged in cutting ice at Peru and other points on the Illinois river, and in transporting the same on that river, thence by the Mississippi and other navigable streams to markets in different states. In the conduct of their business they have employed from three to six steam-boats and from thirty to sixty barges, all duly registered and licensed in accordance with the laws of the United States. The defendants are canal commissioners appointed in pursuance of certain statutes of Illinois, which provided, among other things, for the construction of locks and dams on Illinois river at Henry and at Copperas Creek. The former were contemplated in 1872 and the latter in 1877 at an aggregate cost of about $854,739.42, the whole of which was paid by this state except about the sum of $62,359 paid by the United States. By the statutes referred to the commissioners were authorized to establish and collect reasonable tolls for the passage and use of the locks by boats. To that end a schedule was adopted, in accordance with which complainants have been required to pay and have paid, always under protest, tolls for the passage of the locks by their boats, such tolls being ascertained, as to amount, upon the basis of the tonnage measurement of the boats and their cargoes. From the construction of the lock at Henry, up to the spring of 1872, complainants paid to the canal commissioners, for the passage of that lock, in tolls or charges, nearly $3,000 upon the tonnage measurement of their boats, and about $5,000 upon their cargoes of ice in ice-barges towed by such boats. Their average shipments each subsequent year have been quite as large, and upon such shipments tolls have been exacted and paid by them. The prayer of the bill is that the defendants, their agents, servants, and employes, be restrained from imposing and exacting from complainants any tolls or other charges for the right of passage through the locks by steam-boats, ice-barges, and other vessels used in the transaction of their business on the Illinois river.

The substantial grounds upon which complainants proceed are, briefly stated, these: That the locks and dams so constructed by the state not only do not aid or promote their business, but are practical impediments in the way of its prosecution, and to the free navigation of the Illinois river; that their construction and the imposition by the canal commissioners of tonnage duties, under the name of tolls, upon the boats and cargoes of complainants, are in violation-- First, of that part of the ordinance for the government of the north-western territory which provides that 'the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of 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;' second, of section 10, art. 2, of the national constitution, which prohibits any state, without the consent of congress, from laying any 'duty of tonnage;' and, third, of section 8, art. 1, of the constitution, which invests congress with power 'to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.'

It seems to the court that most of the questions discussed by counsel are concluded, some directly, others substantially, by the adjudged cases.

In Wilson v. Blackbird Creek Marsh Co. 2 Pet. 245, the question was whether the legislature of Delaware could, consistently with the national constitution, authorize a dam to be constructed across Blackbird creek, in that state. That stream, although wholly within the limits of Delaware, was conceded to be a public navigable highway, in which the tide ebbed and flowed, and was capable of being used, and theretofore had been used, by sloops and other vessels enrolled and licensed under the laws of the United States. After stating that the value of the property on the banks of the creek was enhanced by excluding the water from the marsh; that the health of the inhabitants in the vicinity was thereby probably improved; and that measures calculated to effect such results were within the reserved powers of the state so long as they did not come in collision with the powers of the general government,-- the court, speaking by Chief Justice MARSHALL, said:

'But the measure authorized by this act stops a navigable creek, and must be supposed to abridge the rights of those who have been accustomed to use it. But this abridgement, unless it comes in conflict with the constitution or a law of the United States, is an affair between the government of Delaware and its citizens, of which this court can take no cognizance. The counsel for plaintiff in error insist that it comes in conflict with the power of the United States 'to regulate commerce with foreign nations, and among the several states.' If congress had passed any act which bore upon the case,-- the object of which was to control state legislation over those small navigable creeks into which the tide flows, and which abound throughout the lower country of the middle and southern states, we should not feel much difficulty in saying that a state law coming in conflict with such act would be void. But congress has passed no such act. The repugnancy of the law of Delaware to the constitution is placed entirely on its repugnancy to the power to regulate commerce with foreign nations and among the several states,-- a power which has not been so exercised as to effect the question. We do not think that the act empowering the Blackbird Creek Marsh Company to place a dam across the creek can, under all the circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject.'

In Gilman v. Philadelphia, 3 Wall. 713, the supreme court sustained the constitutional validity of an act of the legislature of Pennsylvania, which authorized the construction of a bridge across the Schuylkill, one of the navigable waters of the United States, although the effect of that structure was not only to seriously impair the value of wharf property above the contemplated bridge, but to prevent the navigation of the river by certain vessels theretofore accustomed to use such wharves. While recognizing, to the fullest extent the power of congress to control, in the interest of commerce, the navigable waters of the United States, so as to keep them free of all obstructions, whether interposed by the states or by private persons, the supreme court-- affirming the doctrines of Cooley v. Wardens, 12 How. 299--said that there were some subjects connected with commerce which called for uniform rules and national legislation, while others were best regulated by rules and provisions suggested by the varying circumstances of localities, and to be enforced under the authority of the states, so long as congress did not act. Speaking by Mr. Justice SWAYNE, the court further said:

'It must not be foreign that bridges which are connecting parts of turnpikes, streets, and railroads, are means of commercial transportation, as well as navigable waters, and that commerce which passes over a bridge may be much greater than would ever be transported on the water it obstructs. It is for the municipal power to weigh the considerations which belong to the subject, and to decide which shall be preferred, and how far either shall be made subservient to the other. The states have always exercised this power, and from the nature and objects of the two systems of government they must always continue to exercise it; subject, however, in all cases, to the paramount authority of congress, whenever the power of the states shall be exerted within the sphere of the commercial power which belongs to the nation.'

The opinion...