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The power to regulate commerce includes the power to determine what shall or shall not be deemed in judgment of law an obstruction to navigation. A bridge authorized by an act of Congress will not be deemed an obstruction. Miller v. New York, 13 Blatch. 469; State v. Wheeling Bridge Co. 18 How. 421.

Congress may legalize a bridge erected across a navigable river flowing between two States. The Clinton Bridge, 10 Wall. 454; S. C. 1 Wool. 150; State v. Wheeling Bridge Co. 18 How. 421.

Congress has the power to prescribe the place and manner of constructing bridges across navigable rivers. U. S. v. Mil. & St. P. R. R. Co. 5 Biss. 410, 420.

Congress may confer on a chief of a department the right to determine where a bridge which crosses a navigable river, shall be constructed. U.S. v. Mil. & St. P. R. R. Co. 5 Biss. 410.

Congress may interpose whenever it shall be deemed necessary by general or special laws. It may regulate all bridges over navigable waters, remove offending bridges, and punish those who shall thereafter erect them. Gilman v. Philadelphia, 3 Wall. 713.

Congress can not, by any act subsequent to the erection of a bridge, so' legislate as to render its further continuance unlawful, without making proper compensation for the property so taken, if the bridge was erected by State authority in the absence of conflicting legislation by Congress. Dover v. Portsmouth Bridge, 17 N. H. 200.

Congress can not, under this clause, construct a bridge over a navigable water. This belongs to the local or State authority within which the work is to be done. U. S. v. Railroad Bridge Co. 6 McLean, 517; Dover v. Portsmouth Bridge, 17 N. H. 200.

The several States had the power to build bridges before the Constitution was adopted, and have it still, for the power to authorize the building of bridges is not to be found in the Constitution. Gilman v. Philadelphia, 3 Wall. 713; Silliman v. Hudson River Bridge Co. 4 Blatch. 74, 395; S. C. 2 Wall. 403.

A State having the power to authorize the construction of a bridge, is, as a general thing, exclusively to judge of the time, place and circumstances which call for its exercise. Columbus Ins. Co. v. Peoria Bridge Co. 6 McLean, 70.

The power to build bridges over navigable rivers must be considered so far surrendered as may be necessary for a free navigation upon those streams. By a free navigation must not be understood a navigation free from such partial obstacles and impediments as the best interests of society may render necessary. People v. Railroad Co. 15 Wend. 113.

A State has the power to build bridges over navigable rivers within its territory, where they shall be necessary for the convenience of its citizens. The right must be so exercised however as not to interfere with the right to regulate and control the navigation of navigable streams. Both governments have rights which they may exercise over and upon navigable waters, and it is the duty of both so to exercise their several portions of the sovereign power that the greatest good may result to the citizens at large. It is the right and duty of the general government to adopt such measures that the commerce and navigation of the country shall not be improperly obstructed; and it is the duty of the State government to afford its citizens all the facilities of intercourse which are consistent with the interest of the community, and which shall not obstruct the powers granted to the general government. A bridge with a draw which shall be opened free of expense for every vessel sailing under a license as a coasting vessel, affords all the accommodations necessary for citizens in the vicinity or for travelers, and does not impede the navigation in any essential degree. Silliman v. Troy & W. Troy Bridge Co. 11 Blatch. 274; U. S. v. Railroad Bridge Co. 6 McLean, 517; The Passaic Bridges, 3 Wall. 782; People v. Railroad Co. 15 Wend. 113; Comm. v. Breed, 21 Mass. 460; Commissioners v. Pidge, 5 Ind. 13; Comm. v. Bedford Bridge, 68 Mass. 339; In re Water Commissioners, 3 Edw. Ch. 290; Att. Gen. v. Stevens, Saxt. 369; Hutchinson v. Thompson, 9 Ohio, 52; U. S. v. Bedford Bridge, 1 W. & M. 401; Groten v. Hurlburt, 22 Conn. 178; Palmer v. Commissioners, 3 McLean, 226; Works v. Junction Railroad, 5 McLean, 425; Penn. R. R. Co. v. N. Y. R. R. Co. 18 I. R. R. 142; Rogers v. Railroad Co. 35 Me. 319; Silliman v. Hudson River Bridge Co. 4 Blatch. 74, 395; S. C. 2 Wall. 403.

A State may, in the absence of legislation by Congress, authorize the erection of a bridge across a navigable river entirely within the limits of the State, although navigation is thereby obstructed. Bridges which are connecting parts of turnpike streets and railroads are means of commercial transportation as well as navigable rivers, and the 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. Gilman v. Philadelphia, 3 Wall. 713; The Passaic Bridges, 3 Wall. 782; The Albany Bridge Case, 2 Wall. 463; S. C. 4 Blatch. 74, 395; Easton v. N. Y. & L. B. R. R. Co. 9 Phila. 475; Dover v. Portsmouth Bridge, 17 N. H. 200.

If Congress has regulated navigation upon a navigable river by licensing vessels and establishing ports of entry, no State can pass a law authorizing the erection of a bridge that will interfere with navigation thereon. No State law can hinder or obstruct the free use of a license granted under an act of Congress. State v. Wheeling Bridge Co. 13 How. 518; Columbus Ins. Co. v. Curtenius, 6 McLean, 209; Columbus Ins. Co. v. Peoria Bridge Co. 6 McLean, 70; Jolly v. Draw Bridge Co. 6 McLean, 237.

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The mere existence of a port of delivery above a bridge does not render it unlawful if the bridge does not prevent access to the port, and is provided with a draw and an arch for the passage of vessels and boats. Dover v. Portsmouth Bridge, 17 N. H. 200.

Congress by conferring the privileges of a port of entry on a town or city, does not thereby prohibit a State from erecting a bridge over a navigable river below the port. The Passaic Bridges, 3 Wall. 782.

Every bridge, except one suspended over a river so as to be above all vessels and water craft, may in one sense be said to be an obstruction, but that delay or risk which is inseparable from the existence which the State has the power to create, does not make it an obstruction in contemplation of law. The necessity is the justification, and for such delay or risk the law will not give a right of action. Columbus Ins. Co. v. Peoria Bridge Co. 6 McLean, 70; Jolly v. Draw Bridge Co. 6 McLean, 237; Dover v. Portsmouth Bridge, 17 N. H. 200.

A partial, local, or slight obstruction which operates only on some specific spot, does not per se conflict with the power of Congress to regulate commerce. Any exercise of the right of eminent domain which does not conflict with a regulation of commerce is legitimate. The State must grossly abuse her right by an essential and material obstruction of a communication which it is the duty of the government to keep open. There may be many obstructions which a State may authorize, but if they are not in their nature essential and serious, they must remain so long as the authorities of the State permit them. Griffing v. Gibb, 1 MCA. 212.

A State may authorize the erection of a close bridge over a navigable creek which is not used as a great public highway. Bailey v. Railroad Co. 4 Harring. 389.

Whether a particular bridge is an essential obstruction of navigation is a question of fact, and a State law authorizing its erection is not conclusive on that point. Columbus Ins. Co. v. Curtenius, 6 McLean, 209; Columbus Ins. Co. v. Peoria Bridge Co. 6 McLean, 70; Jolly v. Draw Bridge Co. 6 McLean, 237.

Whether navigation is left free is the test by which to determine whether a bridge is a material obstruction. No precise and absolute rule can be given to determine whether a particular bridge is an obstruction. It must depend upon all the circumstances of each particular case, the character of the river, the trade upon it, and the craft navigating it. Columbus Ins. Co. v. Peoria Bridge Co. 6 McLean, 70; Jolly v. Draw Bridge Co. 6 McLean, 237.

A State legislature may bridge a navigable river upon such terms and conditions as merely impair and diminish the freedom of navigation without destroying the right altogether. Flannagan v. Philadelphia, 42 Penn. 219.

A State may authorize the erection of a bridge over a navigable river flowing between it and another State. Dover v. Portsmouth Bridge, 17 N. H. 200.

If a bridge does not obstruct navigation at the time when it is erected, it will not become unlawful by a subsequent accident whereby it is rendered an obstruction. Commissioners v. Pidge, 5 Ind. 13.

The provision for the payment of tolls by those who may pass over a bridge built across a navigable river flowing between two States, may perhaps, be regarded as a regulation for them, but is not in such an application a commercial regulation. Dover v. Portsmouth Bridge, 17 N. H. 200.

The regulation of the tolls of bridges and turnpike roads, and the fares of railroads and ferries, is in no just sense a regulation of commerce. State v. Hudson, 24 N. J. 718; S. C. 23 N. J. 206.

Dams.

If Congress has passed no law to control State legislation over small navigable creeks, into which the tide flows, the respective States may authorize the erection of dams, and otherwise abridge the rights of those who have been accustomed to use them. Such acts are not repugnant to the power to regulate commerce in its dormant State. Wilson v. Marsh Co. 2 Pet. 245; Kellogg v. Union Co. 12 Conn. 7; Parker v. Mill Dam Co. 20 Me. 353; Glover v. Powell, 10 N. J. Eq. 211; Woodman v. Kilbourn Manuf. Co. 1 Abb. C. C. 158.

A State may authorize the erection of dams and locks in navigable rivers if navigation is not seriously obstructed thereby. Commissioners v. Pidge, 5 Ind. 13; Stoughton v. State, 5 Wis. 291.

A State statute imposing a penalty for erecting a dam or other artificial obstruction across any navigable river in the State is not unconstitutional while the power of Congress over the subject lies dormant. Cox v. State, 3 Blackf. 193.

A State may improve the navigation of any and all streams within her borders, and authorize the erection in and over them of any works that do not substantially injure them for purposes of navigation. Commissioners v. Pidge, 5 Ind. 13.

Ferries,

Congress has no authority to require a license to carry on a ferry over a navigable river at a place altogether within the limits of a State. U. S. v. The James Morrison, Newb. 241; U. S. v. The William Pope, Newb. 256; The Thomas Swan, 6 Ben. 42,

The States bordering on a navigable river which flows between them possess the right of granting and controlling the privilege of ferrying from their respective shores, with such restrictions as to competition as may be deemed necessary to secure the proper accommodations for travel and trade, and with such regulations as will secure a speedy and comfortable passage across the river, and protect the rights and property of their citizens. Newport v. Taylor, 16 B. Mon. 699; State v. Hudson, 23 N. J. 206; S. C. 24 N. J. 718; Marshall v. Grimes, 41 Miss. 27; Mills v. St. Clair, 8 How. 569; S. C. 2 Gilman, 197; Conway v. Taylor, 1 Black, 603; S. C. 16 B. Mon. 699; Fanning v. Gregoire, 16 How. 524; Corporation v. Overton, 3 Yerg. 387; Phillips v. Bloomington, I Greene (Iowa), 498.

The concurrent action of both States is not necessary in order to establish a ferry over a navigable river flowing between them, for the ferry is in respect of the landing and not of the water. Conway v. Taylor, 1 Black, 603; S. C. 16 B. Mon. 699.

A State may regulate the rates of ferriage, although the ferry is between two States or a State and a foreign nation. It has the power to regulate the exercise of the right of ferry by any person holding a dock or wharf in the State, although the passage may in part be over the waters of an adjoining State. The jurisdiction of the State extends to the center of the stream, and the franchise may be regulated and controled to that extent, upon conditions which may affect the whole transit. State v. Hudson, 23 N. J. 206; S. C. 24 N. J. 718; People v. Babcock, 11 Wend. 586; Newport v. Taylor, 16 B. Mon. 699.

A State law requiring a license fee from ferry-boats carrying passengers between the State and a foreign nation, is valid. Chilvers v. People, II Mich. 43.

A ferry-boat duly licensed under the laws of one State may transport goods or passengers across a navigable river flowing between two States into another State, but can not carry goods or passengers from the latter State in violation of its laws granting an exclusive ferry privilege to others. Newport v. Taylor, 16 B. Mon. 699; S. c. 1 Black, 603.

A steamboat enrolled and licensed under the laws of the United States, is not authorized to engage in transporting goods and passengers across a navigable river flowing between two States, in violation of the laws of a State granting the exclusive ferry privilege to others. Newport v. Taylor, 16 B. Mon. 699; S. C. I Black, 603.

The owner of a ferry franchise has no right to exclude or restrain those who prosecute the business of commerce in good faith, without the regularity or purposes of ferry trips, and seek in nowise to interfere with the enjoyment of his franchise. Conway v. Taylor, 1 Black, 603; S. C. 16 B. Mon. 699.

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