Thames Bank v. Lovell

Church, Ch. J. The leading principle involved in this case, was also involved and decided, by this court, in the case of Kellogg v. The Union Company, 12 Conn. R. 7. and it is admitted, that the chief object here, is, to induce us to review the opinion expressed in that case, as well as to satisfy us, that there are material facts here, not found there, which ought to distinguish the presenjt from the former case. The case of Kellogg v. The Union Company was decided upon great deliberation, and in view of all the important cases bearing upon it, which had gone before it; and although, it [510] may to° muc^ f°r us to say, that no doubts were then entertained or expressed, upon the controuling principles of the (jec¡g¡or)j yet t[iey Were not so great as to produce any dissent-¡ng 0pJni0n. The doctrine of that case, as we now recognize it, is, that Congress, by the constitution of the United States, has the exclusive right to regulate commerce with foreign nations and among the several states; but that an act of a state legislature, imposing reasonable tolls, as a compensation for rendering navigable, or more extensively so, a river within its own borders, is constitutional, unless it conflicts with the actual exercise of the powers of Congress. The power to regulate commerce, says Chief Justice Marshall, in Gibbons v. Ogden, 9 Wheat. 1. “is to prescribe the rule by which commerce is to be governed.” And in the same case, Johnson, J. says, that “ it is no objection to the existence of distinct, substantive powers, that in their application, they bear upon the same subject.” Now, what has Congress done, and what has the state done? Congress has passed no law with particular reference to the navigation of the river Thames; nor directed upon what terms vessels might navigate this stream. It has made Norwich a port of delivery; and if it had not, it does not follow, that vessels duly licensed, would not have had the same right to pass and repass to and from that port. The state has not attempted to regulate, commerce upon this river: it has only, by virtue of its original powers, through the agency of a corporation, created by itself, rendered navigable, by a certain description of vessels, a river which was not navigable before, and has to all licensed vessels and others, extended facilities of commercial intercourse, beyond what existed before. This, it has done, by virtue of the same authority by which it constructs roads, bridges, ferries and canals. And laws establishing these latter, says Johnson, J., in the case referred to, (p. 235.) “are in fact commercial facilities, for which, by the consent of mankind, a compensation is paid, upon the same principle, that the whole commercial world submit to pay light money to the Danes.” These acts, improving rivers, constructing roads, &c. will never be complained of, as interfering with the rights and powers of [511] Congress. The tolls alone are the subject of complaint. But these are only the fair equivalent for privileges, which the • state had a right to create, and without which these privileges could never have existed. Commerce, therefore, has not been crippled, by the tolls, as the defendant claims, but has been extended by them. The legislature of the state creating this corporation, with its duties and its pjivileges, has come in aid of the powers of Congress. It seems to be admitted, that states may construct canals, turnpikes, bridges, &c. and impose tolls upon passengers and freight, as a remuneration for the improvement; and that this >may be done, without interfering with the power of Congress to regulate commerce among the states, or its power to establish post-offices and post-roads. We have not been able to discover a sound distinction between these cases and the one we are considering. Congress has the same power to regulate commerce, upon the land as upon the water. A river, to be sure, is a natural channel; but if it is not a navigable one, it can no more be used for the purposes of commerce, than the land ; and therefore, to convert it from a mere natural channel into a public highway, for commercial purposes, and to levy a toll to reimburse the expense, no more conflicts with the powers of Congress over the commerce of the country, than the construction of a canal or a turnpike for the same purposes, with the same tolls. And this, we think, is equally true of rivers, which are only navigable to a partial and limited extent, and by artificial and expensive means, are rendered navigable to a greater extent, with a reasonable toll levied upon those only, who receive the benefit of the extended navigation. The principle is the same, in both the cases stated. In speaking here of navigable rivers, we speak of them as public highways only, without reference to the flow of the tides; for to all rivers navigable in fact, the power of Congress to regulate commerce, may extend, without distinction. And we suppose, therefore, that the several state legislatures have the same power to improve the navigation of tide water rivers, as any other. It is said, by Woodbury, J., in the late case of The United States v. The Proprietors of the New-Bedford Bridge, “ That a grant of power by Congress, probably, does not prevent the states from continuing to act on subjects within the grant, till [512] Congress legislate fully concerning it, and so as to conflict with the doings of the state, unless there is an express prohibition on the states to act further in the matter, or it is strongly implied from the nature of the case.” Law Reporter, July> 1847, vol. 10. p. 127. We think this is the safe doctrine, and tends more to harmonize the different jurisdictions of state and national,legislation, than any other. Certainly, the mere existence of an unexercised power in Congress, should not prevent the necessary exercise of a similar or equivalent power by the states, if they originally possessed it. And in the present case, Congress has done nothing more than to constitute Norwich a port of delivery — an act which has become of more importance, by reason of the legislation of the state, authorizing and effecting the improvement of the navigation of the river. Here is no conflict. But it is objected, that by the operation of this charter, a tonnage duty is in effect levied upon licensed vessels navigating the river. If this be so, it is illegal; for this power is taken away from the states, by the constitution of the United States. But we think that this toll is not in the nature of a tonnage duty, or any duty at all upon the vessel, within the meaning of the constitution, any more than a toll at a turnpike gate, is a duty upon the carriage : it is a compensation exacted for a privilege conferred, and in proportion to it. It is no more a tonnage duty, than laws regulating wharfage or port charges. Upon this second consideration of the principles advanced by us, in the case of Kellogg v. The Union Company, we again assert them, and yield to the authority of that case as binding upon us. Nor are we satisfied, that the additional facts peculiar to the present case, and relied upon by the defendant, as delivering it from the authority of the former case, are sufficient for that purpose. This record shows, that in addition to the improvements made in the navigation of the river, and to the money expended by the original Norwich Channel Company, and by the plaintiffs, the Merchants’ Bank, under a resolve of the General Assembly, has expended fifteen thousand dollars, and also, that by virtue of an appropriation made by Congress, there has been expended a further sum of - thirty thousand dollars; and thereby the navigation has been still more and [513] essentially improved for the passage of vessels of greater draught of water than before. But if the original charter, and the authority to collect tolls under it, upon a compliance with its conditions, was constitutional and valid ; and if the navigation has been improved, at the expense of the plaintiffs and of those to whose rights they have succeeded, of which the navigators of the river and these defendants, are receiving the benefit; how can it be said, that the plaintiffs can be deprived of the stipulated reimbursement provided for their expenditures, because other improvements from other means, have been superadded to theirs ? We know of no principle of common justice, which can sanction such a course. These latter improvements have been made in addition, and not, either in opposition to, or in destruction of, such as were effected by the plaintiffs. We advise the superior court, that the judgment of the justice of the peace is erroneous; and that it be reversed. In this opinion the other Judges concurred, except Waite, J., who declined giving any opinion, being a stockholder, or related to some stockholder, of the Thames Bank. Judgment reversed.