State of Pennsylvania v. The Wheeling &c. Bridge Co. 13 H. becomes necessary to proceed in the prize jurisdiction of the court, where the property may be condemned or acquitted by the sentence of the court, and the whole controversy be finally settled. 4 Cr. 241, Rose v. Himeley; 2 Wheat. App. 41, 42; 1 Kent's Com. 101, 102; 6 Rob. 48; 3 ibid. 192; 2 Gall. 368; 2 ibid. 240. But the circuit court erred in giving final judgment against the libellants, upon the ground that the answer showed probable grounds for the seizure. The question of probable cause is not presented in the present stage of the proceedings, and cannot arise until the validity of the capture is determined. If it turn out, upon the final hearing upon the question of prize or no prize, that the vessel and cargo were liable to capture and condemnation, it would necessarily follow that there was not only probable cause, but good and sufficient cause, for the seizure. And if, on the contrary, it should be found that they were not liable to capture, as prize of war, the libellants would be entitled to restitution, or the value in damages, although the strongest probabilities appeared against them at the time of the seizure. Probable cause or not becomes material only where restitution is * awarded, and the libellants claim additional damages, for [* 518 ] the injury and expenses sustained from the seizure and detention. It applies only to these additional damages; and, however strong the grounds of suspicion may have been, it is no bar to restitution, if the claimant can show that the goods which he claims belonged to him, were neutral, and that nothing had been done that subjected them to capture and condemnation. The judgment of the circuit court must therefore be reversed, and a mandate awarded, directing the case to be remanded to the district court, to be there proceeded in, according to the rules and principles stated in this opinion. The appeal on the part of the respondent is dismissed. The decision upon the matter in controversy was in his favor, and the question of law decided against him on the first demurrer, was open for argument upon the appeal of the libellants. There was no ground, therefore, for this appeal. 18 H. 110; 20 H. 296; 5 Wal. 62, 377. THE STATE OF PENNSYLVANIA, Complainant, v. THE WHEELING AND BELMONT BRIDGE COMPANY, WILLIAM OTTERSON and GEORGE CROFT. 13 H. 518. The Ohio River being a public navigable stream, of right, should remain free and unob structed. The Wheeling bridge is an obstruction of the free navigation of the Ohio by vessels propelled by steam. A law of the State of Virginia authorizing this obstruction was inoperative. State of Pennsylvania v. The Wheeling &c. Bridge Co. 13 H. 1. Because it impaired the obligation of the compact between Virginia and Kentucky, that the use and navigation of the Ohio, so far as the territory of Virginia or Kentucky is concerned, shall be free and common to the citizens of the United States. 2. Because it is in conflict with the legislation of congress which regulates the commerce among different States and with foreign nations carried on upon this river. The State of Pennsylvania, as the proprietor of public works, suffers special damage in a property, by reason of this public nuisance, and this damage is continued from day to day. is not capable of proof and computation in each item thereof, and so is not reparable by the course of the common law, and in such a case a bill in equity, by the State, lies, to enjoin the nuisance. But, if by the construction and use of a suitable and practicable draw, the navigation of the river should be restored to such a condition as, in the judgment of the court, renders it free from unreasonable obstruction, the bridge should not be treated as a nuisance. THE substance of the pleadings and of the report of the commissioner, and the facts upon which the court proceeded, are set forth in its opinion. Campbell, (attorney-general of Pennsylvania,) and Stanton, for the complainant. Stewart and Johnson, contrà. M'LEAN, J., delivered the opinion of the court. [* 557 ] This bill was filed in the clerk's office of this court, in July, 1849. It charged that the defendants, under color of an act of the legislature of Virginia, but in direct violation of its terms, were engaged in the construction of a bridge across the Ohio River, at Wheeling, which would obstruct its navigation, to and from the ports of Pennsylvania, by steamboats and other craft which navigate the same. That the State of Pennsylvania owns certain valuable public works, canals, and railways, constructed at great expense as channels of commerce, for the transportation of passengers and goods, from which a large revenue, as tolls, was received by the State. That these works terminate on the Ohio River, and were constructed with direct reference to its free navigation; the goods and passengers transported on these lines were conveyed in steamboats, on the Ohio River; and the Wheeling bridge would so obstruct the navigation of that river, as to cut off and direct trade and business from the public works of Pennsylvania, impair and diminish the tolls and revenue of the State, and render its improvements useless. The bill prayed an injunction against the erection of the bridge, as a public nuisance, and for general relief. In August, 1849, a supplemental bill was filed, stating that, after notice, the defendants continued to prosecute their work, and were engaged in stretching iron cables across the channel of the river, State of Pennsylvania v. The Wheeling &c. Bridge Co. 13 H. which would obstruct its navigation, and it prayed that these cables might be abated. At the December term of this court, 1849, another supplemental bill was filed, representing that defendants had completed the erection of the bridge, and that it had obstructed the passage of steamboats carrying freight and passengers to and from the ports of Pennsylvania; that it also hindered the passage of steamships and sea-going vessels, which were accustomed to be constructed at the ports of Pennsylvania, and would injure and destroy the trade and business of ship and boat building, which was carried on by the citizens of Pittsburg, and it prayed an abatement of the bridge as a public nuisance, and for general relief. In their answers the defendants allege the exclusive sovereignty of Virginia over the Ohio River, and set forth the [* 558 | act authorizing the erection of the bridge. And they object to the application for an injunction and the relief prayed for, that the persons injured might have remedy in the courts of Virginia; that the State of Pennsylvania had no corporate capacity to institute this suit in the supreme court, to vindicate the rights of her citizens; that the State is only a nominal party, whese name was, without proper authority, used by individuals; that the bridge is a connecting link of a great public highway, as important as the navigation of the Ohio River; that Pennsylvania had set the example of authorizing bridges across the Ohio; that certain engineers of the United States had recommended a wire suspension bridge at Wheeling, and gave as their opinion, that "by an elevation of ninety feet, every imaginable danger of obstructing the navigation would be avoided;" that certain reports of committees in congress recognized the necessity of a bridge at Wheeling, and recommended an appropriation for that purpose; that the headway for steamers left by the bridge is amply sufficient, forty-seven feet above the water, for all useful purposes; and if sufficient draught cannot be had at that height, blowers might be added; that chimneys might have hinges on them, so as to be lowered without much inconvenience; that the bridge will not be an appreciable inconvenience to the average class of boats; that the bridge will not diminish or destroy trade between Pittsburg and other ports, or do irreparable injury to the citizens of Pennsylvania. The answer admits that the State of Pennsylvania has expended large sums of money in the construction of public improvements, terminating at Pittsburg and Beaver; that a great amount of freight and a large number of passengers do pass over said works, and that a large amount of toll to the State is derived therefrom; that the State of Pennsylvania v. The Wheeling &c. Bridge Co. 13 H. navigation of the Ohio River is important to the works above referred to, and that the value thereof would be affected injuriously if from any cause the passage of steamboats from the city of Pittsburg downwards were obstructed or impeded. But they deny that their bridge or the cables will have any such effect, or that it can in truth be called a nuisance. To the actual obstruction occasioned by the bridge, as charged in the second supplemental bill, they set up an amendatory and explanatory act of the Virginia legislature, passed January 11, 1850, declaring the height of ninety feet at the eastern abutment, ninety-three and a half feet at the highest point, and sixty-two feet at the western abutment, above the low-water level of the Ohio River, to be of lawful height, and in conformity with the intent and meaning of the 19th section of the charter. [* 559 ] *At December term, 1849, the question of jurisdiction was argued on both sides, and it was sustained by the entry of an order of reference to the Hon. R. H. Walworth, as special commissioner to take testimony and report: 1. Whether the bridge is, or is not, an obstruction of the free navigation of the Ohio River, by vessels propelled by steam or sails, engaged, or which may be engaged, in the commerce or navigation of said river. 2. If an obstruction be made to appear, what change or alteration in the construction and existing condition of the said bridge, if any, can be made, consistent with the continuance of the same across said river, that will remove the obstruction to the free navigation. At the ensuing term, near its close, the commissioner made his report, together with the report of the engineer employed, and the evidence taken before him, deciding : 1. That the bridge is not an obstruction to the free navigation of the Ohio by any vessels propelled by sails. 2. That the bridge is an obstruction of the free navigation of the Ohio by vessels propelled by steam. 3. That the change or alteration which can and should be made in the construction and existing condition of the bridge is, to raise the cables and flooring in such manner as to give a level headway, at least three hundred feet wide, over a convenient part of the channel, of not less than one hundred and twenty feet above the level of zero on the Wheeling water-gauge. To this report several exceptions were taken, by the counsel on both sides. As this is the exercise of original jurisdiction by this court, on the ground that the State of Pennsylvania is a party, it is important to State of Pennsylvania v. The Wheeling &c. Bridge Co. 13 H. ascertain whether such a case is made out as to entitle the State to assume this attitude. In the 2d section of the third article of the constitution, it is declared that the supreme court shall have original jurisdiction in a case, where a State shall be a party. In this case, the State of Pennsylvania is not a party in virtue of its sovereignty. It does not come here to protect the rights of its citizens. The sovereign powers of a State are adequate to the protection of its own citizens, and no other jurisdiction can be exercised over them, or in their behalf, except in a few specified cases. Nor can the State prosecute this suit on the ground of any remote or contingent interest in itself. It assumes and claims, not an abstract right, but a direct interest in the controversy, and that the power of this court, can redress its wrongs and save it from irreparable injury. If such a case be made out, the jurisdiction may be sustained. * When a State enters into a copartnership, or becomes a [* 560 ] stockholder in a bank, or other corporation, its sovereignty is not involved in the business, but it stands and is treated as other stockholders, or partners. And so in the present case, the rights asserted and relief prayed, are considered as in no respect different from those of an individual. From the dignity of the State, the constitution gives to it the right to bring an original suit in this court. And this is the only privilege, if the right be established, which the State of Pennsylvania can claim in the present case. It is objected, in the first place, that there is no evidence that the State of Pennsylvania has consented to the prosecution of this suit in its own name. This would seem to be answered by the fact, that the proceedings were instituted by the attorney-general of the State. He is its legal representative, and the court cannot presume, without proof, against his authority. In January, 1850, the following declaration passed unanimously by both branches of the Pennsylvania legislature : "Whereas the navigation of the River Ohio has been, and is now obstructed by bridges erected across its channel, between Zane's Island and the main Virginia and Ohio shores, so that steamboats and other water crafts hitherto accustomed to navigate said river, are hindered in their passage to and from the port of Pittsburg, and other ports in the State of Pennsylvania, and the trade and commerce, and business of this commonwealth interrupted, the revenue of her public works diminished and impaired, and steamboats, owned and navigated by citizens of this State, bound to and from her ports, are subjected to labor, expense, and delay, with hazard to life and property, by reason whereof the said bridges are a common and pub. 53 VOL. XIX. |