M. Justice NELSON
delivered the opinion of the court.
The motion in this case is founded upon a bill filed to carry into execution a decree of the court, rendered against the defendants at the adjourned term in May, 1852, which decree declared the bridge errected by them across the Ohio River, between Wheeling and Zane's Island, to be an obstruction of the free navigation of the said river, and thereby occasioned a special damage to the plaintiff, for which- there was not an adequate remedy at law, and directed that the obstruction be removed, either by elevating the bridge to a height designated, or by abatement.'
, Since the rendition of this decree, and on the 31st August, 1852, an act of congress has been passed as follows : " That the bridges across the Ohio River at Wheeling, in the State of Virginia, and at Bridgeport, in the State of Ohio, abutting on Zane's Island, in said river, are. hereby declared to be lawful structures in their presént _positibns and elevations, and shall be so held and taken to be, any thing in the law or- laws of the United States to the contrary notwithstanding.
And further: " That the said bridges be declared to be and are established post-roads for the passage of the mails of the United States, and that the Wheeling and Belmont Bridge Company are authorized to have and maintain their bridges at their present site and elevation ; and the officers and crews -of all vessels and boats navigating said river are required to regulate the use of their said vessels, and of any pipes or chimneys belonging thereto, so as not to interfere with the elevation and construction of said bridges."
The defendants rely upon this act of congress as furnishing authority for the continuance of the bridge as constructed, and as superseding the effect and operation of the decree of the court previously rendered, declaring it an obstruction to the navigation.
On the part of the plaintiff, it is insisted that the act is unconstitutional and void, which raises the principal question in the case.
In order to a proper understanding of this question it is ma terial to recur to the ground and'principles upon which the majority of the court proceeded in rendering the decree now sought to be enforced.
The bridge had been constructed under an act of the legislature of the State- of Virginia; and it was- admitted that act conferred full 'authority upon the defendants for the erection, subject only to the power of congress in the regulation of commerce. It was claimed, however, that congress had acted upon the subject and had -regulated the navigation of the Ohio River, and had thereby secured to the public, by virtue of its authority, the free and unobstructed use of the same; and that the erection of the bridge, so far as it interfered' with the enjoyment of this use, was inconsistent with and in violation of the acts of congress, and destructive of the right derived under them; and that, to the extent of this interference with the free navigation of the river, the act of the legislature "of Virginia afforded no authority or- justification. It was in conflict with the acts of congress, which were the paramount law. -
This being the view of the case taken by a majority of -the court, they found no difficulty in arriving at the conclusion, that the obstruction of the navigation of the river, by the bridge, was a violation of the right secured to the public by the constitution and laws of congress, nor in applying the appropriate remedy in behalf of the plaintiff. The ground and principles upon which the court proceeded will be found reported in 13 How. 518.
Since, however, the rendition of this decree, the acts of congress, already'referred to, have been passed, by. which the bridge is made a post-road for the passage of the mails of the United States, and the defendants are authorized to have and maintain it at its present site and elevation, and requiring all persons navigating the -river to regulate such navigation so as not to interfere with it.
So far, thérefore, as this bridge created an obstruction to the free navigation of the river, in view of the previous acts of congress, they are to be regarded as modified by this subsequent legislation; and, although it still may be ¿n .obstruction in fact, is not so in thé contemplation of law. We have already said, and the principle is undoubted, that the act of the legislature, of Virginia conferred full authority to erect and maintain the bridge, subject to the exercise of the power of congress to regulate the navigation of the river. That body having in the exercise of this power, regulated the navigation consistent with its preservation and continuation, the authority to maintain it would seem to be complete. That authority combines the concurrent powers of both governments, state and federal, which, if not- sufficient, certainly none can be found in our system of government. ' '
We do not enter upon the question, whether or not congress possess the power, under the authority in the constitution, " to establish post-offices and post-roads," to legalize this bridge; for, conceding that no such powers can be derived from this clause, it must be admitted that it is, at least, necessarily included in the power conferred to regulate commerce among the several States. The regulation of commerce includes intercourse and navigation, and, of course, the power to determine what shall or shall not be deemed in judgment of law an obstruction to navigation; and that power, as we have seen, has been exercised consistent with the continuance of the bridge.
But it is urged, that the act of congress cannot have the effect and operation to annul the judgment of the court already rendered, or the rights determined thereby in favor of the plaintiff. This, as a general ' proposition, is certainly not' to be denied, especially as it respects adjudication upon the private rights of parties. . When they have _ passed into judgment'the fight becomes absolute, ánd 'it is the duty of the court to enforce it.
The case before us, however, is distinguishable from this class of cases, so far as it respects that portion of the decree directing .the abatement of the bridge. Its interference with the free navigation of the river constituted an obstruction of a public right secured by acts of congress.
But, although this right of navigation be a public right common to all-, yet, a private party sustaining special damage by the obstruction may, as has been held in this case, maintain an action at law against the party creating it, to recover his damages ; or, to prevent irreparable injury, .file a bill in chancery for the purpose of removing the obstruction. In both cases, the private right to "damages, or to the removal, arises out of the unlawful interference'with the enjoyment of the public right, which, as we have seen, is under the regulation of congress. Now, we agree, if the remedy in this case had been an action at law, and a judgment rendered in favor of the plaintiff for damages, the right to these would have passed beyond the reach of the power of congress. It would have depended, not upon the public right of the free navigation of the river, but upon the judgment of the court. The decree before us, so far as it respect "the costs adjudged, stands upon the same principles, and is unaffected by the subsequent law. But that part of the decree, directing the abatement of the obstruction, is executory, a continuing decree, which requires not only the removal of the bridge, but enjoins the defendants against any reconstruction or continuance. Now, whether it is a future existing or continuing obstruction depends upon the question whether or not it interferes with the right of navigation; If, in the mean time, since the decree, this right has been modified by the competent authority, so that the bridge is no longer an unlawful obstruction, it is quite plain the decree of the court cannot be enforced. There is no longer any interference with the enjoyment of the public right inconsistent with law, no more than there would be where the plaintiff himself had consented to it, after the rendition of the decree. Suppose the decree had been executed, and after that the passage of the law in question, can if be doubted but that the defendants would have had a right to reconstruct it ? And is it not equally clear that the right to maintain it, if not abated, existed from the moment of the enactment ?
A class of cases that have frequently occurred in the state courts contain principles analogous to those involved in the present case.' The purely internal streams of a State which are navigable belong to the riparian owners to the thread of the stream, and, as such, they have a right to use the waters and bed beneath, for their own private emolument, subject only to the public right of navigation. They may construct wharves or dams or canals for .the purpose of subjecting the stream to the various uses to which it may be applied, subject to this public easement. But, if these structures materially interfere with the public right, the obstruction may be removed or abated as a public nuisance.
In respect to these purely internal streams of a State, the public right o'f navigation is exclusively under the control and regulation of the state legislature; and in cases where these erections or obstructions to the navigation are constructed under a law of the State, or sanctioned by legislative authority, they are neither a public nuisance subject to abatement, nor is the individual who may have sustained special damage from their interference with the public use entitled to any remedy for his loss. So far as the public use of the stream is concerned, the legislature having the power to control and regulate it, the statute authorizing the structure, though it may be a real impediment to the navigation, makes it lawful. 5 Wend. 448, 449; 15 Ib. 113; 17 T. R. 195; 20 Ib. 90, 101; 5 Cow. 165.
It is also urged that this act of congress is void, for the reason that it is inconsistent with the compact between the States of Virginia and Kentucky, at the time of the admission of the latter into the Union, by which it was agreed, " that the use and navigation of the River Ohio, so far as the territory of the proposed, or the territory that shall remain within the limits of'this commonwealth, lies thereon, shall be free and common to thé citizens of the United States," and which compact was assented •to by congress at the time of the admission of the State.
This court held, in the case of Green et al. v. Biddle, 2 Wheat. 1, that an act of the legislature of Kentucky in contravention of the compact was null and void, within the'provision of the constitution forbidding a State to pass any law impairing the obligation of contracts. But that is not the question here. The question here is, whether or not the compact can operate as a restriction upon the power of congress under the constitution to regulate commerce among .the several States? Clearly not. Otherwise congress and two States would' possess the power to modify and alter the constitution itself.
This is so plain that it is unnecessary to pursue the argument further. But we may refer to the case of Wilson v. Mason, 1 Cranch, 88, 92, where it was held that this. compact, which stipulated that rights acquired under the commonwealth of Virginia shall be decided according to the then existing laws, could not deprive congress of the power to regulate the appellate juris- diction of this court, and prevent a review where none was given in the state law existing at the time of the compact.- Again, it is insisted that the act of congress is void, as being inconsistent with the clause in the ninth section of article first of the constitution, which declares' that " no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another; nor shall vessels bound to or from one State be obliged to enter, clear, or pay duties in another."
It is urged that the interruption of the navigation of the steamboats engaged in commerce and conveyance of passengers upon the Ohio River at Wheeling from the erection of the bridge, and the delay and expense, arising therefrom, virtually operate to give a preference to this port over that of Pittsburg; that the vessels to and from Pittsburg navigating the Ohio and Mississippi rivers are not only subjected to this delay and expense in the course of the'voyage, but that the obstruction will necessarily have the effect to stop the trade and business at Wheeling, or divert the same in some other direction or channel of commerce. Conceding all this to be true, a majority of the court are of opinion that the act of congress is not inconsistent with the clause of the constitution referred to — in other words, that is not giving a preference to the ports of one State over those of another, within the true meaning of that provision. There are many acts of congress passed in the exercise of this power to regulate commerce, providing for a Special advantage to the port or ports of one State, and which very advantge may incidentally operate to the prejudice of- the ports in - a neighboring State, which have never been supposed to conflict with this limitation upon its power. The improvement of rivers and harbors, the erection of light-houses, and other facilities of commerce, may be referred to as examples. It will not do to say that the exercise of an admitted power of congress conferred by the constitution is to be withheld, if it appears, or can be shown, that the effect and operation of the law may incidentally extend beyond the limitation of the power. Upon any such interpretation, the principal object of the framers of the instrument in conferring the power would be sacrificed to the subordinate consequences resulting from its exercise. These consequences and incidents are very proper considerations to be urged upon congress for the purpose of dissuading that body from its exercise, but afford no ground for denying the power itself, or the right to exercise it.
The court are also of opinion that, according to the true exposition of this prohibition upon the power of congress, the law in question cannot be regarded as in conflict with it.
• The propositions originally introduced into the convention, from which this clause in the constitution was derived, declared that congress shall not have power to compel vessels belonging to citizens or foreigners to enter or pay duties or imposts in any other State than that to which they were bound, nor to clear from any other than that in which their cargoes were laden. Nor shall any privilege or immunity be granted to any vessels on entering or clearing out, or paying duties or imposts, in one State in preference to another. Also, that congress shall not have power to fix or establish the particular ports for collecting the duties or imposts in any State, unless the State should neglect to fix them upon notice. I give merely the substance of the several propositions.
Luther Martin, in his letter to the legislature of Maryland, says that these propositions were introduced into the convention by the Maryland delegation; and that without them, he observes, it would have, been in the power of congress to compel ships sailing in or out of the Chesapeake to clear or enter at Norfolk, or some port in Virginia — a regulation that would be injurious to the commerce of Maryland. It appears also, from the reports of the' convention, that several of the delegates from that State expressed apprehensions that under the power to regulate commerce congress might favor ports of particular States, by requiring vessels destined to other States to. enter and clear at the ports of the favored ones, as a vessel bound for Baltimore .to enter and clear at Norfolk.
These several propositions finally took the form of the clause in question, namely: " No preference shall be given by any. regulation of commerce or revenue to the ports of one State over those of another; nor shall vessels bound to or from one State be obliged to enter or clear or pay duties in another." 1 Elliot's Deb. 266, 270, 279, 280, 311, 375; 5 Ib. 478, 483, 502, 545.
The power to establish • their. ports- of entry and clearance by the States was given up, and left to' congress. But the rights of the States -were secured, by the exemption of vessels from the necessity of entering or paying duties in the ports of any State other than that to which they were bound, or to obtain a clearance from any port other than at the home port, or that from which they sailed. And, also, by the provision that no preference should ,be given, by any regulation of commerce or revenue, to the ports of one State over those of another. -So far as the regulation of revenue is concerned, the prohibition in the clause does not seem to have been very important, as, in a previous section, (8,) it was declared, that " all duties, imposts, and excises, shall be uniform throughout the United Statesand, as to a preference by a regulation of commerce, the history of the provision, as well as its language, looks to a prohibition against granting privileges or immunities to vessels entering or clearing from the ports of .one, State over those of another. That these privileges and immunities, whatever they may be in' the judgment of congress, shall be common and equal in all the ports of the several States. Thus much is undoubtedly embraced in the prohibition; and it may, certainly, also embrace any other description of legislation looking to a direct privilege or. preference of the ports of any particular State over those of another. Indeed,- the clause, in terms, seems to import a prohibition against some positive legislation by congress to this effect, and hot against any incidental - advantages that might possibly result from the legislation of congress upon other subjects connected with commerce, and confessedly within its power.
Besides, it is a mistake to assume that congress is forbidden' to give a preference to a port in one State over a port in another. Such preference is given in every instance where it makes a port' in one State a port of entry, and refuses to make another port in another State a port of entry. No greater preference, in one sense, can be more directly given than in this way; and yet, the power of congress to give such preference has never been questioned. Nor can it be without asserting that the moment congress makes a port in one State a port .of entry, it is bound; at the same time, to make all other ports in all other States ports of entry. The truth seems to be, that what is forbidden is, not discrimination between individual ports within the same or-different States; but discrimination between States; and if so, in order to bring this case within -the prohibition, it is necessary to show, not merely discrimination between Pittsburg and Wheeling, but discrimination between the ports of Virginia and those of Pennsylvania.
Upon the whole, without pursuing the examination further, our conclusion is, that, so far as respects that portion of the decree which directs the alteration or abatement of the bridge, it cannot be carried into execution since the act of congress which-regulates the navigation of the Ohio River, consistent with the existence and continuance of the bridge; and that this part of the motion, in behalf of the plaintiff, must be denied. But that, so far as respects that portion of the decree which directs the costs to be paid by the defendants, the motion must be granted.
A motion has also been made, on behalf of the plaintiff, for attachments against the president of the Bridge Company and others, for disobedience of an injunction issued by Mr. Justice Grier, in vacation, on the 27th June, 1854.
It appears that since the rendition of the decree of this .court and the passage of the act of congress, and before any proceedings taken to enforce the execution of the decree, notwithstanding this act, the bridge was broken down, in a gale of wind, leaving only some of the cables suspended from the. towers across the river. Upon the happening of this event, a bill was filed by the plaintiff, and an application for the injunction above mentioned was made, which was granted,-.enjoining the defendants, their officers and agents, against a reconstruction of the bridge, unless in conformity with the requirements of the previous decree in the case. The object of the injunction was to suspend the work, together with- the great expenses attending it, until the determination of the question by this-court as to the force and effect of the act of congress, in respect to the execution of the decree. The defendants did not- appear upon the notice given of the motion for .the injunction, and it was, consequently, granted without opposition.
After the writ, was served, it was disobeyed, the defendants proceeding in tfte reconstruction of the bridge, which they had already begun before the issuing or service of the process.
A motion is now made for attachments against the persons mentioned for'this disobedience and contempt.
A majority of the court are of opinion, inasmuch as we have arrived at the conclusion that the act of congress afforded full authority to the defendants to reconstruct the bridge, and the decree directing its alteration or abatement could not, therefore, be carried into execution after the enactment of this law,x and inasmuch as'the granting of, an attachment for the disobedience is a question resting in the, discretion of the court, that, under all the circumstances of the case, the motion should be denied.
Some of the judges also entertain doubts as to the regularity of the proceedings in pursuance of which the injunction was. issued.
Mr. Justice WAYNE, Mr. Justice GRIER, and Mr. Justice CURTIS, are of opinion that, upon the case presented, the attach-, ment for contempt should issue, and in which opinión I concur.
The motion for the attachment is denied, and the injunction dissolved.