"Dormant" Commerce Clause

The Court recognized a power in the sovereign nature of the original States, (and subsequent States through the "Equal Footing Doctrine,) to charter and regulate "public franchises" for roads, bridges, ferries, etc. and to develop and regulate the "public ways." Declared Justice Daniel, in Withers v. Buckley, 61 U.S. 84 (1857):

"...The act of Congress of March 1st, 1817, in prescribing the free navigation of the Mississippi and the navigable waters flowing into this river, could not have been designed to inhibit the power inseparable from every sovereign or efficient Government, to devise and to execute measures for the improvement of the State, although such measures might induce or render necessary changes in the channels or courses of rivers within the interior of the State,..."

"...It cannot be imputed to Congress that they ever designed to forbid, or to withhold from the State of Mississippi, the power of improving the interior of that State, by means either of roads or canals, or by regulating the rivers within its territorial limits, although a plan of improvement to be adopted might embrace or affect the course or the flow of rivers situated within the interior of the State. Could such an intention be ascribed to Congress, the right to enforce it may be confidently denied. Clearly, Congress could exact of the new State the surrender of no attribute inherent in her character as a sovereign independent State, or indispensable to her equality with her sister States, necessarily implied and guarantied by the very nature of the Federal compact. Obviously, and it may be said primarily, among the incidents of that equality, is the right to make improvements in the rivers, water-courses, and highways, situated within the State..."

Stated Justice Harlan in Hennington v. State of Georgia, 163 U.S. 299 (1896) ...

"...In Gilman v. Philadelphia, 3 Wall. 713, 729, the question was as to the validity of an act of the legislature of Pennsylvania, authorizing the construction of a bridge over the Schuylkill, 'an ancient river and common highway of the state.' It appeared that the bridge, if constructed, would prevent the passage up the river of vessels having masts, interfere with commerce, and materially injure the value of certain wharf and dock property on the river. Congress had not passed any act on the subject, but the contention was that such an interference with commerce on a public navigable water was inconsistent with the constitution of the United States. The court said: 'It must not be forgotten that bridges, which are connecting parts of turnpikes, streets, and railroads, are means of commercial transportation, as well as navigable waters, and that 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. 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 case of Smith v. Alabama, 124 U.S. 465, 474, 479 S., 482, 8 Sup. Ct. 564, is instructive...This court referred to and reaffirmed the principle announced in Sherlock v. Alling, 93 U.S. 99, 102, where it was said: 'In conferring upon congress the regulation of commerce, it was never intended to cut the states off from legislating on all subjects relating to the health, life, and safety of their citizens, though the legislation might indirectly affect the commerce of the country. Legislation, in a variety of ways, may affect commerce and persons engaged in it without constituting a regulation of it within the meaning of the constitution.'

"These authorities make it clear that the legislative enactments of the states passed under their admitted police powers, and having a real relation to the domestic peace, order, health, and safety of their people, but which by their necessary operation, affect to some extent, or for a limited time, the conduct of commerce among the states, are yet not invalid by force alone of the grant of power to congress to regulate such commerce, and, if not obnoxious to some other constitutional provision or destructive of some right secured by the fundamental law, are to be respected in the courts of the Union until they are superseded and displaced by some act of congress passed in execution of the power granted to it by the constitution. Local laws of the character mentioned have their source in the powers which the states reserved, and never surrendered to congress, of providing for the public health, the public morals, and the public safety, and are not, within the meaning of the constitution, and considered in their own nature, regulations of interstate commerce, simply because, for a limited time or to a limited extent, they cover the field occupied by those engaged in such commerce."

Escanaba & Lake Michigan Transp. Co. v. City of Chicago, 107 U.S. 678 (1883,) involved a conflict of draw-bridge traffic with that on the Chicago River, a navigable water of the United States. Justice Field explained that the supremacy of the federal Commerce Power over State law remains moot under "dormant" Commerce Powers; and that the State internal police powers were intended to address matters affecting local and internal commerce, while the federal power was intended to address issues where uniformity among States was required on the national scope:

"The Chicago river and its branches must, therefore, be deemed navigable waters of the United States, over which congress, under its commercial power, may exercise control to the extent necessary to protect, preserve, and improve their free navigation. But the states have full power to regulate within their limits matters of internal police, including in that general designation whatever will promote the peace, comfort, convenience, and prosperity of their people. This power embraces the construction of roads, canals, and bridges, and the establishment of ferries, and it can generally be exercised more wisely by the states than by a distant authority. They are the first to see the importance of such means of internal communication, and are more deeply concerned than others in their wise management. Illinois is more immediately affected by the bridges over the Chicago river and its branches than any other state, and is more directly concerned for the prosperity of the city of Chicago, for the convenience and comfort of its inhabitants, and the growth of its commerce. And nowhere could the power to control the bridges in that city, their construction, form, and strength, and the size of their draws, and the manner and times of using them, be better vested than with the state, or the authorities of the city upon whom it has devolved that duty. When its power is exercised so as to unnecessarily obstruct the navigation of the river or its branches, congress may interfere and remove the obstruction. If the power of the state and that of the federal government come in conflict, the latter must control and the former yield. This necessarily follows from the position given by the constitution to legislation in pursuance of it, as the supreme law of the land. But until congress acts on the subject, the power of the state over bridges across its navigable streams is plenary. This doctrine has been recognized from the earliest period, and approved in repeated cases, the most notable of which are Wilson v. Blackbird Creek Co. 2 Pet. 245, which was decided in 1829, and Gilman v. City of Philadelphia, 3 Wall. 713, which was decided in 1865.

"In the first of these cases, an act of Delaware incorporated the Blackbird Creek Company, and authorized it to construct a dam over one of the small navigable rivers of the state, which obstructed the navigation of the stream. A sloop, licensed and enrolled according to the navigation laws of the United States, broke and injured the dam, and thereupon an action was brought for damages by the company. The owners of the sloop set up that the river was a public and common navigable creek 'in the nature of a highway,' in which the tides had always flowed and reflowed, and in which there was and of right ought to be a common and public way for all the citizens of the state of Delaware and of the United States, with sloops and other vessels to navigate at all times of the year at their free will and pleasure; that the company had wrongfully erected the dam across the navigable creek and thereby obstructed the same; and that they had broken the dam in order to pass along the creek with their sloop. To this plea the company demurred, and the demurrer was sustained by the court of appeals of Delaware and by this court. The decision here was based entirely upon the absence of any legislation of congress upon the subject. Said Chief Justice MARSHALL, speaking for the court:

'The measure authorized by this act (of Delaware) stops a navigable creek, and must be supposed to abridge the rights of those who have been accustomed to use it. But this abridgment, 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 the complainants 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 in execution of the power to regulate commerce, 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 contact with such act, would be void. But congress has passed no such act. The repugnancy of the law of the Delaware with the constitution is placed entirely upon its repugnancy with the power of congress to regulate commerce with foreign nations and among the several states,-a power which has not been so exercised as to affect the question.'

"...[reGilman v. City of Philadelphia,] The circuit court dismissed the bill, and this court affirmed the decree, holding that as the river was wholly within her limits, the state had not exceeded the bounds of her authority, and that until the dormant power of the constitution was awakened and made effective by appropriate legislation, the reserved power of the state was plenary, and its exercise in good faith could not be made the subject of review by the court..."

"[T]he doctrine declared in these several decisions is in accordance with the more general doctrine now firmly established, that the commercial power of congress is exclusive of state authority only when the subjects upon which it is exercised are national in their character, and admit and require uniformity of regulation affecting alike all the states. Upon such subjects only that authority can act which can speak for the whole country. Its non-action is, therefore, a declaration that they shall remain free from all regulation. Welton v. State, 91 U.S. 275; Henderson v. Mayor of New York, 92 U.S. 259; County of Mobile v. Kimball, 102 U.S. 691.

"On the other hand, where the subjects on which the power may be exercised are local in their nature or operation, or constitute mere aids to commerce, the authority of the state may be exerted for their regulation and management until congress interferes and supersedes it. As said in the County of Mobile v. Kimball:

'The uniformity of commercial regulations, which the grant to congress was designed to secure against conflicting state provisions, was necessarily intended only for cases where such uniformity is practicable. Where, from the nature of the subject or the sphere of its operation, the case is local and limited, special regulations, adapted to the immediate locality, could only have been contemplated. State action upon such subjects can constitute no interference with the commercial power of congress, for when that acts the state authority is superseded. Inaction of congress upon these subjects of a local nature or operation, unlike its inaction upon matters affecting all the states and requiring uniformity of regulation, is not to be taken as a declaration that nothing shall be done in respect to them, but is rather to be deemed a declaration that for the time being and until it sees fit to act they may be regulated by state authority.'102 U.S. 699.

"Bridges over navigable streams, which are entirely within the limits of a state, are of the latter class. The local authority can better appreciate their necessity, and can better direct the manner in which they shall be used and regulated, than a government at a distance. It is, therefore, a matter of good sense and practical wisdom to leave their control and management with the states, congress having the power at all times to interfere and supersede their authority whenever they act arbitrarily and to the injury of commerce."

Justice Bradley, in Parkersburg & Ohio River Transp. Co. v. City of Parkersburg, 107 U.S. 691 (1883,) summarizes the status of the State/federal interface up to the passage of the Navigation Acts.

"In the various bridge cases that have come before the courts of the United States, where bridges (or dams) have been erected by state authority across navigable streams, the refusal to interfere with their erection has always been based upon the absence of prohibitory legislation by congress, and the power of the states over the subject in the absence of such legislation. Where the regulation of such streams by congress has been only of a general character, such as the establishment of ports and collection districts thereon, it has been held that the erection of bridges, furnished with convenient draws, so as not materially to interfere with navigation, is within the power of the states, and not repugnant to such general regulation. The former cases on this subject were reviewed in Escanaba & L. M. Transp. Co. v. City of Chicago, decided at the present term of this court, and reported in 2 SUP. CT. REP. 185.

"It is believed that no case can be found in which state laws, or regulations under state authority, on subjects of a local nature, have been set aside on the ground of repugnance to the power of regulating commerce given to congress, unless it has appeared that they were contrary to some express provision of the constitution, or to some act of congress, or that they amounted to an assumption of power exclusively conferred upon congress."

Public improvements in "highways" (including "public ways" over watercourses,) is a fundamental function of the State, subject only to the paramount authority of Congress to prevent encroachment upon interstate or foreign commercial navigation. As stated by Justice Field in Huse v. Glover, 119 U.S. 543 (1886):

"The state is interested in the domestic as well as in the interstate and foreign commerce conducted on the Illinois river; and to increase its facilities, and thus augment its growth, it has full power. It is only when, in the judgment of congress, its action is deemed to encroach upon the navigation of the river as a means of interstate and foreign commerce that that body may interfere and control or supersede it...How the highways of a state, whether on land or by water, shall be best improved for the public good, is a matter for state determination, subject always to the right of congress to interpose in the cases mentioned. Spooner v. McConnell, 1 McLean, 337; Kellogg v. Union Co., 12 Conn. 7; Thames Bank v. Lovell, 18 Conn. 500; McReynolds v. Smallhouse, 8 Bush, 447."