Opinion of the Court.

The same learned justice repeated and enlarged upon that idea in his dissenting opinion in Pennsylvania v. Wheeling Bridge, 18 How. 421, 442, 443, where, after the Wheeling Bridge, constructed across the Ohio River under an act of the State of Virginia, had by a decree of this court, at the suit of the State of Pennsylvania, been declared to be in its then condition an unlawful obstruction of the navigation of the river, and in conflict with the acts of Congress regulating such navigation, and therefore ordered to be elevated or abated, Congress passed an act, declaring the bridge to be a lawful structure in its then position and elevation, establishing it as a post road for the passage of the mails of the United States, authorizing the corporation to have and maintain the bridge at that site and elevation, and requiring the captains and crews of all vessels and boats navigating the river to regulate the use thereof, and of any pipes or chimneys belonging thereto, so as not to interfere with the elevation and construction of the bridge. Act of August 31, 1852, c. 111, §§ 6, 7; 10 Stat. 112.

But the majority of this court in that case held that "the act of Congress afforded full authority to the defendants to reconstruct the bridge." 18 How. 436. Mr. Justice Nelson, in delivering its opinion, said: "We do not enter upon the question, whether or not Congress possess the power, under the authority of 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 consistently with the continuance of the bridge." 18 How. 431. And Mr. Justice Daniel, in a concurring opinion, sustaining the validity of the act of Congress, said: "They have regulated this matter upon a scale by them conceived to be just and impartial, with reference to that commerce which pursues

Opinion of the Court.

the course of the river, and to that which traverses its channel, and is broadly diffused through the country. They have at the same time, by what they have done, secured to the government, and to the public at large, the essential advantage of a safe and certain transit over the Ohio." 18 How. 458. A similar decision was made in The Clinton Bridge, 10 Wall. 454. See also Miller v. New York, 109. U. S. 385.

In the cases, cited at the bar, of The Passaic Bridges, 3 Wall. appx. 782, decided by Mr. Justice Grier in the Circuit Court, and of Gilman v. Philadelphia, 3 Wall. 713, and Wright v. Nagle, 101 U. S. 791, in this court, the bridge in question had been erected under authority of a State and was wholly within the State, and no question arose, or was considered, as to the power of Congress, in regulating interstate commerce, to authorize the erection of bridges between two States.

But in Stockton v. Baltimore & New York Railroad, 32 Fed. Rep. 9, Mr. Justice Bradley, sitting in the Circuit Court, upheld the constitutionality of the act of Congress of June 16, 1886, c. 417, authorizing a corporation of New York and one of New Jersey to build and maintain a bridge, as therein directed, across the Staten Island Sound or Arthur Kill. 24 Stat. 78.

The reasons upon which the decision in that case rested were, in substance, the same as were stated by that eminent judge in two opinions afterwards delivered by him in behalf of this court, in which the power of Congress, by its own legislation, to confer original authority to erect bridges over navigable waters, whenever Congress considers it necessary to do so to meet the demands of interstate commerce by land, is so clearly demonstrated, as to render further discussion of the subject superfluous.

In Willamette Bridge v. Hatch, 125 U. S. 1, in which it was held that section 2 of the act of February 14, 1859, c. 33, (11 Stat. 383,) for the admission of Oregon into the Union, providing that "all the navigable waters of the said State shall be common highways, and forever free, as well to the inhabitants of said State as to all other citizens of the United States,"

Opinion of the Court.

did not prevent the State, in the absence of legislation by Congress, from authorizing the erection of a bridge over such a river, Mr. Justice Bradley, speaking for the whole court, said: "And although, until Congress acts, the States have the plenary power supposed, yet, when Congress chooses to act, it is not concluded by anything that the States, or that individuals by its authority or acquiescence, have done, from assuming entire control of the matter, and abating any erections that may have been made, and preventing any others from being made, except in conformity with such regulations as it may impose. It is for this reason, namely, the ultimate (though yet unexerted) power of Congress over the whole subjectmatter, that the consent of Congress is so frequently asked in the erection of bridges over navigable streams. It might itself give original authority for the erection of such bridges, when called for by the demands of interstate commerce by land; but in many, perhaps the majority of cases, its assent only is asked, and the primary authority is sought at the hands of the State." 125 U. S. 12, 13.

In California v. Pacific Railroad, 127 U. S. 1, it was directly adjudged that Congress has authority, in the exercise of its power to regulate commerce among the several States, to authorize corporations to construct railroads across the States, as well as the Territories of the United States; and Mr. Justice Bradley, again speaking for the court, and referring to the acts of Congress establishing corporations to build railroads across the continent, said: "It cannot at the present day be doubted that Congress, under the power to regulate commerce among the several States, as well as to provide for postal accommodations and military exigencies, had authority to pass these laws. The power to construct, or to authorize individuals or corporations to construct, national highways and bridges from State to State, is essential to the complete control and regulation of interstate commerce. Without authority in Congress to establish and maintain such highways and bridges, it would be without authority to regulate one of the most important adjuncts of commerce. This power in former times was exerted to a very limited extent, the

Opinion of the Court.

Cumberland or National Road being the most notable instance. Its exertion was but little called for, as commerce was then mostly conducted by water, and many of our statesmen entertained doubts as to the existence of the power to establish ways of communication by land. But since, in consequence of the expansion of the country, the multiplication of its products, and the invention of railroads and locomotion by steam, land transportation has so vastly increased, a sounder consideration of the subject has prevailed, and led to the conclusion that Congress has plenary power over the whole subject. Of course, the authority of Congress over the Territories of the United States, and its power to grant franchises exercisible therein, are, and ever have been, undoubted. the wider power was very freely exercised, and much to the general satisfaction, in the creation of the vast system of railroads connecting the East with the Pacific, traversing States as well as Territories, and employing the agency of state as well as Federal corporations." 127 U. S. 39, 40.

But

The act of Congress now in question declares the construction of the North River Bridge between the States of New York and New Jersey to be "in order to facilitate interstate commerce ;" and it makes due provision for the condemnation of lands for the construction and maintenance of the bridge and its approaches, and for just compensation to the owners, which has been accordingly awarded to the plaintiff in error.

In the light of the foregoing principles and authorities, the objection made to the constitutionality of this act cannot be sustained.

Judgment affirmed.

Statement of the Case.

MILLER v. TEXAS.

ERROR TO THE COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS.

This court expresses no opinion as to the validity or invalidity of the writ of error in this case.

When the record in a case brought by writ of error from a state court shows nothing of what took place in the state court of original jurisdiction, and in the appellate state court no objection raising a Federal question during the trial and before judgment, but such question is raised for the first time in the appellate court on a motion for a rehearing, the writ of error must be dismissed upon the ground that the Federal question is not properly presented by the record.

MOTION to dismiss. The plaintiff in error was indicted by the grand jury of Dallas County, Texas, for the murder of one Riddle on June 18, 1892. He was convicted July 23, 1892, and sentenced to death. From the judgment of the District Court of Dallas County, before which he was tried, he appealed to the Court of Criminal Appeals of Texas, the court of last resort in criminal cases, where the judgment of the court below was affirmed. A motion for a rehearing was then made and overruled. Defendant thereupon sued out this writ, assigning as error that the statute of the State of Texas prohibiting the carrying of dangerous weapons on the person, by authority of which statute the court charged the jury that, if defendant was on a public street carrying a pistol, he was violating the law, infringed the right of the defendant as a citizen of the United States, and was in conflict with the Second Amendment to the Constitution of the United States, providing that the right of the people to keep and bear arms shall not be infringed; second, that the same statute, which provided that any person carrying arms in violation of the previous section, might be arrested without warrant, under which the court charged the jury that defendant, if he were carrying arms in violation of the statute, was subject to arrest