(3) That if it is necessary that the United States Government should have an eminent domain still higher than that of the State in order that it may fully carry out the objects and purposes of the Constitution, then it has it.

(4) That the State held the lands under navigable waters not for the purpose of emolument, but for public use, especially for the public use of navigation and commerce; that consequently the use of a part of that soil for a bridge to be used for commercial purposes was not a diversion of the property from its original public use, and the State was entitled to no compensation therefor. In Luxton v. North River Bridge Co. (153 U. S., 525), already referred to, the power of the Congress to grant to a bridge company, created by it, the right to condemn property for a bridge and its approaches between the city of New York and the State of New Jersey was unanimously affirmed. Careful examination and study of this case is particularly recommended to all those journalistie expounders of constitutional law who repel with contempt any conclusion that might lead to the profanation of the (to them) sacred soil of the city of New York by a Federal highway.

In U. S. v. Gettysburg Electric Ry. (160 U. S.) the use of the power of eminent domain by the Federal Government for a patriotic purpose-the preservation and embellishment of the battlefield of Gettysburg-was maintained; and it was likewise maintained in Chappell v. U. S. (160 U. S., 499), to condemn land for a lighthouse, and the power again declared to exist "with or without any consent or concurrent action of the State."

In Monongahela Navigation Co. v. U. S. (148 U. S., 312) the United States used, without question, the power of eminent domain to condemn a dam and lock, constructed in the Monogahela River by a company authorized by the State to improve the navigation of such river and to collect tolls for the use of the lock. The Government of the United States took over the improvement of the river itself, and the court held that it must pay not only for the dam and lock itself but for the franchise granted by the State under which it was operated.

Most of the cases cited holding that the Congress under the interstate commerce grant has power to organize corporations to locate, build, and maintain interstate highways, and to grant such corporations the power of eminent domain for that purpose, imply, and some of them express the proposition that the Congress has itself the power to construct such highways. See the Callfornia case, supra.

In Luxton v. North River Bridge Co., supra, the court said:

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Congress has likewise the power exercised early in this century by successive acts in the case of the Cumberland or National Road from the Potomac across the Alleghenies to the Ohio, to authorize the construction of a public highway connecting several States."

In Stockton v. Baltimore, etc., R. R., supra. Mr. Justice Bradley said: "Under this power" (to regulate commerce among the States) "the navigation of rivers and harbors has been opened and improved, and we have no doubt that canals and waterways may be opened to connect navigable bays, harbors, and rivers with each other or with the interior of the country. Nor have we any doubt that under the same power, the means of commercial communication by land as well as by water may be opened up by Congress between different States, whenever it shall see fit to do so, either on the failure of the States to provide such communication, or whenever, in the opinion of Congress, increased facilities of communcation ought to exist. Hitherto it is true the means of commercial communication have been supplied either by nature in the navigable waters of the country, or by the States in the construction of roads, canals, and railroads, so that the functions of Congress have not been largely called into exercise under this branch of its jurisdiction and power, except in the improvement of rivers and harbors, and the licensing of bridges across navigable streams. But this is no proof that its power does not extend to the whole subject in all its possible requirements. Indeed it has been put forth in several notable instances, which stand as strong arguments of practical construction given to the Constitution by the legislative department of the Government. The Cumberland or National Road is one instance of a grand thoroughfare projected by Congress, extending from the Potomac to the Mississippi."

In Monongahela Navigation Co. v. United States, supra, and in Railroad Co. v. Maryland (21 Wall., 456), it was distinctly held that the interstatecommerce power of the Congress was the same over an interstate artificial highway as over a navigable water.

In the former case the court said (p. 341):

"The theory of the Government seems to be that the right of the navigation company to have its property in the river, and the franchises given by the State to take tolls for the use thereof, are conditional only, and that whenever the Government, in the exercise of its supreme power, assumes control of the river, it destroys both the right of the company to have its property there and the franchise to take tolls. But this is a misconception. The franchise is a vested right. The State has power to grant it. It may retake it, as it may take other private property, for public uses, upon the payment of just compensation. A like, though a superior, power exists in the National Government. It may take it for public purposes, and take it even against the will of the State; but it can no more take the franchise which the State has given than it can any private property belonging to an individual. "Notice to what the opposite view would lead: A railroad between Columbus, Ohio, and Harrisburg, Pa., is an interstate highway, created under franchises granted by the two States of Ohio and Pennsylvania, franchises not merely to construct, but to take tolls for the carrying of passengers and freight. In its exercise of supreme power to regulate commerce, Congress may condemn and take that interstate highway; but in the exercise of that power, and in the taking of such property, may it ignore the franchises to take tolls, granted by the States, or must it not rather pay for them, as it pays for the rails, the bridges, and the tracks? The question seems to carry its own answer. It may be suggested that the cases are not parallel, in that in the present there is a natural highway, while in that suggested it is wholly artificial. But the power of Congress is not determined by the character of the highway. Nowhere in the Constitution is there given power in terms over highways, unless it be in that clause to establish post offices and post roads. The power which Congress possesses in respect to this taking of property springs from the grant of power to regulate commerce; and the regulation of commerce implies as much control, as far-reaching power, over an artificial as over a natural highway. They are simply the means and instrumentalities of commerce, and the power of Congress to regulate commerce carries with it power over all the means and instrumentalities by which commerce is carried on. There may be differences in the modes and manner of using these different highways, but such differences do not affect or limit that supreme power of Congress to regulate commerce, and in such regulation to control its means and instrumentalities. We are so much accustomed to see artificial highways, such as common roads, turnpike roads, and railroads, constructed under the authority of the States, and the improvement of natural highways carried on by the General Government, that at the first it might seem that there was some inherent difference in the power of the National Government over them. But the grant of power is the same. There are not two clauses of the Constitution, each severally applicable to a different kind of highway."

The same thought was expressed in Ex parte Debbs (158 U. S., 590), as follows:

"Up to a recent date commerce, both interstate and international, was mainly by water, and it is not strange that both the legislation of Congress and the cases in the courts have been principally concerned therewith. The fact that in recent years commerce has come mainly to be carried on by railroads and over artificial highways has in no manner narrowed the scope of the constitutional provision, or abridged the power of Congress over such commerce. On the contrary the same fullness of control exists in the one case as in the other, and the same power to remove obstructions from the one as from the other.

“Constitutional provisions do not change, but their operation extends to new matters as the modes of business and the habits of life of the people vary with each succeeding generation. The law of the common carrier is the same to-day as when transportation on land was by coach and wagon, and on water by canal boat or sailing vessel, yet in its actual operation it touches and regulates transportation by modes then unknown-the railroad train and the steamship. Just so it is with the grant to the National Government of power over interstate commerce. The Constitution has not changed. The power is the same. But it operates to-day upon modes of interstate commerce unknown to the fathers, and it will operate with equal force upon any new modes of such commerce which the future may develop."

Transportation of persons and things is an absolutely necessary incident to three separate and distinct grants of power in the Constitution, the power to regulate commerce among the States, the military power, and the postal power, The control of the Federal Government over interstate transportation is an Implication from the power to regulate commerce, and an appropriate means to enable the Government to exercise its granted power. This grant is exclusive and unlimited. As well said by Mr. Justice Bradley in the Stockton case: "The power of Congress is supreme over the whole subject, unimpeded and unembarrassed by State lines or State laws, and in this matter the country is one, and the work to be accomplished is national; State interests, State jealousies, and State prejudices do not require to be consulted. In matters of foreign and interstate commerce there are no States." Under this power the Federal Government has taken entire possession and control of transportation by water and of the navigable highways of the country, even those which are solely within the limits of a State. No one may own or operate a vessel engaged in commerce on any navigable water in the Nation unless she is enrolled and licensed under the laws of the United States, unless she is inspected, if a steam vessel, at regular intervals as to her hull, boilers, and appliances by Federal officials, unless she is manned by officers who hold Federal licenses, and unless she is navigated according to the rules prescribed by Federal authority. Rivers, bays, lakes, and harbors have been improved and made navigable when they were not naturally navigable; new channels have been opened: old ones have been closed. The authority of the Federal Government over these natural highways has been judicially established in a case in which two Sovereign States were parties, i. e., South Carolina v. Georgia (93 U. S., 4), The Congress has not yet exercised its full power over interstate transportation by land over artificial highways, nor even to the extent to which it has exercised it over transportation by water over natural highways.

The control of the Federal Government over transportation for military purposes is also a necessary incident to the war power. It may transport its armies and its war material by any means it chooses to select; it may provide its own instrumentalities for that purpose; or it may use private or quasipublic instrumentalities. It may use existing highways, or it may construct and operate such highways itself. Nobody ever doubted or questioned the power of the Congress to construct and operate military roads, and it exercised the power several times in the early days of the country.

It is a matter of history that Jefferson Davis, both statesman and soldier as he was, advocated the construction by the United States, as a military necessity, of a railroad connecting the Atlantic and the Pacific Oceans, and the surveys for such a road were made during his incumbency of the office of Secretary of War. The Union Pacific Railroad was the outcome of this plan. The Congress did not construct it itself, but it organized a corporation for that purpose, and gave it enormous grants of land and money to aid in its construction, and, as stated above on the face of the statute, pitched its authority so to act upon the military power, the commerce power, and the postal power.

Transportation being of the very essence of the postal power, the Constitution contains an express and specific grant to the Congress of power "to establish post roads." It is the only specific grant in the Constitution over highways. Under this express grant of power can the Congress itself construct and operate highways for postal purposes?

To the present generation of Americans who have seen the disappearance of all that narrow sect who seemed to regard the Federal Government as an alien enemy, who denied to it the powers appropriate to the accomplishment of its purposes, who particularly denied its power to make internal improvements of any kind, or to acquire lands within the limits of a State even for Federal purposes without the 'consent of the States, and who denounced as a rank usurpation the decision of the Supreme Court as to the charter of the Second Bank of the United States, and as to the want of power in the States to destroy it by taxation, the answer to this proposition is free from difficulty, and is affirmative.

The views of this extinct sect are well expressed in Mr. Justice Daniel's dissenting opinion in Searight v. Stokes (3 How., p. 180), who said:

"I hold then that neither Congress nor the Federal Government in the exer cise of all or any of its powers or attributes possesses the power to construct roads, nor any other description of what have been called internal improvements, within the limits of the State. That the territory and soil of the several States

appertain to them by title paramount to the Constitution, and can not be taken, save with the exception of those portions thereof which might be ceded for the seat of the Federal Government, and for sites permitted to be purchased for forts, arsenals, dock yards, etc. That the power of the Federal Government to acquire, and that of the States to cede to that Government portions of their territory, are by the Constitution limited to the instances above adverted to, and that these powers can neither be enlarged nor modified, but in virtue of some new faculty to be imparted by amendments to the Constitution."

They further find full development in great detail in the message of President Monroe of May 4, 1822, vetoing an act of the Congress imposing tolls for the use of the Cumberland or National Road, he holding that neither under the power to regulate commerce, nor under the post-road power, nor under any other power could the Congress build or authorize the building of a road in the States; and also in the message of President Polk of August 3, 1846, vetoing an appropriation of $1,374,450, for the improvement of certain harbors, rivers, and lakes, on the ground that the United States had no constitutional power to construct works of internal improvement, or to appropriate money from the Treasury for that purpose. Would not the men of to-day "stare and gasp" if the President should veto the river and harbor bill on any such grounds?

The power of the Government on this subject is now judicially settled by the case of South Carolina v. Georgia, cited above, and long before that case was decided had been settled by the common sense and acquiescence of the whole American people.

The zeal of the anti-internal improvement faction led them to attack even the express power to establish post offices and post roads. They maintained that such power was only a power to direct where post offices should be kept and to designate or point out what roads shall be mail roads. They denied the power to build a post office and to take land for that purpose, and to build a post road and to take land for such purpose. This ancient controversy, with the arguments in detail on both sides, is set forth in full in Judge Story's Commentaries on the Constitution. from sections 1123 to 1143. He does not directly express his own opinion, but says the "reader must decide for himself on the preponderance of the argument"; but he calls attention to the fact that the point turns on the interpretation of an express grant of a "new and substantive power unknown before in the National Government," and that "here, if ever, the rule of interpretation which requires us to look at the nature of the instrument and the objects of the power, as a national power, in order to expound its meaning, must come into operation."

In view of the established doctrines set forth in the judicial opinions above referred to, the arguments of the narrow constructionists against the right to construct post roads have been demolished. It is impossible to maintain that highways may be constructed and established without the consent of the States and the power of eminent domain be used and granted for that purpose, as a mere incident to the power to regulate commerce, and at the same time to deny that an express grant of a great national power, exclusive in its nature. "to establish post roads" does not mean what it says and does not convey the power to build, maintain, and operate highways for postal purposes.

The people of the United States, acting through the Congress, which has always repudiated this narrow construction, have answered the "pointing out and designating" theory by acquiring land and building a Government postoffice building in the principal towns and cities of every State in the Union.

The Congress, in every charter they have granted for a railroad or a bridge, or in every authorization to a State corporation to build a bridge, have expressly pitched their right so to act on the post-road power in whole or in part. An investigation of these acts of authorization will show that as a rule the postroad power is the only one referred to. Although it was made the sole basis of the act legalizing the Wheeling Bridge, after it had been condemned by a decree of the Supreme Court, yet when that act came up for consideration in Pennsylvania v. Wheeling & Belmont Bridge (18 How.. 421), the court declined to enter into a discussion of the post-road power, on the ground that if that power was insufficient to legalize the bridge the interstate-commerce power was sufficient.

But we are not without judicial determination of this question. The whole subject was discussed in a luminous and exhaustive manner by the supreme court of Kentucky in the case of Dickey v. Turnpike Co. (7 Dana (37 Ky. Kep.), 113), which involved the liability of a United States mail carrier and

contractor to pay tolls for carrying the mails over a State turnpike road. This opinion, rendered by Chief Justice Robertson and concurred in by Thomas Marshall, two of the greatest lawyers ever produced by that State, is too long to quote, but some extracts from it are necessary to the discussion. After pointing out that the Congress of the Confederation had only power to establish post offices between the States, and no power whatever to establish post roads, and that it had, under its post-office power. used and designated the State roads as postal routes, and that the new and larger grant of power in the Constitution, being one made to a National Government for national purposes, must be given some other interpretation than that of merely designating as post roads State roads belonging to, maintained by, and absolutely under the control of the States, a power which the National Government would have under the postoffice power alone, the court said:

For we are clearly of the opinion that both the objects contemplated by the grant of the new power to establish post roads, and the plain constructive import of the grant itself, as made in the Constitution, show that this comprehensive and express power was given, not for authorizing the mere designation and use of State roads as post roads, but for enabling the General Government to make, repair, and keep open such roads in every State, as might under any circumstances be necessary for the most effectual and satisfactory fulfillment of the great national trust of transporting the mails safely, certainly, speedily and punctually, without any necessary dependence on the policy, or will or purse of anyone of the States; and these were in our opinion the only ends for which that express power was given."

Answering the arguments as to the meaning of the word "establish," the court said (p. 125):

"Whether we consider the popular use of the word 'established' or the definition of it by the most approved lexicographers, or the admitted import of it, in the preamble and in the fourth clause of the eighth section of the Federal Constitution, it must be understood to mean, not merely to designate, but to create, erect, build, prepare, fix permanently. Thus, to establish a character, to establish one's self in business, to establish a school, manufactory, or government-all common and appropriate phrases-is not to assume or adopt some preexisting character, or business, or school, or manufactory, or government. To establish, in each of those uses of the phrase, clearly expresses the idea of creating, preparing, founding, or building up. In the same sense, too, it is used and understood in the Bible; thus it is said The Lord by wisdom hath founded the earth; by understanding hath established (prepared) the heavens.' Proverbs, iii, 19.

"Just so, also, is it used and understood in the Federal Constitution. Thus we find in the preamble these words, establish justice'; 'establish this Constitution'; and in the fourth clause of the eighth article, power given to Congress, to establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States.'

"Thus we might present almost endless illustrations of the fact that the popular and philological, sacred and profane, oracular and political import of * establish,' is not to designate, but to found, prepare, make, institute, and confirm.'

"It appears to us, therefore, that to establish post offices and post roads' means ex vi termini, not only the designation and adoption of an existing house and road for a post office and a post road, but also, more comprehensively, the renting or building of a house, and the construction and the reparation of a road, and the appropriation of money for any of those national purposes, whenever any of them shall be deemed useful. And the unquestionable fact that 'to establish' imports to make or create, in every other place where it is used in the Constitution, and especially in the fourth clause of the eighth section, tends persuasively, if not conclusively, to prove that the same words used withont any qualification directly afterwards in another clause of the same Constitution, were understood in the same sense in which they were employed in the antecedent clause, as well as in the preamble. We can perceive no ground for discrimination. The subject matter of the two clauses is not of a nature so essentially different as to authorize a more comprehensive interpretation of the power in the one clause, and a more restrictive construction of it in the other; and the object was the same in both; that is, to place the United States above dependence on anyone of the States, so far as naturalization, and bankruptcy, and post offices, and post roads might be concerned as national objects."