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 meantime, 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: NELSON, J., 18 How. (59 U. S.) 431–2.

Justice MCLEAN denied to Congress the power to authorize a bridge, as the Constitutional power was one of regulation and not construction: (13 How. 54 U. S. 623 and 18 How. 59 U. S. 442, 445); but the majority of the Court necessarily thought otherwise, and their view has remained the accepted construction. It is an inevitable consequence of the exclusiveness of the Constitutional power: supra, pages 420, 466; Justice NELSON, in The Clinton Bridge (1870), 10 Wall. (77 U. S.) 454, 462 ; Justice STRONG, in S. C. v. Ga. (1876), 3 Otto (93) U. S. 4, 13; Chief Justice CHASE, in the captured and abandoned property case of U. S. v. Klein (1872), 13 Wall. (80 U. S.) 128, 146; Justice SWAYNE, in The Chicago & N. W. RR. Co. v. Fuller (1873), 17 Wall. (84 U. S.) 560, 569; Justice MILLER, in Stockdale v. Atlantic Ins. Co. (1874), 20 Wall. (87 U. S.) 323, 332, and Wisconsin v. Duluth (1878), 6 Otto (96 U. S.) 379, 387; Chief Justice WAITE, in Newport & Cin. Bridge Co. v. U. S. (1882), 15 Otto (105 U. S.) 470, 475, 480, and Justice FIELD, dissenting in the same case, page 493; Justice BRADLEY, in the Arthur Kill bridge case of Stockton v. B. & N. Y. RR. Co. (1887), U. S. Cir. Ct., Dis't. N. J., 32 Fed. Repr. 9; S. C. 27 AMER. Law Register 775.

There was another objection to this Act of Congress, founded upon the preference clause of the Ninth Section of the Constitution (supra, page 424); this was denied by the majority of the Court, though advocated by Justice MCLEAN, in his dissenting opinion. Want of space forbids further consideration than will be given in connection with Munn v. Illinois, infra.

In the last stage of the case Justice WAYNE agreed generally with Justice MCLEAN in his dissent, and Justice GRIER to the extent of objecting to the Act of Congress.

The complainants insisted, in all stages of the case, that the compact between Virginia and Kentucky, must rule, for it provided

SEC. 11. Seventh, that the use and navigation of the river Ohio, so far as the territory of the proposed State, or the territory which will remain within the limits of this Commonwealth, lies thereon, shall be free and common to the citizens of the United States, and the respective jurisdictions of this Commonwealth and of the proposed State on the river, as aforesaid, shall be concurrent only with the States which may possess the opposite shores of the said river: (Act of Virginia, passed December 18, 1789; 13 Hening's Stat., 17, 20; made part of Art. VIII. Const. 1792 of Kentucky and Art. VI. 9, Const. 1799, and Art. VIII. 9, Const. 1850.)

In their dissenting opinions, Chief Justice TANEY and Justice DANIEL both called attention (13 How. 54 U. S. 583, 601) to the peculiarly general terms upon which Kentucky had been admitted into the Union. This peculiarity also extended to the declaration of the equality of the State in the Union :

CHAP. IV. An Act declaring the consent of Congress, that a new State be formed within the jurisdiction of the Commonwealth of Virginia, and admitted into this Union by the name of the State of Kentucky.

WHEREAS, the legislature of the Commonwealth of Virginia, by an Act, entitled "An Act concerning the erection of the District of Kentucky into one independent State," passed the eighteenth day of December, one thousand, seven hundred and eighty-nine, have consented that the District of Kentucky, within the jurisdiction of the said Commonwealth, and according to its actual boundaries at the time of passing the Act aforesaid, should be formed into a new State :

AND, WHEREAS, a convention of delegates, chosen by the people of the said District of Kentucky, have petitioned Congress to consent that, on the first day of June, one thousand, seven hundred and ninety-two, the said District should be formed into a new State, and received into the Union, by the name of “The State of Kentucky.”

SECTION 1. Be it enacted, etc., That the Congress doth consent, that the said District of Kentucky, within the jurisdiction of the Commonwealth of Virginia, and according to its actual boundaries on the eighteenth day of December, one thousand, seven hundred and eighty-nine, shall, upon the first day of June, one thousand, seven hundred and ninetytwo, be formed into a new State, separate from and independent of the said Commonwealth of Virginia.

SECTION 2. And be it further enacted and declared, That upon the aforesaid first day of June, one thousand, seven hundred and ninety-two, the said new State, by the name and style of the State of Kentucky, shall be received and admitted into this Union, as a new and entire member of the United States of America.

APPROVED, February 4, 1791: 1 Stat. at Large 189.

This is the whole of the Act of Congress: still, Justice MCLEAN (13 How. 54 U. S. 565), and especially Justice NEL-. SON (18 How. 59 U. S. 433) treated this as an assent of Congress to the compact, following Green v. Biddle (1823), 8 Wheat. (21 U. S.) 1, 85. As this latter case remains unreversed, the opinion rendered by Justice NELSON is doubly interesting for the breadth of its scope:

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 (1801), 1 Cranch (5 U. S.) 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 jurisdiction of this Court, and prevent a review where none was given in the State law existing at the time of the compact: NELSON, J., Pa. v. Bridge Co. (1855), 18 How. 59 U. S. 433.

Justice DANIEL did not proceed so fundamentally, as he was content to find in the compact no Congressional regulation: (13 How. 54 U. S. 601.) Others, as Chief Justice TANEY (Id. 584, citing Pollard v. Hagan) have been content to declare that all States, after the admission to the Union, are on an equal footing. This case and this principle have been repeatedly affirmed in commerce cases, in a line of decisions at present ending with Williamette Bridge Co. v. Hatch, mentioned in the next paragraph.

So far as the principles of Wilson v. Marsh Co., and the Wheeling Bridge Case, could be affected by any compact between the States, or on their admission into the Union, a series of cases, beginning in 1845, and extending to March, 1888, not only confirm the opinion of Justice NELSON, just quoted, that the Constitutional power cannot be thus fettered; but also establish that the power of the States over commercial matters is equally unfettered. The whole subject was elaborately considered and the principal cases cited by Justice BRADLEY in the Williamette Iron Bridge Co. v. Hatch (1888), 125 U. S. 1, with the assent of Chief Justice WAITE and Justices

MILLER, FIELD, HARLAN, MATTHEWS, GRAY, BLATCHFORD and LAMAR. The general principle there laid down, declared that the freedom secured upon the navigable waters in and around the States subject to such compacts, was a political freedom, whereby discrimination against citizens of other States was prevented; but it was not any result of such Congressional regulation and care of those waters as might be assumed at any time.

The case originated in the United States Circuit Court for the District of Oregon, in an injunction proceeding for the abatement of a bridge over the Williamette River in the State of Oregon, erected by the authority of that State alone. The Circuit Judge, SAWYER, granted a preliminary injunction (April 21, 1881 6 Fed. Repr. 780), and, after the testimony was taken, a final injunction (October 22, 1881; See 19 Fed. Repr. 349), because the Act of February 14, 1859, (11 Stat. at Large 383) admitting Oregon into the Union, required freedom in the navigable waters of the State. An appeal was taken but not prosecuted. After the decision in Escanaba Co. v. Chicago, in 1883, a bill of review was filed, but dismissed, upon demurrer, by the District Judge DEADY, with the concurrence of the Circuit Judge (March 3, 1884; 19 Fed. Repr. 347). This last decree was then taken to the Supreme Court and there reversed, with instructions to dismiss the original bill.

This Oregon Case differed from Wilson v. Marsh Co.; Gilman v. Phila. ; The Passaic Bridge Cases (decided in 1857, by Justice GRIER sitting in the United States Circuit Court for the District of New Jersey, 6 AMER. LAW REGISTER 6; s. c. 3 Wall. (70. U S.) 782, appendix), in calling for a decision upon the effect of the terms of the Admission Act, and, in this respect, was precisely the same as the California case of Cardweil v. The American River Bridge Co. (1885), 113 U. S. 205, affirming s. c. (1884), 19 Fed. Repr. 562; the Mississippi case of Hamilton v. Vicksburg S. & P. RR. Co. (1886), 119 U. S. 280; the Illinois case of Escanaba Co. v. Chicago (1883), 107 Id. 678; the case of the Illinois river dam and lock (Huse v. Glover, 1883, U. S. Circ. Ct., N. Dist. Ill., 15 Fed. Repr. 292; affirmed, 1886, 107 U. S. 543); the Michigan case of Sands v. Manistee River Improve. Co. VOL XXXVIII.—31.

(1887), 123 Id. 288; and the judgment in each case was the same: that is, the legality of the bridge was sustained upon the principles mentioned on page 474, supra.

In the direction of Congressional action, this denial by Justice NELSON (supra, page ̊480), was broadly followed by Justice STRONG, with the assent of Chief Justice Waite and all the other Associate Justices-Clifford, Swayne, Miller, DAVID DAVIS, FIELD, BRADLEY and HUNT, in South Carolina v. Georgia (1876), 3 Otto (93 U. S.) 4, 12, where a compact between those States was made the foundation of a bill in equity to restrain the obstruction of one of the channels of the Savannah river. Those States had agreed, April 24, 1787, that “the navigation of the river Savannah" in certain reaches, should "be henceforth equally free to the citizens of both States:" and in 1874, Congress had directed the erection of a crib for the improvement of the harbor of Savannah, which would prevent the free use of one channel. This compact was held to be of no strength against the commerce powers of the United States, conferred by the Constitution of 1789, and this Wheeling Bridge Case was distinctly made the foundation of the opinion.

The Wheeling Bridge Case has been already noticed in connection with Wilson v. Marsh Co., supra, pages 446, 447, as differing in principle; though Chief Justice TANEY and Justice Daniel thought otherwise, and dissented: (13 How. 54 U. S. 580, 585, 599.)

That difference of principle can be readily seen by applying to the dam and to the bridge, the modified rule of Cooley v. Port Wardens, supra, page 466. Both affected navigable water, under State legislation, in the absence of particular Congres. sional action prohibiting the obstruction, though there were general laws of the United States regulating vessels. While a bridge might not, and this particular bridge, when sufficiently elevated would not be incompatible with the free navigation of the river; still the difference between the two cases lies in the geographical position of the water. If within a State, and purely internal, the State has entire control: MCLEAN, J., 13 How. 54 U. S. 566 and 18 How. 59 U. S. 432; Veazie v. Moor (1852), 14 How. (55 U. S.) 568; and the Chestnut Street Bridge