Legislative Action.—Apart from the postoffice, problems of road construction and internal improvements, by the necessities of development, almost immediately confronted the new nation, which scanned the delegated powers in the Federal Constitution, and not finding any specific authorization of congressional action, asserted the right upon several clauses, among them being the one to establish postroads. By 1793 there were only one hundred and ninety-five postoffices throughout the country179 and communication was in a deplorable condition, what roads there were being little more than paths and quite impassable for wheeled vehicles. Yet communication was of the utmost importance, and especially was this true in respect to the West, it being thought that commercial and political development, if not actual retention, was impossible without easier means of access. Some road construction had been accomplished by private initiative with state aid, but the problem was not really attacked, and when in 1792 Congress established a postroute between Richmond, Va., and Danville, Ky., and later one between Philadelphia, Pittsburgh, and Louisville,180 the West became jealous of the facilities accorded the East. This feeling was encouraged by the Atlantic States being permitted by Congress to levy tonnage duties in order to effect the improvement of rivers and harbors.181 Appropriations had also been made by Congress for lighthouses, etc., and soon the demands of the Western States were too strong to be resisted. In 1806 Congress was forced to take definite action.182
The constitutional problem, however, had for some time engaged the attention of the leading statesmen; all admitted the necessity for federal aid, but the power of Congress was seriously questioned. In his first annual address Washington urged the encouragement of “intercourse between the distant parts of our country by a due attention to the postoffice and postroads,”183 and repeated this recommendation in later addresses.184 Chief Justice Jay had in 1790 given Washington his opinion, certainly entitled to great weight, that “the Congress have power to establish postroads. This would be nugatory unless it implied a power to repair these roads themselves, or compel others to do it. The former seems to be the more natural construction. Possibly the turnpike plan might gradually and usefully be introduced.”185
But there were also many who held to a stricter construction of the Constitution. Jefferson was doubtful. Writing to Madison in 1796 he asked: “Does the power to establish postroads given you by Congress, mean that you shall make the roads, or only select from those already made those on which there shall be a post?” The one construction would give Congress enormous powers; the other, if inadequate, could be referred to the states for action.186
The question of federal power was first definitely raised in 1806 when the demands of the Western States became irresistible and Congress began the construction of the Cumberland Road, the famous highway which was to figure in the economic and political history of the United States for the next half century, and to arouse acute discussion as to the meaning of the postal clause.187 Ohio was admitted as a state in 1802 and the opportunity was seized to make a mutually advantageous arrangement by which the United States would retain the same rights as to the public domain which it possessed while Ohio was yet a territory (control of lands as yet unpaid-for and suspension of state taxes), and on the other hand, as a quid pro quo, a percentage of the proceeds derived from the sale of certain of the lands, should be applied to defray the cost of road construction under the auspices of the general government. Such an arrangement was first proposed by Gallatin188 who urged “that one tenth part of the net proceeds of the lands hereafter sold by Congress shall, after deducting all expenses incident to the same, be applied towards laying out and making turnpike roads ... under the authority of Congress, with the consent of the several states through which the same shall pass.”189
The next action came three years later when Congress authorized the President to appoint a commission to lay out the road;190 consent to the construction had already been given by the legislatures of Maryland and Virginia, but not by that of Pennsylvania.191 Maryland’s authorization for the improvement of postroads within the state was given in 1803 and contained a limitation to the effect that Congress was not thereby given the power “to cut down or use the timber or other material of any person or persons against his, her, or their consent,”192—an explicit denial of the right of eminent domain in connection with the postal power.
In January, 1807, Jefferson received the report of the commission appointed to locate the road, but the President withheld either acceptance or disapproval until he should receive “full consent to a free choice of route through the whole distance.”193 When Pennsylvania acted, its legislature detailed the powers which the United States might exercise, and stipulated that persons whose property should be taken must be given compensation; but this was sufficient for the “full consent” which Jefferson demanded before the undertaking could be begun.
Even with these limitations congressional action as to postroads had not been taken without some doubts as to its constitutionality; yet the demands for federal aid were so great and the responses so meagre that serious objection was not made. In spite of the fact that he had sanctioned appropriations for the improvement of a canal in Louisiana and a road from the Georgia frontier to New Orleans,194 Jefferson thought that the postal clause did not grant adequate power for the construction of roads by Congress.195 In his sixth annual message (after the passage of the Cumberland Road bill) he urged that the treasury’s surplus should be applied “to the great purposes of the public education, roads, canals, and such other objects of public improvement as it may be thought proper to add to the constitutional enumeration of federal powers,” but supposed that a constitutional amendment would be necessary.196 Two years later the growing surplus led him to return to the same theme. “Shall the revenue be reduced?” he asked. “Or shall it rather be appropriated to the improvement of roads, canals, rivers, education, and other great foundations of prosperity and union, under the powers which Congress may already possess, or such amendment of the Constitution as may be approved by the states. While uncertain of the course of things the time may be advantageously employed in obtaining the powers necessary for a system of improvement should that be thought best.”197
It was not, however, until during Madison’s administration that the question was to become an acute one. Under Washington and Adams there had been no appropriations for roads; under Jefferson Congress had given money for the Cumberland Road, for a route from the frontier of Georgia to New Orleans and a canal in Louisiana.198 But under Madison eleven acts were passed by Congress199 and these caused an exhaustive and sometimes acrimonious discussion of the constitutional principles involved, with the intervention of the President through admonitory messages and one veto, on the day before he was to give up his office.
Madison’s opinion as to whether the Constitution had given Congress the power to undertake the construction of roads seems not to have been absolutely consistent. Writing in The Federalist, he had urged as one of the advantages that the adoption of the Constitution would insure the fact that “intercourse throughout the union will be facilitated by new improvements. Roads will everywhere be shortened, and kept in better order; accommodations for travellers will be multiplied and meliorated;... The communication between the western and Atlantic districts, and between different parts of each, will be rendered more and more easy by those numerous canals with which the beneficence of nature has intersected our country, and which art finds it so little difficult to connect and complete.”200
On February 5, 1796, in the House, Madison offered a resolution authorizing the President to have made a survey of the postroad from Maine to Georgia, the expense being borne by the United States.201 Two good effects, said Madison, would accrue; “the shortest route from one place to another would be determined upon, and persons, having a certainty of the stability of the roads, would not hesitate to make improvements on them.” It was to be the “commencement of an extensive work”; and during his administration Madison approved acts which appropriated over $500,000, most of it for the Cumberland Road.202
There had been, it is true, an intimation of a changed attitude when, in his seventh annual message (December 5, 1815), although strongly recommending the construction of roads and canals under national authority, he called it “a happy reflection that any defect of constitutional authority which may be encountered can be supplied in a mode which the Constitution itself has providently pointed out.”203 A year later he asked Congress to exercise its existing powers, and, if necessary, to resort “to the prescribed mode of enlarging them, in order to effectuate a comprehensive system of roads and canals, such as will have the effect of drawing more closely together every part of our country.”204
Madison’s decisive stand, however, was to be taken on the so-called “bonus bill,” the purpose of which was to provide a permanent fund for road construction. In the famous report which Gallatin had prepared for the Senate (April 6, 1808), he had denied any right of eminent domain inhering in the United States and had declared that no road or canal could be opened without the consent of the states concerned. This fact, Gallatin argued, necessarily controlled the manner of expenditure (in the absence of constitutional amendment). He suggested two expedients: congressional undertakings with the consent of the states, or subscriptions by Congress to the shares of companies incorporated for the purpose of building highways.205 Concerning Gallatin’s second alternative, no action was taken for two years. In 1810, however, a Senate committee reported favorably a blanket bill which would make the government owner of one half the stock in any corporation formed to carry out the projects recommended by Gallatin in his report.206 But the theory of the “bonus bill” was radically different.
It was reported in the House by a special committee of which Calhoun was chairman, and set aside the $1,500,000 bonus which was to be paid by the United States Bank for its charter, together with the dividend arising from the stock held by the government; there would thus be provided a permanent fund for the construction of roads and canals.
The chief argument in support of the bill was made by Calhoun.207 He expressed no opinion as to the validity of the objection that Congress had not the power to cut a road through a state without its consent. The proposed bill did not raise that question. But, said Calhoun, “the Constitution gives to Congress the power to establish postoffices and postroads. I know that the interpretation usually given to these words confines our powers to that of designating only the postroads; but it seems to me that the word ‘establish’ comprehends something more,” it would seem to give Congress the right to construct. Calhoun’s argument is not a closely reasoned one and does not carry conviction in all respects; nevertheless, his main point upon which he lays chief weight,—that the appropriation of money by Congress is not confined to the furtherance of those powers enumerated in the Constitution,—was well taken.208
The bill was passed by Congress,209 not, however, without many doubts being expressed as to its constitutionality,210 and went to President Madison at the very close of his administration. Madison did not resort to a pocket veto and on March 3, 1817, sent a message to Congress giving the grounds for his objections to the measure. He held that the act could not be justified under the commerce or general welfare clauses, but made no use of the postal power as a possible, if not adequate source of authority. He said:
“If a general power to construct roads and canals, and to improve the navigation of water courses, with the train of powers incident thereto, be not possessed by Congress, the assent of the states in the mode provided in the bill cannot confer the power. The only cases in which the consent and cession of particular states can extend the power of Congress are those specified and provided for in the Constitution.”211
In this message Madison did not clearly suggest a distinction between the simple power to appropriate, to appropriate and construct, with the consent of the states, and to construct against the will of local jurisdictions. Before reaching the conclusion quoted above, he had used this ambiguous language: “A restriction of the power ‘to provide for the common defense and general welfare’ to cases which are to be provided for by the expenditure of money would still leave within the legislative power of Congress all the great and important measures of government, money being the ordinary and necessary means of carrying them into execution.”212 Madison declared later that his veto contemplated the appropriation as well as construction; yet during his tenure he sanctioned measures providing funds for various roads.213
This distinction which Calhoun pointed out, and concerning which, in his message at least, Madison was vague, was to be stressed by Monroe and by Congress in the exhaustive debates upon the nature and extent of the power that the federal government possessed.214 Monroe did not delay in making known his attitude and went directly to the point in his first annual message when he said:
“Disregarding early impressions, I have bestowed on the subject all the deliberation which its great importance and a just sense of my duty required, and the result is, a settled conviction, in my mind, that Congress do not possess the right.... In communicating this result, I cannot resist the obligation which I feel, to suggest to Congress the propriety of recommending to the states the adoption of an amendment to the Constitution, which shall give Congress the right in question.”215
This portion of President Monroe’s message was referred to a special committee in the House of Representatives which reported on December 15, 1817, in an able document.216 The problem, said the committee, involved “a great constitutional question on the one hand,” and was “intimately connected on the other, with the improvement, the prosperity, the union, and the happiness of the United States.” It was argued, in brief, that Congress had the power: “1. To lay out, improve, and construct postroads through the several states, with the assent of the respective states. 2. To open, construct, and improve military roads through the several states, with the assent of the respective states. 3. To cut canals through the several states, with their assent....”
Such powers were not based, it was contended, on a liberal construction of the Constitution, nor were they dangerous in tendency and capable of working an injury to the states, for there was no recognition of a right of eminent domain or of congressional supremacy in respect to jurisdiction. Considering specifically the extent of the postal power the committee said:
“That Congress, with the assent of the states respectively, may construct and improve their postroads, under the power ‘to establish postoffices and postroads’ seems to be manifest both from the nature of things and from analogous constructions of the Constitution. It has been contended, indeed, that the word establish, in this clause of the instrument, comprehends nothing more than a mere designation of postroads. But if this be true, the important powers conferred on the general government in relation to the postoffice, might be rendered in a great measure inefficient and impracticable.... If the power to establish confers only the authority to designate, Congress can have no right either to keep a ferry over a deep and rapid river for the transportation of the mails, or to compel the owners of a ferry to perform that service; and yet our laws contain an act, acquiesced in for more than twenty years, imposing penalties on ferrymen for detaining the mail and on other persons for retarding or obstructing its passage. It would be difficult to discover how this power of imposing penalties can be supported, either as an original or accessory power except upon principles of more liberal construction than those now advanced....
“The authority which is conferred by the Constitution to make all laws which shall be ‘necessary and proper’ for carrying into execution the enumerated powers, is believed to vest in the general government all the means which are essential to the complete enjoyment of the privilege of ‘establishing postoffices and postroads!’ Even without this clause of the Constitution the same principle would have to be applied to its construction, since according to common understanding the grant of a power implies a grant of whatever is necessary to its enjoyment....
“It is indeed from the operation of these words ‘necessary and proper’ in the clause of the Constitution which grants accessory powers, that the ‘assent of the respective states’ is conceived a prerequisite to the improvement even of postroads. For, however ‘necessary’ such improvements might be, it might be questioned how far an interference with the state jurisdiction over its soil, against its will, might be ‘proper,’ Nor is this instance of an imperfect right in the general government without an analogy in the Constitution; the power of exercising jurisdiction over forts, magazines, arsenals, and dockyards, depending upon previous purchase by the United States with the consent of the states.
“Admitting then, that the Constitution confers only a right of way, and that the rights of soil and jurisdiction remain exclusively with the states respectively, yet there seems to be no sound objection to the improvement of roads with their assent.”
In the long debate which followed this report upon the President’s message, the opinions expressed veered between ultra-conservative and ultra-liberal positions. A middle ground was taken by Clay, whose speeches are perhaps the best on the subject.217 He was a stanch supporter of the committee’s report, contending “that the power to construct postroads is expressly granted in the power to establish postroads.” “If it be,” he said, “there is an end to the controversy.... To show that the power is expressly granted, I might safely appeal to the arguments already used to prove that the word establish, in this case, can mean only one thing,—the right of making.” According to Clay, “to establish justice” as used in the preamble of the Constitution, did not compel Congress to adopt the systems then existing. “Establishment means in the preamble, as in other cases, construction, formation, creation.”
When it is considered that “under the old Articles of Confederation, Congress had over the subject of postroads as much power as gentlemen allow to the existing government, that it was the general scope and spirit of the new Constitution to enlarge the powers of the general government, and that, in fact, in this very clause, the power to establish postroads is superadded to the power to establish postoffices, which was alone possessed by the former government,” the argument on this point is successfully maintained.
Clay contended that “it was certainly no objection to the power that these roads might also be used for other purposes. It was rather a recommendation that other objects, beneficial to the people, might be thus obtained, though not within the words of the Constitution.” For an illustration he pointed to the encouragement of manufactures under the power to levy taxes. Postroads could be devoted to “other purposes connected with the good of society.”218 Construction completed, Clay argued, Congress had a jurisdiction “concurrent with the states, over the road, for the purpose of preserving it, but for no other purpose. In regard to all matters occurring on the road, whether of crime, or contract, etc., or any object of jurisdiction unconnected with the preservation of the road, there remained to the states exclusive jurisdiction.”219
At the conclusion of the debate several resolutions were offered and voted upon, only one receiving a majority. It recited “that Congress have power, under the Constitution, to appropriate money for the construction of postroads, military and other roads, and of canals and for the improvement of water courses.” In this matter Congress sanctioned the distinction between appropriation and construction. Three other resolutions were to the effect that Congress could build, generally, post and military roads; roads and canals necessary “for commerce between the states,” and canals for “military purposes.” These avowals of power, although they stated slightly different propositions, all intimated that the consent of the states would not be required, since each contained a proviso that private property should not be taken for public use without compensation,—a liberal attitude for this period of constitutional interpretation.220 All of the resolutions, save the first, failed of passage by small majorities.
The consideration of Monroe’s message in the Senate was very favorable to the President; there was little disposition to criticize him for having announced his views prematurely,—possibly with the intention of warning Congress,—and no attempt was made to ascertain directly the Senate’s opinion on the constitutional powers of Congress. Indirectly, however, the Senate asserted its opinion through passing on a proposed amendment to the Constitution which was urged in response to Monroe’s intimation that this was the proper method of dealing with the matter.
From time to time several proposed amendments to the Constitution had been introduced, and these, unlike others advocated during “the same period of conflict between the broad and strict constructionists,”221 aimed to increase the powers of Congress, and to take away the taint of usurpation which, at least in the minds of many, was considered as attaching to the road projects either under way or seriously contemplated. Amendments empowering Congress to construct roads and canals with the consent of the states were suggested in 1813 and 1814, and on December 9, 1817, following the advice of Monroe’s message, Senator Barbour introduced in the Senate such a resolution which made state consent necessary and provided that the appropriations should be distributed “in the ratio of representation which each state shall have in the most numerous branch of the national legislature. But the portion of any state may be applied to the purpose aforesaid in any other state.” When the resolution was reported, it was indefinitely postponed by a vote of 22 to 9.222 This result showed that there was slight chance of passing any general road construction bill over the president’s veto, although some of the votes against the resolution were cast on the ground that Congress already had the power.
But the advocates of road construction were not to be denied. In compliance with a resolution, Calhoun, as secretary of war, submitted to the House of Representatives on January 14, 1819, a comprehensive report on roads and canals, the necessity for them, and a scheme for construction. Calhoun, however, “thought it improper under the resolution of the House to discuss the constitutional question.”223
The report was laid on the table224 and although in January, 1822, the House Committee favored surveys for canals from Boston south along the Atlantic coast, and in the middle west, and a road from Washington to New Orleans, nothing became law with the exception of small appropriations for the Cumberland Road.225 It was, however, an act for the preservation and repair of this road, passed by the House on April 29, 1822, and returned by the President on May 4, which caused him to follow his veto message with a comprehensive statement of the “Views of the President of the United States on the subject of internal improvements,”226 the most elaborate constitutional discussion ever sent to the Capitol from the White House.
Monroe was of the opinion that Congress had the right to make appropriations for roads, with the consent of the states through which they were to pass, but that it did not have sovereign and jurisdictional rights to construct roads or to repair and keep them free from obstructions. This doctrine Von Holst calls a “quibble on words,” but “it has become an established one that Congress may appropriate money in aid of matters which the federal government is not constitutionally able to administer and regulate,” and in this respect, therefore, Monroe was correct.227
The advocates of construction and of efficient jurisdiction after the roads had been made, derived the authority of Congress from several clauses in the Constitution, among them the grant “to establish postoffices and postroads.” To this clause, Monroe gave an exhaustive treatment.
“What is the just import of these words, and the extent of the grant?” he asked. “The word ‘establish’ is the ruling term; ‘postoffices and postroads’ are the subjects, on which it acts. The question, therefore, is, what power is granted by that word? The sense, in which our words are commonly used, is that, in which they are to be understood in all transactions between public bodies and individuals. The intention of the parties is to prevail, and there is no better way of ascertaining it, than by giving to the terms used their ordinary import.”
Among enlightened citizens, Monroe went on, there would be no difference of opinion; “all of them would answer, that a power was thereby given to Congress to fix on the towns, court-houses, and other places, throughout our Union, at which there should be postoffices; the routes by which the mails should be carried from one postoffice to another, so as to diffuse intelligence as extensively, and to make the institution as useful, as possible; to fix the postage to be paid on every letter and packet thus carried to support the establishment; and to protect the postoffices and mails from robbery, by punishing those, who should commit the offence. The idea of a right to lay off the roads of the United States, on a general scale of improvement; to take the soil from the proprietor by force; to establish turnpikes and tolls, and to punish offenders in the manner stated above, would never occur to any such person. The use of the existing road, by the stage, mail carrier, or postboy, in passing over it, as others do, is all that would be thought of; the jurisdiction and soil remaining to the state, with a right in the state, or those authorized by its legislature, to change the road at pleasure.”
This interpretation, the message went on to declare, was supported by the modification of the postal grant in the Articles of Confederation, as it appeared in the Constitution. “Had it been intended to convey a more enlarged power in the Constitution,” said Monroe, “than had been granted in the Confederation, surely the same controlling term [establish] would not have been used; or other words would have been added, to show such intention, and to mark the extent, to which the power should be carried.... It would be absurd to say, that, by omitting from the Constitution any portion of the phraseology, which was deemed important in the Confederation, the import of that term was enlarged, and with it the powers of the Constitution, in a proportional degree, beyond what they were in the Confederation. The right to exact postage and to protect the postoffices and mails from robbery, by punishing the offenders, may fairly be considered, as incidents to the grant, since, without it, the object of the grant might be defeated. Whatever is absolutely necessary to the accomplishment of the object of the grant, though not specified, may fairly be considered as included in it. Beyond this the doctrine of incidental power cannot be carried.” Monroe then enters upon a consideration of what the colonists and framers of the Constitution understood to be comprehended in the postal power, and concludes:
“If the United States possessed the power contended for under this grant, might they not, in adopting the roads of the individual states for the carriage of the mail, as has been done, assume jurisdiction over them, and preclude a right to interfere with or alter them? Might they not establish turnpikes, and exercise all the other acts of sovereignty, above stated, over such roads, necessary to protect them from injury, and defray the expense of repairing them? Surely, if the right exists, these consequences necessarily followed, as soon as the road was established. The absurdity of such a pretension must be apparent to all, who examine it. In this way, a large portion of the territory of every state might be taken from it; for there is scarcely a road in any state, which will not be used for the transportation of the mail. A new field for legislation and internal government would thus be opened.”228
While the President’s attitude stopped Congress from actually constructing roads, frequent appropriations were granted to be applied under the direction of the states. Perhaps the most important of these was in the act passed in 1824 to have surveys made of such roads and canals as in the opinion of the President were of value for military, commercial and postal purposes.229
Conflict over the constitutional problem, and the distinction between appropriation and construction, were, however, abandoned by John Quincy Adams who was a stanch advocate of federal aid,230 but the discussion was revived by Jackson, who vetoed six bills,231 the most important of which provided for a government subscription of $150,000 to purchase stock in the Maysville, Washington, Paris and Lexington Turnpike Company, a Kentucky corporation. The action of the President did not come as a surprise for in his first annual message he had told Congress that the mode of internal improvements, “hitherto adopted, has by many of our fellow citizens been deprecated as an infraction of the constitution, while by others it has been viewed as inexpedient. All feel that it has been employed at the expense of harmony in the legislative councils.”232
Furthermore, Jackson thoroughly disapproved of the government’s becoming a minority stockholder in a semi-private enterprise which would receive profits through the payment of tolls. He held it to be not only “highly expedient, but indispensably necessary, that a previous amendment of the Constitution, delegating the necessary power and defining and restricting its exercise with reference to the sovereignty of the states, should be made.”233 Otherwise there would be a continuance of congressional uncertainty as to the existence of the power. He considered the general question in two aspects: (1) as “to the power of making internal improvements within the limits of a state, with the right of territorial jurisdiction, sufficient at least for their preservation and use” and (2) as to the power of “appropriating money in aid of such works when carried on by a state or by a company in virtue of state authority, surrendering the claim of jurisdiction.”234 He believed Congress could appropriate directly for national, not local, purposes; the other power he firmly denied.
After Jackson there were other vetoes of internal improvement bills, but they were based largely upon the distinction between national and local objects. Road construction, moreover, gave way to river and harbor development, and there was little, if any, discussion of the meaning of the postal clause. Congress asserted a broad power over postroads designated by it, and there was little objection; on the few occasions that the matter came before the courts, the power was sustained. In 1862 Congress gave the President authority when in his judgment the public safety required its exercise, to take possession of all railroads and telegraphs and to place their employees under military control, so that the lines would be “considered as a postroad and a part of the military establishment of the United States, subject to all the rules and restrictions imposed by the rules and articles of war.”235 Any interference with the exercise of this authority was made a crime. Compensation to the railroad and telegraph companies was to be fixed by three commissioners, subject to approval by Congress. This authorization, however, was based upon the war, as well as on the postal power, and when Congress came to charter railroads and bridge companies, it based its right largely on the commerce clause, with the postal and war grants as ancillary sources.236
Recent evidences of congressional action, based upon the postroads clause, are to be seen in the good roads movement, and in 1912 Congress appropriated five hundred thousand dollars for “improving the condition of roads to be selected by them [the secretary of agriculture and the postmaster general] over which rural delivery is or may hereafter be established, such improvement to be for the purpose of ascertaining the increase in the territory which could be served by each carrier as a result of such improvement, the possible increase of the number of delivery days in each year,” etc. But it is provided that the state in which the improvements are to be made “shall furnish double the amount of money for the improvement of the road or roads so selected.”237 The results of the scheme have not been very satisfactory,238 but proposals are made for other, and more extensive federal undertakings. Finally it is possible, in some measure at least, to base upon the postal power the Act of March 12, 1914, which authorizes “the president of the United States to locate, construct and operate railroads in the Territory of Alaska.”239
Judicial Determinations.—The power of Congress to construct roads and canals did not, in the early days of its assertion and denial, come before the Supreme Court of the United States; in fact, the question has never been directly passed upon by the Court, and long before it was incidentally considered, largely in the cases upholding the right of eminent domain and its delegation to railroad corporations with federal charters, the constitutional problem, as Madison said in rejecting the bank bill of 1814, was “precluded by repeated recognitions, under varied circumstances, of the validity of the exercise of a power to establish a bank by Congress, in acts of the legislative, executive, and judicial branches of the government, accompanied by indications in different modes of a concurrence of the general will of the nation.”240 Such a test, however, is by no means adequate.
For a time the question of congressional power was acute, and its existence was not acknowledged, even by some who cannot be called strict constructionists. The opinions held by Congress and the executive have already been reviewed; but Monroe’s elaborate veto message on the “gate bill” gave the Supreme Court justices an opportunity to express their views informally, for he sent a copy of his paper to each member of the Court. In his reply Justice Johnson intimated that the doctrine of McCulloch v. Maryland241 committed the Court to upholding a power in Congress to construct roads for military and postal purposes; Marshall considered the question one “on which many divide in opinion, but all will admit that your views are profound and that you have thought much on the subject.” Story was noncommittal, and thus one of the few attempts to get an informal expression of opinion from the Supreme Court was a failure.242
It is difficult to see how, logically, there can be any doubt as to a very wide authority in Congress. A fair interpretation of the word “establish” comprehends “construction” or at least something more than “designation”; otherwise it would have been futile for the Articles of Confederation and the Constitution to give Congress powers under which it has undertaken to “establish” navy hospitals, trading houses with the Indians, inferior courts, rules of capture, and regulations of trade. The second portion of the postal clause did not appear in the Articles of Confederation, and the grant in the Constitution was absolute, with no limitations as to state action. A restricted interpretation, applied to the first part of the clause, as demanded by consistency, would give Congress authority to provide postoffices, but without mails, carriers, routes, secure transmission, or revenue. That Congress in fact had the power to construct roads has been made evident, I think, by the debates on the various measures that were proposed.
But as has been seen in the legislation concerning the Cumberland Road, the consent of the states was required before construction could be started, and limitations were imposed on the federal power. So also, it was at first maintained that Congress did not have the right to keep the roads open, in repair, and to impose tolls for their use, whether they had been constructed under national authority or had simply been designated as mail routes. For example, the Act of March 26, 1804, provided “that whenever it shall be made to appear to the satisfaction of the postmaster general that any road established by this or any former act, as a postroad, is obstructed by fences, gates or bars, other than those lawfully used on turnpike roads, to collect their toll, and not kept in good repair with proper bridges and ferries, where the same may be necessary it shall be the duty of the postmaster general to report the same to Congress, with such information as can be obtained, to enable Congress to establish some other road, instead of it, in the same main direction.”243
In 1812 Gallatin made a report to the President on the Cumberland Road and referred to the necessity of levying tolls sufficient to keep certain portions in repair; but this, he said, could be done “only under the authority of the state of Maryland.”244 The next year the superintendent of the road reported to Gallatin that he expected the Maryland legislature to pass a law, “authorizing the President to receive toll, for the purpose of repairing the road, and likewise against abuses which are common on all roads of the kind to prevent which laws have been found necessary.”245 Secretary Dallas was of the same opinion, and in 1815 told the House Committee on the Cumberland Road that Congress had no authority to make provision for tolls and the prevention of abuses. “They can only proceed,” he said, “from the legislatures of the states through which the road passes, and consist of an authority for the erection of toll gates, and the collection of a toll sufficient to defray the expenses of repair, and the infliction of penalties upon persons who shall cut, break up, or otherwise destroy or injure the road.”246
The House Committee, however, held that since a compact had been entered into between the federal government and the states, Congress had the right to legislate in order to carry out its undertaking to open and maintain the road. “If the right to punish these offences belongs to the national government,” said the committee, “it may be effected without the passage of any law, by an indictment or information in the courts of the United States, or by enacting statutory provisions fixing the penalties, it being a fundamental right of the judiciary inherent in every government to punish all offences against the laws passed in pursuance of a delegated power independently of express legislative sanctions.”247
After President Monroe’s veto, the Cumberland Road became sadly in need of repairs, and again Congress considered the question of jurisdiction,—whether the right to preserve was incidental to the right to establish. The states passed laws to protect the road against injuries and appropriated money for improvements, but the sums provided were inadequate248 and soon a disposition was shown to consent to the assumption by Congress of complete control over the Road. The Pennsylvania legislature passed a resolution (1828) giving the federal government permission to collect tolls within the commonwealth, with the reservation that the whole amount collected should be devoted to repairs.249
Monroe had desired cooperation between the national and local authorities. In his message of December 2, 1823, he urged “an arrangement with the several states through which the Road passes, to establish tolls, each within its limits, for the purpose of defraying the expense of future repairs and providing also by suitable penalties for its protection against future injuries.”250 This portion of the message was considered by the House Committee on Roads and Canals, whose opinion it was that Congress had itself the right to charge tolls and punish offences; the committee could not approve of an arrangement by which the states might charge tolls: uniformity and one jurisdiction were eminently desirable.251 Yet in 1828–1829 when the whole question of control was again threshed out in Congress, any federal right, either absolutely or by virtue of state permission, to charge tolls, was still denied. Congress simply appropriated $100,000 for the repair of the road; Monroe’s distinction between appropriation and control was adhered to.252
The states, moreover, still asserted plenary authority. In 1833 the Maryland legislature gave the President authority to make a change in the Cumberland Road253 and in 1834 Illinois consented to the extension of the national road “through the territory of said state so as to cross the Mississippi River at the town of Alton and no other point.”254 For various reasons the road was not constructed, but Congress was several times memorialized to take the desired action255 and in 1844 the Senate Committee on Roads and Canals, having under consideration a bill to extend the highway to Alton, made a favorable recommendation and pointed out the fact that the consent of the states affected was a necessary preliminary before actual construction could begin.
“The right of the state of Illinois to give or withhold her assent to the construction of the road within her limits,” said the committee’s report, “cannot be questioned in view of the course pursued by the general government to obtain the consent of other states.”256 Reports to identical effect were made during the second session of the 28th Congress (January 15, 1845) and the second session of the 29th Congress (January 16, 1847),257 the second report being accompanied by a strong letter from Senator Semple of Illinois, who pointed out that his state would never consent to any route other than the one which had been recommended in 1834.
Meanwhile definitive action had been taken during Jackson’s administration, as a result of his determined opposition to internal improvements and denial of federal authority to construct roads. “Annual appropriations for the repair of the road were being made, but this method could not continue indefinitely, inasmuch as tolls could not be levied by the United States for repairs. Because of the lack of jurisdiction, a resort to state control, with the consent of Congress became an absolute necessity.”258 Acts of the Pennsylvania, Maryland, Ohio and Virginia legislatures were, therefore, passed, and congressional assent was given to the erection of toll gates and repairs by the states, with the provision in the compact that no charge should be made for the passage of United States mails, troops or property. In 1879 the control of the states was made complete and unreserved. Yet the original acts of surrender recognized “either a proprietary or jurisdictional interest, or both, in the United States, as follows: (1) something was surrendered; (2) surrender was made by ‘compacts’ which regulated the number of toll gates and the rates of toll; (3) provision was made for the United States to resume its proprietary or jurisdictional interest at pleasure.”259
But before the legal questions arising out of this surrender were passed upon by the Supreme Court of the United States, the whole problem of congressional power and the rights of the states was carefully considered by the Kentucky Court of Appeals, whose opinion,260 treating points primae impressionis, is remarkably well considered. The particular question to be decided was whether a contractor for carrying the mail between points within the state on a turnpike road had any right of exemption from the tolls, exacted under the company’s charter from other persons for the transit of their horses and stages. The court held that the tolls should be paid.
It recognized that the postal power “being necessarily exclusive, plenary and supreme, no state can constitutionally do, or authorize to be done, any act which may frustrate, counteract, or impair the proper and effectual exercise of it by national authority. From these axiomatic truths it follows as a plain corollary that the general government has the right to transport the national mail whenever and wherever the national Congress, in the constitutional exercise of its delegated power over postoffices and postroads shall have prescribed.” But, said the court, this power was not unlimited, and could not appropriate private property for public use without just compensation. If the turnpike was considered as private property in view of the company’s franchise, tolls should be paid by the mail contractor; considering the turnpike as a public state road, the court reached the same conclusion, which, it pointed out, would not have been modified had Congress seen fit to designate this particular road as a mail route. Anyone doubting the logic of this, the court said, “should also doubt whether his own house might not be taken and used as a postoffice without his consent and without any compensation.”
The court then proceeded, obiter, to explain its understanding of the postroads power. According to reason and philology, the import of “establish” was declared to be, not merely “designate” but “found, prepare, make, institute and confirm.” “So too,” the court held, “as roads and good roads are indispensable to the effectual establishment of postroads, the supreme power to ‘establish postroads’ necessarily includes the power to make, repair and preserve such roads as may be suitable....” Congress therefore was considered to have the power to open roads and build bridges when necessary; there was no question of constitutional right, simply of expediency.261
“Unless Congress shall elect to exercise its right of eminent domain, and buy a state road, or make one, or help to make or repair it, the constitution gives no authority to use it as a postroad without the consent of the state or the owner, without making just compensation for the use.” Here was acknowledgment of an authority more far reaching than even the more liberal contemporary opinion gave to Congress; the court recognized a right of eminent domain to take over a road, but until this was exercised, the mails were subject to tolls.
When, seven years later, the Supreme Court of the United States passed upon the toll question which arose under the compact ceding the Cumberland Road to the states,262 there was the same opportunity to make a definite pronouncement as to the authority of Congress to engage in road construction; in its opinion, however, the Court made no use of this opportunity, although a dissentient justice voiced his views that the power of Congress was not so great as that asserted in the Dickey case.
The act of the Ohio legislature in taking over the Cumberland Road specifically provided that tolls should not be collected for the passage of the mails; but the Pennsylvania law was more general, declaring that “no toll shall be received or collected for the passage of any wagon or carriage laden with the property of the United States....” The Maryland act was precisely the same as this, while the Virginia statute followed the Ohio law. In 1836, however, Pennsylvania declared that the exemption should be only in proportion to the amount of property belonging to the United States, and “that in all cases of wagons, carriages, stages or other modes of conveyance, carrying the United States mail, with passengers or goods, such wagon, stage, or other mode of conveyance shall pay half-toll upon such modes of conveyance.”
The validity of this legislation was the question presented to the Supreme Court, and in its decision the Court could well have entered upon a discussion of the power of Congress in the premises. But Chief Justice Taney, who delivered the opinion, was at pains to point out, “that the constitutional power of the general government to construct this road is not involved in the case before us; nor is the court called upon to express any opinion on that subject; nor to inquire what were the rights of the United States in the road previous to the compacts hereinbefore mentioned.”
Taney simply held, therefore, that “the United States have unquestionably a property in the mails”; that this property was exempted from the payment of tolls by the terms of the compact, but this exemption should not apply to other property in the same vehicle, nor to any person unless in the service of the United States. Finally, in answer to the objection that small parcels might be sent by a number of conveyances to relieve them from the payment of tolls, Taney held that “the United States cannot claim an exemption for more carriages than are necessary for the safe, speedy, and convenient conveyance of the mail.”
From Taney’s judgment, Justice McLean dissented, primarily on the ground that “the mail of the United States is not the property of the United States,” and that charging tolls for its passage was not in violation of the compact. Justice Daniels, however, objected upon different grounds, and declared that it was necessary to consider “the operation and effect of the compact insisted upon as controlled and limited by the powers of both contracting parties.”
“I hold then,” he declared, “that neither Congress nor the federal government in the exercise 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 states. That the territory and soil of the several states appertain to them by title paramount to the Constitution, and cannot be taken, save with the exception of those portions which might be ceded for the seat of the federal government and for sites permitted to be purchased for forts, arsenals, dockyards, 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 of the Constitution.
“I believe that the authority vested in Congress by the Constitution to establish postroads, confers no right to open new roads, but implies nothing beyond a discretion in the government in the regulations it may make for the postoffice department for the selection amongst the various routes, whilst they continue in existence, of those along which it may be deemed most judicious to have the mails transported. I do not believe that this power given to Congress expresses or implies anything peculiar in relation to the means or modes of transporting the public mail, or refers to any supposed means or modes of transportation beyond the usual manner existing and practised in the country, and certainly it cannot be understood to destroy or in anywise to affect the proprietary rights belonging to individuals or companies vested in those roads. It guarantees to the government the right to avail itself of the facilities offered by those roads for the purposes of transportation, but imparts to it no exclusive rights—it puts the government upon the footing of others who would avail themselves of the same facilities.”
For these reasons, “the government could legally claim no power to collect tolls, no exemption from tolls, nor any diminution of tolls in their favor, purely in consequence of their having expended money on the road, and without the recognition by Pennsylvania of that expenditure as a condition in any contract they might make with that state.” Nevertheless the United States could contract with Pennsylvania, and so Justice Daniels examined the terms of the agreement, coming to the conclusion that by its terms, United States mail was not exempt from toll charges.263
While the authority of the majority opinion in this case is somewhat lessened by the fact that the argument was as to the meaning of the compact, it was held, impliedly at least, that in order to carry out one of its delegated powers,—the establishment of postoffices and postroads,—the United States might, by compact, enter upon a scheme of internal improvements. Furthermore, the court, by holding that the general government had the right to enter into the compact of surrender, recognized an original federal interest in the Cumberland Road. The clear import of the majority opinion is, I think, that if Taney had considered it necessary to pass upon the point, Congress would have been accorded the right to construct postroads, and this would have included authority to charge tolls for the use of the highways by others than the postoffice department.264
These adjudications were carried a long step further when the Supreme Court asserted the federal right of eminent domain which had been foreshadowed in the Dickey case, but not exercised by Congress.265 In 1864 the Northern Pacific Railroad was incorporated, and lands were granted to aid in the construction, but the act provided that the company “shall obtain the consent of the legislature of any state through which any portion of said railroad line may pass, previous to commencing the construction thereof.” Congress reserved the right to appeal or amend the act, “to secure to the government at all times (but particularly in time of war) the use and benefits of the same for postal, military and other purposes.”266 In 1868, however, Congress undertook improvements in the Mississippi River, and authorized its agents to take possession of the necessary materials “after having first paid or secured to be paid, the value thereof which may have been ascertained in the mode provided by the laws of the state.”267
When the question came before the courts there was little hesitancy in holding that Congress had a right of eminent domain. The Circuit Court for the Southern District of Ohio declared that “the constitutional provisions giving to Congress authority to establish postoffices and postroads, and to make all laws for carrying into effect the enumerated powers, taken together with the declaration that all laws made in pursuance of the Constitution shall be the supreme law of the land, invest Congress with authority to condemn lands situated within a state for use as a postoffice site.”268 A holding to the same effect was made by the Supreme Court of the United States which declared:
“It is true, this power of the federal government has not heretofore been exercised adversely; but the non-user of a power does not disprove its existence.... If the United States have the power, it must be complete in itself. It can neither be enlarged nor diminished by a state. Nor can any state prescribe the manner in which it must be exercised. The consent of a state can never be a condition precedent to its enjoyment.”269
But before this right of eminent domain was recognized, a broad legislative control had been assumed over the highways of the country. In 1838 Congress declared “that each and every railroad within the limits of the United States which now is, or hereafter may be made and completed, shall be a postroute,”270 and in 1856, the Supreme Court (under the commerce clause, however) sanctioned a further extension.
Bridges across the Ohio River at Wheeling were alleged by the State of Pennsylvania to be an obstruction of navigation and their removal was ordered by the Supreme Court. The decree had not been executed when, by act of Congress (1852), the bridges were “declared to be lawful structures in their present positions and elevations, and shall be so held and taken to be, anything 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 postroads for the passage of the mails of the United States.”
Later, the main bridge being blown down, the Supreme Court granted an injunction restraining the reconstruction. The company disregarded the order and upon motions by the plaintiff to attach the defendant’s property for contempt, and by the company to dissolve the injunction, the Supreme Court held that the act of Congress vacated the decree and superseded its effect and operation. The Court said:
“We do not enter upon the question, whether or not Congress possess the power, under the authority of the Constitution, ‘to establish postoffices and postroads’ to legalize this bridge; for, concluding that no such powers can be derived from this clause, it must be admitted that it is, at least, necessarily included in the powers conferred to regulate commerce among the several states.”271
By the act of March 2, 1861,272 moreover, the monopoly provisions of earlier statutes were extended to all postroutes, already or thereafter established, but letter carrier routes within cities did not become postroads until so declared by Congress in 1872, and at the present time, in addition to railroads and routes for the collection and delivery of the mail, the following are established as postroads: all waters of the United States, canals, and plank roads during the time the mail is carried thereon; “the road on which the mail is carried to supply any courthouse which may be without a mail, and the road on which the mail is carried under contract made by the postmaster general for extending the line of posts to supply mails to postoffices not on any established route, during the time such mail is carried thereon”; and “all public roads and highways while kept up and maintained as such.”273 In order to insure the safe passage of the mails, the federal government may take all necessary measures to remove obstructions and prevent depredations, even on the public streets of a town.
Finally, under three grants in the Constitution,—to regulate commerce, to establish postoffices and postroads, and to raise and support armies,—Congress has chartered transcontinental railway companies and bridge companies. It has, moreover, granted to these corporations the power of eminent domain to be exercised without the consent or permission of the states. In holding that the franchises of the Union Pacific Railroad Company were federal franchises, properly granted, and beyond the power of the state to tax, the Supreme Court 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 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, 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 exercisable therein, are, and ever have been, undoubted. But 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.”274