The Lawsuit Wheeling Suspension Bridge, Wheeling West Virginia
Now that the bridge was up, Pittsburgh's strategy shifted from that of injunction to abatement. Pennsylvania's original action had been a request for an injunction against the bridge company and its agents. The appeal was to Supreme Court Justice Grier, a native of Pittsburgh, filed in the United States Court of Philadelphia, August 16, 1849. On this occasion, Justice Grier ordered the controversy tranferred to the United States Supreme Court, while Pennsylvania filed a bill in equity seeking an injunction, and after completion of the bridge a supplemental bill seeking its abatement.
To overcome the impression that the suit really involved only a few citizens and to make sure that the Supreme Court would have jurisdiction over the case, both houses of the Pennsylvania legislature were asked to concur in a resolution directing the State's Attorney General to bring the action.
Wheeling people undoubtedly respected the right of free use of the river. They too had a stake in what transpired lower down the river and had their own free navigation to worry about, both above and below the bridge. They knew that the Monongahela bridges did affect interstate commerce. They were probably not aware that in a few years more dams would be built and a tremendous tonnage of coal would be shipped on that river from West Virginia mines.
Wheelingites believed that the practicality of hinging stacks had already been demonstrated, as at Louisville, and that it was reasonable to call a halt to "chimney" height at some point, else bridging anywhere would become impossible and the Ohio River would become an obstacle to national development. They questioned the sincerity and minimized the claims of Pittsburghers reporting inconveniences experienced at Wheeling, situated fifty miles from Pittsburgh and in another state.
Wheeling also believed that freedom of navigation was not without its limitations when it conflicted with equal or greater rights, including the right to deliver United States mail, impeded an average of more than 24 days a year by ice floes in the Ohio River, and the right of the government to transport troops and equipment. (How essential the latter right was, the Civil War demonstrated, when the B & 0 had to ferry Hooker's troops and supplies across the river at Bellaire when he was rushed to the relief of the Union Army in Tennessee.)
Wheeling strategy and approach was intensely practical and therefore political. The first move was to get the Virginia Assembly to declare the bridge of lawful height. Wheeling denied the corporate capacity of Pennsylvania to bring suit, partly because the bridge was located within the sovereign power of Virginia. Ellet, whose tongue and pen were always prolific, exercised both in behalf of the bridge and suggested the main lines of strategy. He had vitriolic exchanges with Edwin M. Stanton, a native of Steubenville, who had taken up residence in Pittsburgh and was later Secretary of War. Stanton was chief counsel for the Pennsylvania interests. R. H. Walworth, former chancellor of the State of New York, was appointed commissioner to examine the evidence. He reported a great conflict in the testimony of witnesses but observed that a preponderance of testimony indicated danger to navigation. He suggested the possibility of a draw in the bridge to avoid obstruction, but an engineer consulted by the Court reported that no draw in a bridge over either channel would create a safe and convenient passage for the large steamers.
The majority opinion of the Court, given in May 1852, was written by Associate Justice McLean of Cincinnati, and was favorable to Pennsylvania. The majority held that the bridge was an obstruction to navigation; that it was in violation of acts of Congress and could not be authorized or protected by Virginia; that competition between railroads and waterways might have beneficial results, but that railroads would never supersede waterways.
The bridge was permitted to remain, if raised, to a height of 111 feet above low water for a distance of 300 feet across the main channel, or altered in some way so as not to interfere with navigation. But everyone knew that the height prescribed would prevent the bridge from being used by railroads, while the alterations suggested for the western channel, if possible, would necessitate great additional expense.
Chief Justice Taney and Associate Justice Daniel wrote separate dissenting opinions. In fact, the Wheeling bridge cases occasioned 14 distinct opinions written by members of the Supreme Court. Daniel dealt with the case from the standpoint of state and local economic rivalry. He concluded from the majority decision that any new economic advantage might become the occasion for a suit by an aggrieved industry in another state. He gave a hypothetical example of the effect that might be created on Pennsylvania transportation if a railroad should finally link the eastern seaboard with the Ohio River at Point Pleasant, a prospect, in fact, even then being entertained by Ellet and many others.
Taney, basing his opinion on Willson vs. Blackbird Creek Marsh Co., held that a bridge such as Wheeling's could not be regarded as a nuisance without specific legislation by Congress. He believed that Congress was in a better position than the Supreme Court to determine details falling within its constitutional power.
Undaunted by the adverse decision and backed by the legislatures of Virginia and Indiana, Wheeling appealed to the United States Congress to make the bridge part of a postal and military road. The request had considerable support among the states' rights advocates and a large minority of Ohioans who lived in sections favorable to a railroad crossing at Wheeling rather than Pittsburgh.
On August 31, 1852, the U. S. Congress, as a rider to the Post Office appropriations bill, approved the bridge as a post road and of legal height. Obviously, Congress had adopted the philosophy of the minority opinion. Almost equally surprising was the Supreme Court's seeming acquiescence in the same philosophy.
After the bridge fell in 1854, Pennsylvania again appealed to Justice Grier of the Supreme Court for an injunction enjoining the bridge company from rebuilding the structure. Justice Grier granted the injunction during the court's vacation, but Ellet and the directors ignored it. In a sharply divided vote, the court held that Congress had power to validate a structure previously declared unacceptable. The various points of legal disagreement remain applicable to modern problems facing the courts.
The minutes of the bridge company contain many references to payment for legal services and for travel in connection with the case, chiefly in collecting testimony. Along those receiving payments were Reverdy Johnson and Alexander H.H. Stuart, prominent Whigs, both supporters of the bridge.
Ellet complained that the opposition had called only one person who combined practical knowledge with scientific theory. He believed that this man, none other than John Roebling, had been called by Pittsburgh interests on the assumption that he had had some disagreement with the bridge company. Much to everyone's surprise, Roebling denounced the high chimneys as objectionable in every way, and "if they could be forced from our rivers by some low bridge, it would be the greatest service which could be rendered to the navigation of the western waters."
By 1852, court costs and other expenses led the directors to seek a $300,000 ceiling on bridge stock, in addition to $100,000 borrowing power to meet expenses. What had started out to be a good inyestment became, instead, a financial drain. Tolls were raised on some classifications, lowered on others.
A fine of $5.00 for horses exceeding a walk was established soon after the opening of the bridge.
Hugh Dillon was appointed toll keeper on the. Wheeling side at a salary of $500 plus a residence, and Walker Hunter, keeper at $400 on the Ohio side. During a relatively quiet period, Ellet supervised repairs on the west channel bridge and added wing walls to it.