THE POWER OF CONGRESS TO ESTABLISH POSTROADS
_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 country[179] 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 Gallatin[188] 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 Congress[199] 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 table[224] 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. Maryland[241] 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 inadequate[248] 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 Road[253] 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 action[255]
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]
Early attempts, then, by Congress to furnish postal facilities and open
up communication through the construction of highways for the carriage
of the mails, met with denials that the power “to establish postroads”
meant more than the power to designate the roads to be used, and that,
even if this were not so, any action could be taken without the consent
of the states whose territory was to be used. To permit national
undertakings, however, Monroe developed the distinction that Congress
might appropriate for roads to be laid out with the consent of the
states, but that the national government had no jurisdictional rights
to construct, repair or keep the highways free from obstructions. This
distinction, which Von Holst called a “quibble on words,” was abandoned
by John Quincy Adams, who was a stanch advocate of federal aid, but was
revived by Jackson, who believed that appropriations could be made for
_national_, but not for _local_ purposes. In Congress, during the whole
of this period, various views were expressed, but the better opinion,
accepted by the authority, if not by the majority, of the speakers, was
that Congress had powers (occasionally exercised) which were broader
than the executives were disposed to concede.
The continued assertion by the states of plenary authority and
the failure of Congress to adopt any successful plan by which the
Cumberland Road might be kept in repair, led to compacts of surrender
under which the national authorities gave up all control over this
highway. The meaning of these compacts was examined by the Supreme
Court of the United States, and the plain implication of the decisions
(although definite expressions were not necessary for the determination
of the particular questions presented) is that Congress had the
right to construct postroads and to charge tolls for their use by
others than postal officials. This power had already been conceded
in an illuminating opinion by the Kentucky Court of Appeals, and the
subsequent decisions recognizing a right of eminent domain in the
federal government and sanctioning the federal incorporation of railway
and bridge companies, are conclusive authority that Congress had the
power which the more liberal of its members asserted, but which the
states and occasional executives denied. That the power to _establish_
postroads comprehends the power to _construct_ (compensation being
made to the states), to levy tolls, and to repair and keep free from
obstructions, has thus been assured by judicial decisions as well as by
a fair interpretation of the words of the grant; and any fancied taint
of unconstitutionality has been removed from laws which Congress passed
under its plenary power “to establish postroads,” but which exceeded
the limitations laid down by the strict constructionists, and did not
come before the Supreme Court for a determination of their validity.