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and by the company to dissolve the injunction, the Supreme Court held that the act of Congress vacated the decree and superseded its effect and operation.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.