A flood of traffic swept over the great highway immediately upon its
completion. As early as the year 1822 it is recorded that a single
one of the five commission houses at Wheeling unloaded one thousand and
eighty-one wagons, averaging three thousand five hundred pounds each,
and paid for freightage of goods the sum of ninety thousand dollars.
But the road was hardly completed when a specter of constitutional cavil
arose, threatening its existence. In 1822 a bill was passed by Congress
looking toward the preservation and repair of the newly-built road. It
should be stated that the roadbed, though completed in one sense, was
not in condition to be used extensively unless continually repaired. In
many places only a single layer of broken stone had been laid, and, with
the volume of traffic which was daily passing over it, the road did not
promise to remain in good condition. In order to secure funds for the
constant repairs necessary, this bill ordered the establishment of
turnpikes with gates and tolls. The bill was immediately vetoed by
President Monroe on the ground that Congress, according to his
interpretation of the constitution, did not have the power to pass such
a sweeping measure of internal improvement.
The President based his conclusion upon the following grounds, stated in
a special message to Congress, dated May 4, 1822:
"A power to establish turnpikes, with gates and tolls and to enforce the
collection of the tolls by penalties, implies a power to adopt and
execute a complete system of internal improvements. A right to impose
duties to be paid by all persons passing a certain road, and on horses
and carriages, as is done by this bill, involves the right to take the
land from the proprietor on a valuation, and to pass laws for the
protection of the road from injuries; and if it exist, as to one road,
it exists as to any other, and to as many roads as Congress may think
proper to establish. A right to legislate for the others is a complete
right of jurisdiction and sovereignty for all the purposes of internal
improvement, and not merely the right of applying money under the power
vested in Congress to make appropriations (under which power, with the
consent of the states through which the road passes, the work was
originally commenced, and has been so far executed). I am of the
opinion that Congress does not possess this power--that the states
individually cannot grant it; for, although they may assent to the
appropriation of money within their limits for such purposes, they can
grant no power of jurisdiction of sovereignty, by special compacts with
the United States. This power can be granted only by an amendment to the
constitution, and in the mode prescribed by it. If the power exist, it
must be either because it has been specially granted to the United
States, or that it is incidental to some power, which has been
specifically granted. It has never been contended that the power was
specifically granted.
Public-domain text, read in full here on John Shaqi.
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