Navigable Waters-Power of a State and of the United States-Bridges.

In Ex parte Boyer (109 U. S., 629) the same rule is extended over canals and waterways that are wholly artificial, but which connect navigably with waters of other States.

In the direct line of the development of national authority in relation to our waters navigable in fact and not State locked, we reach the decision in Escanaba Co. v. Chicago (107 U. S., 678), where the court of last resort declares that—

"The Chicago River and its branches must, therefore, be deemed navigable waters of the United States, over which Congress, under its commercial power, may exercise control to the extent necessary to protect, preserve, and improve their free navigation."

It is not of consequence that the stream was originally non-navigable, or that it was artificially constructed, or that it is wholly within one State, or that it has always been practically controlled by the State or city. The use now actually made of the waterway, its practical dedication to the public, the importance, amount, and nature of its commerce, and the source and destination of the commodities borne upon it, establish the character of the navigation.

Therefore it must necessarily be held under the Constitution, the statutes, and the decisions that the Chicago River is as unquestionably a portion of the navigable waters of the United States as is the Strait of Mackinac.

The second question is, when does a stream which is wholly within a State, and which is a part of the navigable waters of the United States, remain under State control, and when does it become subject to national requirements?

It is true that the power to authorize the construction of a bridge over the river in question, as well as the enactment of the great mass of legislation which may affect its commerce, remains in the State; but it is also true that the power vested in Congress to regulate commerce authorizes national legislation which will render void conflicting State laws. As Congress has, in the judgment of many, by its recent enactments made important and radical changes in the relations between the nation and the States as to navigable waters, a review of decisions made upon cases previously arising will better than in any other way present the character and suggest the effect of this recent legislation.

Navigable Waters-Power of a State and of the United States-Bridges.

In the case of Gibbons v. Ogden (9 Wheat.), Chief Justice Marshall, in announcing the opinion of the court, says that all experience shows that the same measures, or measures scarcely distinguishable from each other, may flow from the distinct powers of the State and of the General Government; but that this does not prove that the powers themselves are identical.

He also says that the States may sometimes enact laws the validity of which depends on their interfering with and being contrary to an act of Congress passed in pursuance of the Constitution, and points out that if this act came into collision with an act of Congress, the act of the State must yield to the law of Congress.

He also speaks of acts of the State legislatures which do not transcend their powers, but, though enacted in the execution of acknowledged State powers, interfere with or are contrary to the laws of Congress made in pursuance of the Constitution of the United States.

He declares the subjection of such a State law to the act of Congress.

In the Cuyahoga Bridge Case (3 McLean's Reports, 226) the court says of the respective powers of the State and of Congress in relation to legislation in regard to navigable waters that "a State, by virtue of its sovereignty, may exercise certain rights over its navigable waters, subject, however, to the paramount power in Congress to regulate commerce among the several States. These powers are not concurrent, but are separate and independent of each other. And in regard to the exercise of this power by a State, there is no other limit than the boundaries of the Federal power."

In Gilman v. Philadelphia (3 Wall., 713) the court holds that the States may exercise concurrent or independent power in relation to bridges across streams which lie wholly within the State. In relation to these powers the court says: "It is not possible to fix definitely their respective boundaries. In some instances their action becomes blended; in some the action of the State limits or displaces the action of the nation; in others the action of the State is void because it seeks to reach objects beyond the limits of State authority." In this case the court also says: "Until the dormant power

Navigable Waters-Power of a State and of the United States-Bridges.

of the Constitution is awakened and made effective by appropriate legislation, the reserved power of the States is plenary, and its exercise in good faith can not be made the subject of review by this court."

In the Blackbird Creek Case (2 Pet., 105) it is held that a small navigable stream lying wholly within a State, and in which the tide ebbs and flows, may be closed to navigation by an enactment of the State, and that any injury arising from said act is an affair between the government of the State and its citizens, of which the Supreme Court can take no cognizance. But it is stated: "If Congress had passed any act which bore upon the case; any act in execution of the power to regulate commerce, the object of which was to control State legislation over these small navigable creeks into which the tide flows, and which abound throughout the lower country of the Middle and Southern States,-we should feel not much difficulty in saying that a State law coming in conflict with such act would be void. But Congress has passed no such act."

The act of the State of Delaware in closing the creek was allowed to stand, because it was not in "conflict with any law passed on the subject."

In Kellogg v. The Union Company (12 Conn., 24) the Blackbird Creek Case is referred to, and the court says that the decision strongly intimates the opinion that in order that the power vested in Congress should be so exercised as to affect the question, some act must have been passed, the object of which was to control State legislation.

The court refers to several decisions involving State pow. ers and navigation rights, and adds: "These cases all proceed upon the ground that there is reserved to the State a power to adopt their own municipal regulations in regard to navigable waters within their territorial limits; and in every case the question will be, whether the act of the State does in fact conflict with the laws of Congress, within the meaning of the Constitution." A State law in order to be affected by a law of Congress must come into conflict with such law.

In Thames Bank v. Lovell (18 Conn., 500) the court says (p. 511): "In speaking here of navigable rivers, we speak

Navigable Waters--Power of a State and of the United States-Bridges.

of them as public highways only, without reference to the flow of the tides; for to all rivers navigable in fact, the power of Congress to regulate commerce may extend without distinction. And we suppose, therefore, that the several States' legislatures have the same power to improve the navigation of the tide-water rivers as any other." And the court quotes with approval, "That a grant of power by Congress probably does not prevent the States from continuing to act on subjects within the grant, till Congress legislate fully concerning it, and so as to conflict with the doings of the State unless there is an express prohibition on the States to act further in the matter, or it is strongly implied from the nature of the case."

In Pound v. Turck (95 U. S., 459) Mr. Justice Miller, in stating the opinion of the court, says (p. 462) that the principle established by the decisions is, that some powers conferred by the commerce clause of the Constitution are exclusive in Congress, while there are others which from their nature may be exercised by the States until Congress shall see proper to cover the same ground by such legislation as that body may deem appropriate to the subject.

In the case of Escanaba Co. v. Chicago (107 U. S., 678) the court declares (p. 683) that "The Chicago River and its branches must therefore be deemed navigable waters of the United States, over which Congress under its commercial power may exercise control to the extent necessary to protect, preserve, and improve their free navigation."

But the court recognizes the propriety of leaving the control of the bridges crossing said river to the municipal authorities, and says (p. 690): "To render the action of the State invalid in constructing or authorizing the construction of bridges over one of its navigable streams, the General Government must directly interfere so as to supersede its authority and annul what has been done in the matter."

In Cardwell v. The American Bridge Co. (113 U. S., 205) the court says (p. 209) that, as to authorizing the construction of bridges over navigable streams, the power of the State is subordinate to that of Congress, and adds: "That until Congress acts on the subject the power of the State is plenary. When Congress acts directly with reference to the

Navigable Waters-Power of a State and of the United States--Bridges.

bridges authorized by the State, its will must control so far as may be necessary to secure the free navigation of the streams."

In Huse v. Clover (119 U. S.) the court says of the State action (p. 548), that "it is only when, in the judgment of Congress, its action is deemed to encroach upon the navigation of the river as a means of interstate and foreign commerce that that body may interfere and control or supersede it."

In reference to the bridge authorized by the State of Oregon to be built across the Willamette River, it is said (125 U. S., 8) that "there must be a direct statute of the United States in order to bring within the scope of its laws, as administered by the courts of law and equity, obstructions and nuisances in navigable streams within the States." In 1885 Mr. Attorney-General Garland construes the laws upon this point as follows (18 Opin., 164):

"As the Mississippi River above, at, and for some distance below the city of St. Paul is wholly within the State of Minnesota, the principle enunciated by the Supreme Court of the United States in Wilson v. The Blackbird Creek Marsh Company (2 Pet., 250); Gilman v. Philadelphia (3 Wall., 713); Pound v. Turck (95 U. S., 459); and Escanaba Company v. Chicago (107 U. S., 678), applies to this case, namely; that until Congress acts, and by appropriate legislation assumes control of the subject, the power of a State over bridges across navigable streams within its limits is plenary; but that when this power is exercised so as to unnecessarily obstruct navigation, Congress may interfere and remove the obstruction. The power of Congress to regulate bridges over navigable waters is paramount, and where it comes in conflict with that of the State, the latter necessarily becomes ineffective."

It is established beyond question that previous to 1884 no national legislation existed which interfered with the general authority of the States, acting within the limits of law as administered by the courts, to control within their respective boundaries the navigable waters of the United States.

We now reach the third question to be considered, which is, whether, since the cases cited arose, the dormant power of the Constitution has been awakened by Congressional enactment, so as to bring into conflict with existing para