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tinction lies. That the United States acquired, in a corporate capacity, the right of soil under water, as well as of the high-lands, by the treaty with France, cannot be doubted; nor that the right of soil was retained, and subject to grant up to the time Alabama was admitted as a state." In Hinman v. Warren, 6 Or. 408, the court went further, and held that the United States cannot dispose of the tide-lands, even in a territory. This decision is also based on the dogma of state sovereignty,— that is, the sovereignty of a state in futuro, which is yet, so to speak, in utero, or the womb of time, and may never be born.

The proposition is supported by the assertion "that the United States government has no constitutional or statutory authority to so act towards a territory, or so dispose of the lands within a territory, as to make it impossible to admit such territory upon an equal footing with the other states of the Union."

In Gould on Waters (section 40) it is said this is the only adjudication on the subject of the power of the national government, "while holding the title to the soil of the tide-waters," to make a valid conveyance of the same.

The author adds: "The decisions of the supreme court of the United States have been thought to lead to the conclusion reached in Hinman v. Warren, but it would seem that there is no very direct expression of such a view in the opinions of that court."

The doctrine that new states must be admitted into the Union on an "equal footing" with the old ones does not rest on any express provision of the constitution, which simply declares (article 4, § 3) "new states may be admitted by congress into this Union," but on what is considered and has been held by the supreme court to be the general character and purpose of the union of the states, as established by the constitution,—a union of political equals. Pollard v. Hagan, 3 How. 233; Permoli v. New Orleans, Id. 609; Strader v. Graham, 10 How. 92.

But certainly this equality does not require that the new state shall be admitted to any right in the soil thereof considered as property. The ante-Revolution states acquired no property in the soil thereof by entering into the Union. The lands that had not passed into private hands they already owned and held, as the political successors of the British crown.

The true constitutional equality between the states only extends to the right of each, under the constitution, to have and enjoy the same measure of local or self government, and to be admitted to an equal participation in the maintenance, administration, and conduct of the common or national government.

The pride of the new state may be touched at the thought of being the owner of the tide, swamp, and overflowed lands within its borders, and the tax-payer may flatter himself that the proceeds of their sale will lighten the burdens of taxation, but observation and experience in the new state tell a different tale. If aid is to be given to the new state out of the public lands within its borders, let congress provide that it shall have a liberal percentage of all the sales of such land. The soil of Oregon was acquired by the national government by means

of the discoveries, explorations, and occupation of the citizens of the United States; and it was so acquired for the benefit of all, and not a part. In Johnson v. McIntosh, 8 Wheat. 595, Mr. Chief Justice MARSHALL, in considering the effect of a discovery of an uninhabited country by persons who acknowledge some existing government, says:

"The discovery is made for the benefit of the whole nation; and the vacant soil is to be disposed of by that organ of the government which has the constitutional power to dispose of the national dominions."

And in Martin v. Waddell, 16 Pet. 409, Mr. Chief Justice TANEY cites this language, and relies on this authority, in a case involving the right to the soil under the navigable waters of New Jersey. Congress is the

organ of the national government that has the power to dispose of the territory and other property of the United States. Const. art. 4, § 3.

In the territories the national government is both the sovereign and proprietor. Congress has the power to govern them, and in so doing exercises the combined power of the national and state governments. Insurance Co. v. Canter, 1 Pet. 542. And as such sovereign and proprietor it may dispose absolutely of all the public land in the territory, whether high or low, wet or dry. For the time being, as sovereign, it has the jus publicum, or right of jurisdiction and control, of the shores for the benefit of the public, as in the case of a public highway over private land; while as proprietor it has the jus privatum, or right of private property, subject to the jus publicum. Gould, Waters, § 17.

This jus publicum, whether held by the national government during the territorial period or the state thereafter, may be sold or disposed of by the legislature of either, who represent the public. Lansing v. Smith, 4 Wend. 20; Gould v. Railway Co., 6 N. Y. 538; Gould, Waters, § 32. On the admission of the territory into the Union, the state, as the local sovereign or authority, succeeds to the jus publicum, except so far as may be necessary to enable the national government to make and maintain regulations of commerce. But it rests with congress to say Can any

when a territory shall be admitted into the Union as a state. one say when, if ever, Alaska will be admitted into the Union, on an equal footing with Ohio, Pennsylvania, and New York? For aught that appears, it will ever be but very sparsedly populated. Its commercial value is principally as a splendid preserve for fish and fur; while, as a summer touring ground, and a place to get "far from the madding crowd," it is original and unequaled. Can it be possible that in the mean time the United States may not dispose of the private property in any of the "shore" of Alaska, which it purchased from Russia, but must hold it, willing or not, as trustee for some possible state or local sovereign that may arise or rule there in the far future? As well ask, it seems to me, if any grant or disposition of the shore in England by the crown, prior to magna charta, is binding on the succeeding sovereigns of the house of Hanover.

Assuming, as we must, in the present state of the decisions on the subject, that the "shore" or lands in Oregon periodically covered by the tides, and not disposed of by the United States while it was a territory,

are the property of the state, what, on the showing here made, is the condition of the "shore" in question, or the rights of the parties to this suit in relation thereto? There is nothing to show that it ever has been disposed of by either the state or the United States. By the act of 1887, supra, the state has authorized its sale. So far as appears, this sale may be made without qualification or reservation,—a sale of both the jus publicum and the jus privatum,—in which case the vendee would acquire the private property in the land, and the right of the public to the use of the same for the purpose of navigation or fishing.

Whether any reservation of the jus publicum has been made in the deeds executed by the commissioners to vendees under the act I am not advised.

The plaintiff is the owner of land abutting on the "shore" of Yaquina bay. How he acquired it does not appear, and it may not be material. But the title must be derived from the United States, under some of the acts of congress providing for the disposition of the public lands in Oregon. Be this as it may, as a littoral proprietor he has a right of access from his premises to the water, and to erect and maintain a private wharf there, at which to land and embark, so long as he does not materially interfere with the rights of the public, and subject to the power of the legislature to regulate such use or privilege. Dutton v. Strong, 1 Black, 25; Railway Co. v. Schurmeir, 7 Wall. 272; Yates v. Milwaukee, 10 Wall. 497; Weber v. Commissioners, 18 Wall. 57; Gould, Waters, §§ 124, 149, 151, 154.

The defendant has no special right in the "shore," or to the use of it, beyond that of the general public, which does not include the right to construct or maintain a tramway or other structure upon or over it, that would prevent or substantially impair the littoral proprietor's right or privilege of access to and from the water.

It does not appear from the bill that this tramway is in fact such a structure, or whether the rail or track is laid level with the sand or earth or not. Presumably it is so. But it was admitted on the argument that it is 12 or 15 inches above the surface of the ground, and therefore cannot be crossed by a wheeled vehicle, unless it is bridged.

Prima facie, then, the tramway is a nuisance, which works a special injury to the plaintiff, and the defendant ought not to be allowed to maintain it; and an injunction is the proper remedy for the wrong. 1 Pom. Eq. Jur. § 252; Gould, Waters, § 21.

The point made under the act of 1887 cannot now be considered. The facts on which it rests are not in the record, nor are they such as the court can take judicial notice of. It does not appear from the bill that the "shore" in question is within the corporate limits of Newport, or that the land of the plaintiff is.

In this opinion some possible aspects of this case are considered that are not absolutely necessary to the decision on this demurrer. But they were seriously propounded by the learned counsel for the parties, and the consideration of them invoked.

The demurrer is overruled.

Ivison et al. v. Board of SCHOOL COMMISSIONERS.

(Circuit Court, D. Indiana. September 5, 1889.)

1. SCHOOLS AND SCHOOL-DISTRICTS-TEXT-BOOKS-EVIDENCE-PAROL, TO EX PLAIN WRITING.

A proposition by complainants to the school board of a city, that if certain text-books should be adopted by the latter complainants would furnish them on certain terms, and a resolution of acceptance of such proposition by the board, neither of which stipulates for any length of time for which the books shall be used, creates a contract free from ambiguity, and evidence aliunde is not admissible to show that a certain time was intended.

2. SAME,

Nor is such intention shown by the requirement of Rev. St. Ind. § 4436, that no text-book adopted by the county board shall be changed within six years from its adoption, as such requirement does not apply to cities; and as the statute also provides that such changes may be made by the unanimous consent of the board.

8. SAME.

The facts that by its by-laws the board can make no changes in books except at certain sessions, and that at another session it is about to exclude complainants' books and introduce others, in accordance with an act of the legis lature, does not, on bill to enjoin such action, bring in question the validity of the act, where the board's by-laws also provide that changes may be made at any time by a two-thirds vote.

In Equity. On bill for injunction.
A. C. Harris, for complainants.

Duncan, Smith & Wilson, for defendant.

WOODS, J. The bill of the complainants is to the effect that in May, 1888, the board of school commissioners of the city of Indianapolis entered into a contract with the complainants, whereby, on terms stated, Swinton's geographies were adopted for use in the schools of the city for the term of six years; that the complainants have fully complied with the contract on their part, but that the commissioners, supposing themselves bound in law to such action, are about to adopt and introduce, to the exclusion of complainants' books, books to be supplied by contractors under a certain act of the legislature of Indiana of date of March 2, 1889, (Acts 1889, p. 74;) that said act, besides being in violation of the constitution of the state for reasons stated, is invalid in respect to the contract of the complainants and the board of school commissioners, aforesaid, and in violation of the constitution of the United States, because, if upheld, it would impair the obligation of that contract.

In respect to the making and terms of that contract, the bill shows that at the regular session of the board on May 4, 1888, a resolution was passed that Swinton's geographies be adopted, provided satisfactory terms could be obtained with the publishers; and that, after conferring with the board, the complainants signed and submitted to the board, at its session held on the 18th day of May, 1888, the following proposition: "MAY 4, 1888.

"This paper is to certify that, if Swinton's geographies be adopted by the school board of Indianapolis, Ivison, Blakeman, Taylor & Co., as publishers

of said books, will furnish them to the pupils of the public schools of Indianapolis in accordance with the following conditions: (1) Swinton's Introductory Geography to be given in even exchange for all Guyot's Elementary Geographies presented for such exchange upon an agreed date acceptable to both parties to this agreement. (2) The same of Swinton's Grammar School Geography for Guyot's Intermediate Geography. (3) A Swinton's Grammar School Geography to be given for a copy of Guyot's Elementary and thirtyfive cents, if presented at date mentioned above. (4) A donation of 250 copies of each book, Swinton's Introductory, and Swinton's Grammar School, to be made to the school board. (5) The publishers to furnish teacher's desk, in every case, with a copy of the book used in her grade. (6) Introduction rates of 40 cts. for Introductory, and 90 cts. for Grammar School; to continue for one year. (7) Regular prices after one year to be regular wholesale prices, subject to any deductions that may for any reason be made in said books by the publishers. The prices are in no case to be increased during the term of use of such books in Indianapolis. "IVISON, BLAKEMAN, TAYLOR & Co.

[Signed]

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By W. F. FRY, General Agent for Indiana & Michigan." And that thereupon at said meeting it was moved by a member of the board that said proposition be adopted by said board and the agreement concurred in, which was then and there done, as fully appears upon the files and records of the board.

In respect to the powers of the school commissioners of the city to adopt books and make contracts for their supply, the statutory provisions are as follows:

etc.

Rev. St. 1881: "Sec. 4436. County Board of Education. (8) The county superintendent, and the trustees of the townships, and the chairman of the school trustees of each town and city of the county, shall constitute a county board of education. * * * Said board shall consider the general wants and needs of the schools and school property of which they have charge, and all matters relating to the purchase of school furniture, books, maps, charts, The change of text-books, except in cities, and the care and management of township libraries, shall be determined by such board, and each township shall conform as nearly as practicable to its action; but no text-book hereafter adopted by the county board shall be changed within six years from the date of such adoption, except by unanimous vote of all the members of such board: provided, that any text-book heretofore adopted by the county board of education shall not be changed within three years from the date of its adoption."

** *

"Sec. 4460. Duties and Powers. (4) Such board of school commissioners is hereby authorized: *Seventh. To establish and enforce regulations for the grading of, and course of instruction in, the schools of the city, and for the government and discipline of such schools."

The by-law of the board on the subject is as follows:

"Sec. 7. Text-Books and Course of Instruction. It shall be the duty of this committee, annually, at the first regular meeting of the board in April, to make a report embracing such facts and suggestions in regard to text-books and course of instruction as it may think advisable to present. At this meeting any member may propose changes in text-books. All propositions for changes in text-books shall lie over for one month, when they may be acted upon. It shall not be in order for any commissioner at any other time to propose changes in text-books used in the schools, except by a vote of at least twothirds of all the members of the board. * * All changes in text-books

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