The power of congress to pass laws for the regulation of the navigation of public rivers, and to prevent any and all obstructions therein, is not questioned. But until it does pass some such law, there is no common law of the United States which prohibits obstructions and nuisances in navigable rivers, unless it be the maritime law, administered by the courts of admiralty and maritime jurisdiction. No precedent, however, exists for the enforcement of any such law; and if such law could be enforced, (a point which we do not undertake to decide,) it would not avail to sustain the bill in equity filed in the original case. 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. Such obstructions and nuisances are offenses against the laws of the states within which the navigable waters lie, and may be indicted or prohibited as such; but they are not offenses against United States laws which do not exist; and none such exist except what are to be found on the statute book. Of course, where the litigant parties are citizens of different states, the circuit courts of the United States may take jurisdiction on that ground, but on no other. This is the result of so many cases, and expressions of opinion by this court, that it is almost superfluous to cite authorities on the subject. We refer to the following by way of illustration: Willson v. Creek Co., 2 Pet. 245; Pollard's Lessee v. Hagan, 3 How. 229; Passaic Bridge Cases, 3 Wall. 782; Gilman v. Philadelphia, Id. 724; Pound v. Turck, 95 U. S. 459; Escanaba Co. v. Chicago, 107 U. S. 678, 2 Sup. Ct. Rep. 185; Cardwell v. Bridge Co., 113 U. S. 205, 5 Sup. Ct. Rep. 423; Hamilton v. Railroad, 119 U. S. 280, 7 Sup. Ct. Rep. 206; Huse v. Glover, 119 U. S. 543, 7 Sup. Ct. Rep. 313; Sands v. Improvement Co., 123 U. S. 288, 8 Sup. Ct. Rep. 113; Transportation Co. v. Parkersburg, 107 U. S. 691, 700, 2 Sup. Ct. Rep. 732. The usual case, of course, is that in which the acts complained of are clearly supported by a state statute; but that really makes no difference. Whether they are conformable, or not conformable, to the state law relied on, is a state question, not a federal one. The failure of state functionaries to prosecute for breaches of the state law does not confer power upon United States functionaries to prosecute under a United States law, when there is no no such law in exist


But, as we have stated, the court below held that the act of congress of 1859 was a law which prohibited any obstructions or impediments to the navigation of the public rivers of Oregon, including that of the Willamette river. Was it such an act? Did it have such effect? The clause in question had its origin in the fourth article of the compact contained in the ordinance of the old congress for the government of the territory north-west of the Ohio, adopted July 13, 1787; in which it was, among other things, declared that "the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of said territory, as to the citizens of the United States, and those of any other states that may be admitted into the confederacy, without any tax, impost, or duty therefor." 1 St. 52. This court has held that when any new state was admitted into the Union from the northwest territory, the ordinance in question ceased to have any operative force in limiting its powers of legislation as compared with those possessed by the original states. On the admission of any such new state, it at once became entitled to and possessed all the rights of dominion and sovereignty which belonged to them. See the cases of Pollard's Lessee v. Hagan, supra; Permoli v. First Municipality, 3 How. 589; Escanaba Co. v. Chicago; Cardwell v. Bridge Co.; Huse v. Glover,-qua supra. In admitting some of the new states, however, the clause in question has been inserted in the law, as it was in the case of Oregon, whether the state was carved out of the territory northwest of the Ohio, or not; and it has been supposed that in this new form of

enactment it might be regarded as a regulation of commerce, which congresshas the right to impose. Pollard's Lessee v. Hagan, 3 How. 212, 230. Conceding this to be the correct view, the question then arises, what is its fair construction? What regulation of commerce does it affect? Does it prohibit physical obstructions and impediments to the navigation of the streams? Or does it prohibit only the imposition of duties for the use of the navigation, and any discrimination denying to citizens of other states the equal right to such use? This question has been before this court, and has been decided in favor of the latter construction.

It is obvious that if the clause in question does prohibit physical obstructions and impediments in navigable waters, the state legislature itself, in a state where the clause is in force, would not have the power to cause or authorize such obstructions to be made without the consent of congress. But it is well settled that the legislatures of such states do have the same power to authorize the erection of bridges, dams, etc., in and upon the navigable waters wholly within their limits, as have the original states, in reference to which no such clause exists. It was so held in Pound v. Turck, 95 U. S. 459, in reference to a dam in the Chippewa river, in Wisconsin; in Cardwell v. Bridge Co., 113 U. S. 205, 5 Sup. Ct. Rep. 423; in reference to a bridge without a draw, erected on the American river, in California, which prevented steam-boats from going above it; and in Hamilton v. Railroad Co., 119 U. S. 280, 7 Sup. Ct. Rep. 206, relating to railroad bridges in Louisiana,--in all which cases the clause in question was in force in the states where they arose, and in none of them was said clause held to restrain in any degree the full power of the state to make, or cause to be made, the erections referred to, which must have been more or less obstructions and impediments to the navigation of the streams on which they were placed. In Cardwell v. Bridge Co., the two alternate constructions of the clause above suggested were brought to the attention of the court, and, on consideration, it was held as follows: "Upon mature and careful consideration which we have given in this case to the language of the clause in the act admitting California, we are of opinion that, if we treat the clause as divisible into two provisions, they must be construed together as having but one object, namely, to insure a highway equally open to all without preference to any, and unobstructed by duties or tolls, and thus prevent the use of the navigable streams by private parties to the exclusion of the public, and the exaction of any toll for their navigation; and that the clause contemplated no other restriction upon the power of the state in authorizing the construction of bridges over them, whenever such con-struction would promote the convenience of the public." In Hamilton Railroad Co. it was said: "Until congress intervenes in such cases, and exercises. its authority, the power of the state is plenary. When the state provides for the form and character of the structure, its directions will control, except as against the action of congress, whether the bridge be with or without draws, and irrespective of its effect upon navigation;" and in the same case the construction given to the clause in question in Cardwell v. Bridge Co. was reiterated, namely, that it was intended to prevent any discrimination against citizens of other states in the use of navigable streams, and any tax or toll for their use. In Huse v. Glover, 119 U. S. 543, 7 Sup. Ct. Rep. 313, where a portion of the Illinois river had been improved by the state of Illinois, by the erection of locks in the river, and a toll was charged for passing through the same, it was held that this was no encroachment upon the power of congress to regulate commerce, and that, while the ordinance of 1787 was no longer in force in Illinois, yet, if it were, the construction given to the clause in the Cardwell Case was approved, and the following observation was made: "As thus construed the clause would prevent any exclusive use of the navigable waters of the state,-a possible farming out of the privilege of navigating them to particular individuals, classes, or corporations, or by vessels of a

particular character." It was also held that the exaction of tolls for passage through the locks, as a compensation for the use of the artificial facilities constructed, was not an impost upon the navigation of the stream. The same views are held in the recent case of Sands v. Improvement Co., 123 U. S. 288, 8 Sup. Ct. Rep. 113.

It seems clear, therefore, that according to the construction given by this court to the clause in the act of congress relied upon by the court below, it does not refer to physical obstructions, but to political regulations which would hamper the freedom of commerce. It is to be remembered that in its original form the clause embraced carrying places between the rivers as well as the rivers themselves; and it cannot be supposed that those carrying places were intended to be always kept up as such. No doubt that at the present time some of them are covered by populous towns, or occupied in some other way incompatible with their original use; and such a diversion of their use, in the progress of society, cannot but have been contemplated. What the people of the old states wished to secure was the free use of the streams and carrying places in the north-west territory, as fully as it might be enjoyed by the inhabitants of that territory themselves, without any impost or discriminating burden. The clause in question cannot be regarded as establishing the police power of the United States over the rivers of Oregon, or as giving to the federal courts the right to hear and determine, according to federal law, every complaint that may be made of an impediment in, or an encroachment upon, the navigation of those rivers. We do not doubt that congress, if it saw fit, could thus assume the care of said streams, in the interest of foreign and interstate commerce; we only say that, in our opinion, it has not done so by the clause in question. And although, until congress acts, the states have the plenary power supposed, yet, when congress chooses to act, it is not concluded by anything that the states, or that individuals, by its authority or acquiescence, have done, from assuming entire control of the matter, and abating any erections that may have been made, and preventing any others from being made, except in conformity with such regulations as it may impose. It is for this reason, namely, the ultimate (though yet unexerted) power of congress over the whole subject-matter, that the consent of congress is so frequently asked to the erection of bridges over navigable streams. It might itself give original authority for the erection of such bridges when called for by the demands of interstate commerce by land; but in many, perhaps the majority, of cases, its assent only is asked, and the primary authority is sought at the hands of the state. With regard to this very river, the Willamette, three acts of congress have been passed in relation to the construction of bridges thereon, to-wit, one approved February 2, 1870, which gave consent to the corporation of the city of Portland to erect a bridge from Portland to the east bank of the river, not obstructing, impairing, or injuriously modifying its navigation, and first submitting the plans to the secretary of war; another, approved on the 22d of June, 1874, which authorized the county commissioners of Marion county, or said commissioners jointly with those of Polk county, to build a bridge across said river at Salem; a third act, approved June 23, 1874, which authorized the Oregon & California Railroad Company, alone, or jointly with the Oregon Central Railroad Company, to build a railroad bridge across said river at the city of Portland, with a draw of not less than 100 feet in the clear on each side of the draw abutment, and so constructed as not to impede the navigation of the river, and allow the free passage of vessels through the bridge. These acts are special in their character, and do not involve the assumption by congress of general police power over the river.

The argument of the appellees, that congress must be deemed to have assumed police power over the Willamette river in consequence of having expended money in improving its navigation, and of having made Portland a


port of entry, is not well founded. Such acts are not sufficient to establish the police power of the United States over the navigable streams to which they relate. Of course, any interference with the operations, constructions, or improvements made by the general government, or any violation of a port law enacted by congress, would be an offense against the laws and authority of the United States, and an action or suit brought in consequence thereof would be one arising under the laws of the United States; but no such violation or interference is shown by the allegations of the bill in the original suit in this case, which simply states the fact that improvements have been made in the river by the government, without stating where, and that Portland had been created a port of entry. In the case of Escanaba Co. v. Chicago, it was said: "As to the appropriations made by congress, no money has been expended on the improvement of the Chicago river above the first bridge from the lake, known as Rush-Street Bridge.' No bridge, therefore, interferes with the navigation of any portion of the river which has been thus improved. But, if it were otherwise, it is not perceived how the improvement of the navigability of the stream can affect the ordinary means of crossing it by ferries and bridges." 107 U. S. 690, 2 Sup. Ct. Rep. 195. In the present case there is no allegation, if such an allegation would be material, that any improvements in the navigation of the Willamette river have been made by the government at any point above the site of the proposed bridge.

As to the making of Portland a port of entry, the observations of Mr. Justice GRIER in the Passaic Bridge Cases, 3 Wall. 782, 793, App., are very apposite. Those cases were decided in September, 1857, by dismissing the bills which were filed for injunctions against the erection of a railroad bridge across the Passaic river at Newark, New Jersey, and a plank-road bridge across the same river below Newark. The decrees were affirmed here by an equally divided court, in December term, 1861. It being urged, among other things, that Newark was a port of entry, and that the erection of these bridges, though under the authority of the state legislature, was in conflict with the act of congress establishing the port, Mr. Justice GRIER said: "Congress, by conferring the privilege of a port of entry upon a town or city, does not come in conflict with the police power of a state exercised in bridging her own rivers below such port. If the power to make a town a port of entry includes the right to regulate the means by which its commerce is carried on, why does it not extend to its turnpikes, railroads, and canals,-to land as well as water? Assuming the right (which I neither affirm or deny) of congress to regulate bridges over navigable rivers below ports of entry, yet, not having done so, the courts cannot assume to themselves such a power. There is no act of congress or rule of law which courts could apply to such a case." These views were adhered to by the same judge in the subsequent case of Gilman v. Philadelphia. The bridge which was the subject of controversy in that case was within the limits of the port of Philadelphia, which, by the act of 1799, included the city of Philadelphia, and by that of 1834 was extended northerly to Gunner's run. See 3 Wall. 718. That case arose soon after the Passaic Bridge Cases, and, so far as interference with navigation was concerned, was identical in character with them; and Mr. Justice GRIER, upon the same grounds taken and asserted by him in those cases, without delivering an additional opinion, dismissed the bill. The decree was affirmed in this court in December term, 1865, by a vote of seven justices to three, Justices CLIFFORD, WAYNE, and DAVIS dissenting; so that Justice GRIER's views were finally affirmed by a decided majority of the court.

It is urged that in the Wheeling Bridge Case, 13 How. 518, this court decided the bridge there complained of to be a nuisance, and decreed its prostration, or such increased elevation as to permit the tall chimneys of the Pittsburgh steamers to pass under it at high water. But in that case this court had original jurisdiction in consequence of a state being a party; and the

complainant, the state of Pennsylvania, was entitled to invoke, and the court had power to apply, any law applicable to the case, whether state law, federal law, or international law. The bridge had been authorized by the legislature of Virginia, whose jurisdiction extended across the whole river Ohio. But Virginia, in consenting to the erection of Kentucky into a state, had entered into a compact with regard to the free navigation of the Ohio,1 confirmed by the act of congress admitting Kentucky into the Union, which the court held to be violated by authorizing the bridge to be constructed in the manner it was; and the bridge, so constructed, injuriously affected a supra-riparian state (Pennsylvania) bordering on the river, contrary to international law. Mr. Justice GRIER, in the Passaic Bridge Cases, disposes of the Wheeling Bridge Case as follows: "This legislation of Virginia being pleaded as a bar to further action of the court in the case, necessarily raised these questions: Could Virginia license or authorize a nuisance on a public river, flowing, which rose in Pennsylvania, and passed along the border of Virginia, and which, by compact between the states, was declared to be free and common to all the citizens of the United States?' If Virginia could authorize any obstruction at all to the channel navigation, she could stop it altogether, and divert the whole commerce of that great river from the state of Pennsylvania, and compel it to seek its outlet by the railroads and other public improvements of Virginia. If she had the sovereign right over this boundary river claimed by her, there would be no measure to her power. She would have the same right to stop its navigation altogether as to stop it ten days in a year. If the plea was admitted, Virginia could make Wheeling the head of navigation on the Ohio, and Kentucky might do the same at Louisville, having the same right over the whole river which Virginia can claim. This plea, therefore, presented not only a great question of international law, but whether rights secured to the people of the United States, by compact made before the constitution, were held at the mercy or caprice of every or any of the states to which the river was a boundary. The decision of the court denied this right. The plea being insufficient as a defense, of course the complainant was entitled to a decree prostrating the bridge, which had been erected pendente lite. But to mitigate the apparent hardship of such a decree, if executed unconditionally, the court, in the exercise of a merciful discretion, granted a stay of execution on condition that the bridge should be raised to a certain height, or have a draw put in it which would permit boats to pass at all stages of the navigation. From this modification of the decree no inference can be drawn that the courts of the United States claim authority to regulate bridges below ports of entry, and treat all state legislation in such cases as unconstitutional and void." "It is evident, from this statement," continues Justice GRIER, "that the supreme court, in denying the right of Virginia to exercise this absolute control over the Ohio river, and in deciding that, as a riparian proprietor, she was not entitled, either by the compact, or by constitutional law, to obstruct the commerce or a supra-riparian state, had before them questions not involved in these cases, [the Passaic Bridge Cases,] and which cannot affect their decision. The Passaic river, though navigable for a few miles within the state of New Jersey, and therefore a public river, belongs wholly to that state. It is no highway to other states; no commerce passes thereon from states below the bridge to states above." 3 Wall. 792. This exposition of the Wheeling Bridge Case, by one who had taken a decided part in its discussion and determination, effectually disposes of it as a precedent for the jurisdiction of the circuit courts of the United States in matters pertaining to bridges erected over navigable rivers, at least those erected over rivers whose course is wholly within a single state. The Willamette river is one of that description.

On the whole, our opinion is that the original suit in this case was not a

'See Mr. Stanton's argument, 13 How. 523; 1 Bioren's Laws U. S. p. 675, art. 7.

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