tion was deemed a sufficient act under the power to regulate commerce, and the state authority to erect a bridge, which should interfere with that commerce, was destroyed. § 367. Smith v. Maryland. The case succeeding in or der of time was Smith v. The State of Maryland.1 The territorial limits of Maryland include part of Chesapeake Bay below low-water mark. These waters furnish a habitat for oysters, and the fishery thereof is an important branch of industry. A law of the state forbade persons to fish for oysters with a scoop or drag, under certain penalties. Smith, the owner of a vessel enrolled and licensed as a coasting vessel, under the laws of the United States, violated the Maryland statute, and the action was brought to recover the penalty. The sole defence was the invalidity of the state legislation. The court held it to be valid; to be a mere exercise of territorial jurisdiction, or, in other words, of jurisdiction over the soil of which the state was the paramount owner. § 368. Sinnot v. Davenport. - In Sinnot v. Davenport,2 the Supreme Court unanimously held that a statute of Alabama requiring the owners of steamboats navigating the waters of that state, before such boats can leave the port of Mobile, to file a statement in writing setting forth the name of the vessel, the name of the owner, and his place of residence, and the interest of each owner, was wholly void and inoperative, so far as it applied to steamboats enrolled or registered under the laws of the United States. An endeavor was made by the counsel representing the state of Alabama to convince the court that the statute was a mere regulation of police; but the attempt entirely failed, and Gibbons v. Ogden was upheld and followed. --- § 369. Gilman v. Philadelphia. We now come to another recent case decided by the Supreme Court of the United States, a case which is certainly in conflict with some of the former adjudications which have been referred to, Gilman v. Philadelphia. The important facts are as follows: The 1 18 How. 71. 2 22 How. 227. 8 3 Wall. 713. See Pound v. Turck, 95 U. S. 459. The power of Congress to regulate the building of bridges over navi Schuylkill River divides the city of Philadelphia, and emp ties into the Delaware; it is tidal for about seven and a half miles from its mouth, and is navigable for vessels drawing from eighteen to twenty feet of water; there is a very extensive commerce in coal upon it, which employs a large number of barges and small steamers that are enrolled and licensed under United States laws. There are, and have long been, bridges across it within the limits of the city, some with draws, others permanent. The plaintiff was the owner of coal wharves on this river, below any bridge, and carried on an extensive business, but was not a navigator, or the owner of licensed vessels. The city of Philadelphia was authorized by a statute of the Pennsylvania legislature to erect, and was proceeding to erect, a new bridge across the river, below all the others, and below the plaintiff's wharves. This bridge would be a public convenience; but being permanent, and only thirty feet above the water, it would greatly interrupt the navigation of the river, would absolutely prevent masted vessels from passing it, and would be a serious interruption to the plaintiff's business. Congress had established the district of Philadelphia, including "all the shores and waters of the River Delaware, and the rivers and waters connected therewith, lying within the State of Pennsylvania," and had made the city of Philadelphia the port of entry for such district. The plaintiff sought by this suit to restrain the city from building the contemplated bridge. § 370. Opinion of the Court. The opinion of the court was given by Mr. Justice Swayne. He laid down the general rule which I have already stated in § 331; and in its application stated that the erection of bridges fell within the second class of commercial regulations, over which the states have jurisdiction, unless Congress should deprive them of that authority by legislating upon the same subject. As gable waters, which had been authorized by state legislation, was much considered in Bridge Co. v. The United States, 105 U. S. 470, în which it was held that Congress had power to change the plans adopted by the bridge builders in accordance with state legislation. ED. Congress had never passed any statute touching the erection of bridges over such streams as the Schuylkill, the power of the states was unlimited. The case mainly relied upon by the court was Wilson v. Blackbird Creek Company. Mr. Justice Clifford delivered an elaborate dissenting opinion, in which Wayne and Davis, JJ., concurred. He took the ground that Congress had already sufficiently legislated to cover the subject-matter and to deprive the state of power to build the bridge in question. This legislation consisted in the navigation laws, which, as had been repeatedly held, enable vessels registered or enrolled and licensed to enter all navigable waters free from state interference; but especially in the statute declaring Philadelphia to be a port of entry. He asserted that Wilson v. Blackbird Creek Company had no application; because the statute of Delaware was upheld in that case as a measure of police, a means to reclaim marsh lands and improve the health of the neighborhood. § 371. I cannot refrain from saying that the dissenting opinion of Judge Clifford is a most overwhelming answer to the positions taken by the court. Laying out of view the Blackbird Creek case, the judgment in Gilman v. Philadelphia is opposed to the whole scope and tenor of all prior decisions, and is in direct conflict with Pennsylvania v. Wheeling Bridge Company. Indeed, these two cases are absolutely identical in their facts; in each the plaintiff sought to protect his rights as proprietor on the banks of the river above the bridge; in each a state, by its statute authorizing a permanent bridge, had interfered with those rights; in neither had Congress directly legislated upon the subject of bridges. Yet the court overthrew the statute of Virginia, and upheld that of Pennsylvania; they deliberately adopted, in the Philadelphia case, the position of Chief Justice Taney in the dissenting opinion which he delivered in the Wheeling case, although in the latter Congress had only acted by recognizing the Ohio as a navigable stream, while in the former, Congress had directly legislated by declaring Philadelphia to be a port of entry. I repeat that, while it cannot be supposed the court intended to overrule the long series of great and most ably considered cases which have been referred to in the foregoing sections, they have placed themselves in antagonism to many of those decisions. § 372. Is there any explanation of this seeming inconsistency, this departure from old landmarks? I think there is, and that it is hinted at in one sentence of Mr. Justice Swayne's opinion:1 "It must not be forgotten that bridges, which are connecting parts of turnpikes, streets, and railroads, are means of commercial transportation, as well as navigable rivers, and that the commerce which passes over a bridge may be much greater than would ever be transported on the water it obstructs." The court was pressed with the fact that the internal commerce of the country, carried on upon railways, had grown to such an enormous size as to entirely outweigh in importance the traffic upon most inland waters, although navigable. If these navigable streams cannot be bridged, the actual commerce among the several states will suffer vastly more than it would were these interior streams to be made absolutely impassable. The court was forced, therefore, to do substantial justice by a somewhat illogical and inconsistent process. § 373. This subject of bridges, authorized by state laws to be built over navigable streams, deserves a little further remark. Two cases may arise: (1.) The stream may be technically navigable, but Congress may not have established any port of entry upon it at or above the point where the proposed bridge or obstruction is to cross; in other words, may not have legislated in respect to this particular stream. (2.) The river may be navigable, and Congress may have established a port of entry at or above the point where the proposed obstruction is to cross; in other words, may have 1 3 Wall. 729. 2 As to what are 66 'navigable waters," see Miller v. Mayor of New York, 109 U. S. 385; the East River; Ex parte Boyer, 109 U. S. 629; the Illinois and Lake Michigan Canal; Bridge Co. v. The United States, 105 U. S. 470; the Ohio River; Escanaba Co. v. Chicago, 107 U. S. 679; the Chicago River. ED. Each legislated in regard to this particular watercourse. case may, again, present itself under two aspects: the bridge may be a complete and permanent obstruction, and entirely of vessels used in commerce; or it may prevent the passage only hinder and delay, without prohibiting, such transit. When the latter circumstances exist, there arises a question of fact; the amount of hindrance and delay must be determined. If this amount be not substantial, there is certainly no interference by the state with the prerogatives of the national legislature. When the former circumstances exist, when the hindrance is permanent and complete, the Wheeling Bridge case and the Philadelphia Bridge case will apply. The Supreme Court cannot, however, be supposed to have established, as a general rule, that a state may entirely obstruct the navigation of its streams connecting with the ocean, whenever Congress has not expressly legislated in reference to bridge-building. It cannot be supposed that New York may permit a bridge to cross the Hudson River, or the East River, between Brooklyn and New York city, in such a manner as to materially hinder, delay, or in any way interfere with the immense traffic which passes over those streams.1 1 It is now well settled that in the absence of legislation by Congress, a state may authorize a navigable stream within its limits to be obstructed by a dam, bridge, or highway. Pound v. Turck, 95 U. S. 459. And see Huse v. Glover, 15 Rep. 388; 11 Bissell, 550. And it was held in Cardwell v. American Bridge Co. 113 U. S. 205, that this right was not taken away from California by that clause in the act of Congress admitting her into the Union, which declares that "all the navigable waters within said state shall be common highways and forever free, as well to the inhabitants of said state, as to the citizens of the United States, without any tax, impost, or duty therefor." The cases cited in this opinion were said to illustrate the general doctrine, now fully recognized, that the commercial power of Congress is exclusive of state authority only when the subjects upon which it is exerted are national in their character and admit and require uniformity of regulations affecting alike all the states; and that when the subjects within that power are local in their nature or operation, or constitute mere aids to commerce, the states may provide for their regulation and management, until Congress intervenes and supersedes their action. See also Escanaba Co. v. Chicago, 107 U. S. 679; County of Mobile v. Kimball, 102 U. S. 691. ED. |