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As a general proposition, the power to regulate the use of navigable rivers resides in the States, through which the rivers flow. And the only constitutional limitation upon the State's power of control, as against the United States government, is that which arises by implication from the express grant to Congress of the power to regulate foreign and interstate commerce. Inasmuch as a large part of this commerce is carried on by the use of the navigable streams of the country, it has been uniformly held by the courts, both Federal and State, that the Federal power to regulate commerce includes the power to institute regulations for the use and control of those streams which are used in the prosecution of foreign and interstate com
But inasmuch as all streams may be used in the carrying on of the domestic commerce, and serve other local interests, the congressional power of control does not exclude State regulation altogether. The power of the State to regulate the streams, which may be used in interstate commerce, is unaffected, as long as Congress does not exercise its power; and in any case the State regulations are void only as far as they conflict with the regulations of Congress.
ton, 1 McCord, 580; Commissioners, etc., v. Withers, 29 Miss. 21; Rhodes v. Otis, 33 Ala. 578; Elder v. Barnes, 6 Humph. 358; Gavit v. Chambers 3 Obio, 495; Blanchard v. Porter, 11 Ohio, 138; Depewo. Board of Comrs., etc., 5 Ind. 8; Board of Comrs. v. Pidge, 5 Ind. 13; Moore v. Sanborn, 2 Mich. 519; Dorman v. Benson, 8 Mich. 18; Middleton v. Pritchard, 4 Ill. 560; McManus v. Carmichael, 3 Iowa, 1; Weise v. Smith, 3 Ore. 445 (8 Am. Rep. 621).
1 Cooley Const. Lim. 730; Wilson v. Black Bird Creek Marsh Co., 2 Pet. 245; Wheeling Bridge Case, 13 How. 518; 8. c. 18 How. 421; Gilman v. Philadelphia, 3 Wall. 713; Withers v. Buckley, 20 How. 84; Gibbons v. Ogden, 9 Wheat.1; Escanaba Company v. Chicago, 107 U. S. 678. Uuder the power to regulate commerce, Congress may regulate sale, mortgage, etc., of United States vessels engaged in interstate trade. Shaw v. McCandless, 36 Miss. 296. As to how far State legislature may au horize condemnation of ships as unsea worthy by tribunals constituted by State authority, in absence of any general regulation made by Con. gress, see Janney v. Columbus Ips. Co., 10 Wheat. 418.
In the absence, therefore, of congressional legislatia. the State may regulate the conduct and management of ships, their speed, etc., while making use of these water highways; and the only other limitation upon the power of the State, which may be suggested by a study of police power in general, is that the regulation must be reasonabe as tending to prevent an injurious use of the stream. Thus, in order to prevent damage to vessels from a loox and careless floating of logs down the stream, the State may provide by law that the logs shall be bound together into rafts or enclosed in boats, and be placed under the control and supervision of men, who are required to be reasonably skilled in the management of rafts, and to be actually in charge of them. In like manner are the fisheries in a navigable stream subject to the police regulation of the State. Thus, it was held to be constitutional for : State to forbid non-residents to catch fish for the manufacture of manure and oil, in the navigable waters of the State.
Where the United States government has issued coasting licenses to vessels to engage in interstate commerce on certain navigable streams, no State law can interfere with the enjoyment of the license, by granting to one or more persons the exclusive privilege of navigating the streams in question. But except so far as the stream may be used, or is susceptible of use, in interstate or foreign commerce, it is within the police power of the State to grant exclusive rights to its use. This right of granting exclusive privil
i See People v. Jenkins, 1 Hill, 469; People v. Roe, 1 Hill, 470.
» Craig v. Kline, 65 Pa. St. 399 (3 Am. Rep. 636). See Harrigan e. Conn. River Lumber Co., 129 Mass. 580 (37 Am. Rep. 387).
3 Brothers v. Church, 14 R. I. 398 (51 Am. Rep. 410). See, generally, People o. Reed, 47 Barb. 235; Phipps v. State, 22 Md. 380; Gentile . State, 29 Ind. 409.
Gibbons v. Ogden, 9 Wheat. 1; Ogden o. Gibbons, 4 Johns. Ch. 150; 8. c. 17 Johns. 488; Steamboat Company v. Livingston, 3 Cow. 713. See Gilman v. Philadelphia, 3 Wall. 713; The Daniel Ball, 10 Wall. 557. 6 Veazie v. Moor, 14 How. 568. In this case, the stream over which
eges in the use of a navigable stream is very commonly exercised in the creation of ferries, and the grant of exclusive ferry privileges. The establishment of a ferry across a navigable stream does not materially interfere with the ordinary navigation of the stream; and consequently the power of the State to create and regulate ferries in no case conflicts with the police control of Congress over navigable streams, unless Congress should by actual legislation, in the exercise of its power, supersede the subordinate State control. Not only may the State grant an exclusive privilege to the navigation of a stream, but it may grant an exclusive privilege to fish in the stream,' or to cut ice when the river is frozen over. It is also a common exercise of proprietary power, in South Carolina, for the State to grant to corporations and individuals the exclusive right to dig phosphate rock in the beds of the navigable streams of the State.
The State has also the power to improve the navigable streams of the State, or to authorize private corporations and individuals to make the improvements, and charge toll of those who make use of the stream, as compensation for the improvements. This is but a reasonable exercise of police power, and the coasting licenses of the United States government create no exemption from liability to the regulation. All vessels may alike be required to pay toll.3
the exclusive privilege extended was that part of the Penobscot River, which was intercepted from communication by boats with the sea by a fall and several dams, and consequently was not susceptible of use in interstate commerce. See, also, People v. Tibbetts, 19 N. Y. 523; Livingston v. Van Ingen, 9 Johns. 50; McReynolds v. Smallhouse, 8 Bush, 447.
1 Conway v. Taylor's Ex'r, 1 Black. 603; Fanning v. Gregorie, 16 How. 524; Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365; Parker v. Metropolitan, etc., R. R. Co., 109 Mass. 506; People v. Mayor, etc., of New York, 32 Barb. 102; Chilvers o. People, 11 Mich. 43; Marshall v. Grimes, 41 Miss. 27.
See Tinicum Fishing Co. o. Carter, 90 Pa. St. 85 (35 Am. Rep. 632.) • Thames Bank 0. Lovell, 18 Conn. 500; Kellogg v. Union Co., 12 Conn. 6; Zimmerman v. Union Canal Co., 1 Watts & S. 346; Bedja. min v. Manistee, etc., Co., 42 Mich. 628; Nelson v. Sheboygan Nav.Co, 4 Mich. 7 (38 Am. Dec. 222); Wisconsin River Improvement Co. T. Manson, 43 Wis. 255 (28 Am. Rep. 542); McReynolds v. Smallhouse, 8 Bush, 447; Carondelet Canal, etc., Co. v. Parker, 29 La. Ann. 430 (99 Am. Rep. 339).
The State has also the power to authorize the construction of bridges across the navigable streams within its border; and if the stream is not one, that is or can be used in foreign and inter-state commerce, the power of the State to authorize its construction can in no case he questioned, because the bridge will materially interfere with the ordinary navigation of the stream.
The legislative determination of the public needs cannot in such a case be controlled by the judicial discretion.' The State may also license the construction of piers, exlending into the current of the navigable stream; and it has been held that one is not entitled to damages for injury to his fishery, l'esulting from the construction of the pier.” But in respect to the streams, which are subject to the cortrol of Congress, because they are used in the conduct of interstate commerce, the authority to construct a bridge may be granted by Congress or the State legislature. If Congress grants the authority, the interference of the bridge with interstate commerce will constitute no objection to the legality of the structure, the determination of Congress that it causes only a reasonable interference with the navigation of the stream being conclusive, in the same manner as a like determination of the State legislatures is, in respect to bridges over streams not adapted for use in interstate commerce. But if the State legislature authorize the construction of a bridge over a stream used in interstate
1 Commonwealth v. Breed, 4 Pick. 460; Dover v. Portsmouth Bridge, 17 N. H. 200; Depew v. Trustees of W. & E. Canal, 5 Ind. 8; Hinois, etc., Co. v. Peoria Bridge, 28 III. 467; Chicago o. McGinn, 51 m. 266 Am. Rep. 295). 2 Tinicum Fishing Co. v. Crter, 90 Pa. St. 85 (35 Am. Rep. 632).
- inasmuch as the interference with interstate commerce by the State is only permissive, and secondary to the primary control of Congress, — the judgment of the legislature, that the bridge causes only a reasonable interference with navigation, which is justifiable by the increased facilities for rapid transportation which the bridge affords, is not conclusive, and the ultimate decision, in the absence of congressional action, rests with the Federal courts, who are deemed to have the power to pass upon the reasonableness of the interference with navigation, and to cause the bridge to be removed, if it is found to interfere materially with the use of the stream in foreign or interstate commerce. But, even after a bridge has been condemned by the court
a because of its unreasonable interference with interstate commerce, Congress may interpose in the exercise of its power to regulate commerce, and declare the bridge to be a lawful structure.?
These interferences with the general navigation of a stream by the public do not constitute the limitation of the State control of streams, which cannot be used for foreign and interstate commerce. Congress has no control over these streams, and it seems to be the universally recognized rule that there is no limit to the power of the State to regulate their use. It is even held to be lawful to obstruct such a stream by the erection of dams, even to the extent of prohibiting navigation altogether. If the person who constructs the dam keeps within the authority given him he is in no way responsible to those who may be damaged by the obstruction.
1 Wheeling Bridge Case, 13 How. 518; Columbus Ins. Co. v. Peoria Bridge Co., 6 McLean, 70; Columbus Ing. Co. v. Peoria Bridge Co., 6 McLean, 209; Jolly v. Terre Haute Drawbridge Co., 6 McLean, 237; United States v. New Bedford Bridge, 1 W. & M. 401. Commissioners of St. Joseph Co. v. Pidge, 5 Ind. 13.
2 Wheeling Bridge Case, 18 How. 421. 3 Wilson v. Black Bird Creek Marsh Co., 2 Pet. 245; Parker v. Cutler