Dunlap v. Commonwealth , 1885 Pa. LEXIS 364 ( 1885 )

Mr.' Justice Gordon

delivered the opinion of 'the court, March 30th, 1885.

The only question in this case is one of jurisdiction, for the 40th section of the Act of June 3d, 1878, in express terms provides that its provisions shall not apply to any stream forming the boundary line between this state and any other having a concurrent jurisdiction over such stream, nor to any lake partly within the boundaries thereof. Hence, without troubling ourselves' about the question of repeal by implication, we conclude with the learned judge of the court below, that the local Act of May 16th, 1878, is operative if the State of Pennsylvania has jurisdiction oyer any part of Lake Erie. But on this subject we have no doubt whatever; we are, indeed, surprised that such a question should have been raised in the court below, and have been thought worthy of discussion in this court.

When the government of the United States ceded to Penn sylvania the triangular tract on Lake Erie it retained nothing and in the resolution of cession it was expressly declared that the laws and public Acts of the said state should extend to every part of said tract, to all interests, and intents and purposes as if the same had been within the charter bounds of the said state. But had it been originally within the charter bounds of the state there could be no doubt about its jurisdiction over the adjacent waters of the late. It was only after the Act of Congress of February 26th, 1845, that even an admiralty jurisdiction was claimed for the United States over the waters of the lakes, and the constitutionality of that Act was seriously doubted until it was settled in 1851 by the Supreme Court in the case of the propeller Genesee Chief v. Fitzhugh, 12 How., 443. Previously to this time the doctrine was held, as established by the cases of the Thomas Jefferson, 10 Wheat., 428, and the steamboat Orleans v. Phoebus, 11 Pet., 175, that the jurisdiction did not extend beyond tide water. It is, therefore, obvious that previous to the Act of 1845 the courts of the states bordering on the great lakes must, ex necessitate, have had jurisdiction over them to the treaty line, for it could not be that they were altogether without law, and that crimes of every character could be committed thereon with impunity.

Indeed, we must regard the decisions in the two cases last above cited as declarative of the exclusive jurisdiction of the states, whilst the case of the Genesee Chief v. Fitzhugh put the jurisdiction of those states bordering on or having in them navigable rivers and lakes on precisely the same footing as those on the seaboard. But the general jurisdiction of these over their adjacent tide waters has never been doubted. There is not now, and never has been, any room for such doubt. The states, immediately before the adoption of the Federal Constitution, were independent sovereignties, and as such had right over the seas of their coasts to the extent of a marine league from the shores. Upon the adoption of that Constitution there was a partial surrender of this right, in that it was provided the judicial power of the Federal courts should extend to all admiralty and maritime cases. Nevertheless, as was said by Mr. Chief Justice Marshall, in the case of the United States v. Bevans, 3 Wheat., 336, “The general jurisdiction over the place, subject to this grant of power, adheres to the territory as a portion of sovereignty not yet given away.”

Hence, in the case cited, it was held that where a homicide had been committed by a marine on board a United Statesship of war, anchored in the Boston harbor, the courts of Massachusetts had power to arrest and try the offender, and this, not because Congress had not the power by its legislation to- bring a crime thus committed within the jurisdiction of the Federal courts, but because it had not so legislated. As an illustration of the power of a state to enforce its laws over its tide waters, notwithstanding the maritime jurisdiction of the United States, the learned Chief Justice asks the question: If two citizens of Massachusetts should step into shallow water, when the tide flows, and fight a duel, are they not within the jurisdiction and punishable by the laws of that state ? There can, of course, be but one answer to a question of this kind. Yet this question may be just as pertinently put with reference to the waters of Lake Erie. In support of this same hue of argument may be cited the language of Mr. Chief Justice Tanby, in the case of Martin et al. v. The Lessee of Waddell, 16 Pet., 367, that when the Revolution took place the states themselves became sovereign, and as such possessed the absolute right over all their navigable waters, and the soils under thorn, and that they are, even now, so held subject to the rights surrendered by the Constitution to the general government. The case of Dunham v. Lamphere, 3 Gray, 268, though not of equal authority as the cases above cited, is undoubtedly sound law, and is directly in point. It was there held that an Act regulating the time and manner of taking fish in the sea, within a mile of the shore, is within the authority of the State Legislature, and binding on citizens of other states, and on vessels enrolled and licensed as fishing vessels under the laws of the United States. One of the authorities cited in support of this ruling is Bennett v. Boggs, Bald., 60, where it was held that a law of Delaware prohibiting the use of a gil ling net in tide waters within the limits of the state, was valid, and that the legislature had power to regulate the fisheries in the Delaware by- the prohibition of a common law right.

Thus, from what has been shown, it follows: (1) By the Act of cession the jurisdiction of Pennsylvania over the waters of Lake Erie, adjacent to the ceded territory, is the same as though that territory had been embraced in the original charter to William Penn. (2) That the legislative powers of this Commonwealth over these waters are absolute, except so far as they may be restrained by Congress for the purpose of carrying into effect the admiralty and maritime laws of the United States; and (3), The consequent of the above-stated proposi tions, the jurisdiction of the Commonwealth to regulate fisheries in these waters, in the absence of auy Act of the Federal Legislature abridging it, is plenary, and cannot be called in question by any other power short of the Government of the United States.

The judgment of the Court of Quarter Sessions is affirmed.