Citation Numbers: 19 F. 347
Judges: Deady
Filed Date: 3/3/1884
Status: Precedential
Modified Date: 9/9/2022
This is a bill of review, filed May 27, 1883, and brought to reverse the final decree given in this court on October 22, 1.881, in a suit between the parties hereto, commenced by the de
. On March 28, 1881, an order was made continuing the application for an injunction until the April term, and until the circuit judge should be present; and restraining the corporation in the mean time as prayed for in the bill. Hatch v. Wallamet I. B. Co. 7 Sawy. 127; [S. C. 6 Fed. Rep. 326.] On April 11, 1881, the corporation put in its answer to the bill, alleging that it was a corporation duly formed under the laws of Oregon, and the assignee of the Portland Bridge Company aforesaid; and admitted that it was building the bridge, as alleged, under authority of the act of the legislature aforesaid, except that the draw was 105 feet in the clear, instead of 100, and that the piers were sufficient and at right angles with the current; and denied the same was or would be any hindrance or obstruction to the navigation of the river, or any injury to the defendants herein. At the April term the application for a provisional injunction was further heard upon the bill, answer, and further affidavits and counter affidavits, before the circuit and district judge, the counsel for the plaintiff herein then conceding that the law of the case had been correctly
An application was made for leave to file the bill of review, without first performing the decree requiring plaintiff therein to remove the unfinished piers from the river. The application was based upon a petition or allegation in the bill, stating the grounds thereof. Upon notice to the adverse party it was heard and allowed upon the ground that the performance of the decree, in this respect, would involve large expense and the destruction, so far, of the subject of the litigation, so that if the decree is reversed for error, the plaintiff herein will, nevertheless, suffer an irremediable loss, as in the case of the cancellation of a bond in obedience toa decree. Story Eq. Pl. § 406; Davis v. Speiden, 104 U. S. 83. But I think the better method of making the application is by a separate petition for that purpose, against which the adverse party may show cause and the matter be fully heard and determined thereon. Tlie right to file the bill may depend upon a question of fact not determined or affected by the proceedings or decree in the case, as the pecuniary ability of the party to pay a given sum of money, and therefore the application should be made in such manner as will best enable the parties to be fully heard in the premises. The rule requiring the performance of the decree is said to be “administrative” rather than “jurisdictional,” and therefore a bill filed without such performance or leave would give the court jurisdiction to review the decree; and if the adverse party did not move to strike it from the files, he would be held to have waived the objection. Davis v. Speiden, supra, 85.
The defendants herein demur to the bill, for that there are no errors in the record, nor any sufficient matter alleged in the same, to require a reversal of the decree. The bill contains an assignment of errors, 11 in number, most of which are predicated upon the reasons given in the opinion of the court allowing the provisional injunction, rather than the decree itself, and all but one are simply variations of the allegation that the court erred in deciding that the act of congress of February 14, 1859, was in any degree a limitation or re
The argument of counsel for the corporation, in support of this 'conclusion, is, in substance and effect:
(1) The Wallamet river is wholly within the state of Oregon, and therefore not within the power of congress to regulate or conserve its use as a vehicle, or means of interstate or foreign commerce. Now, this proposition has no countenance or support in either reason or authority. In fact, and for all the purposes of commerce, the Wallamet river is a part of the Columbia, of which it is an important- affluent or branch. Together they form, or help to form, a continuous highway between Oregon and the other Pacific states and territories and foreign countries; therefore, in contemplation of the constitutional grant of power to congress over the subject of commerce between these states and countries, and for the purpose of regulating the same, it is the property of the nation—a navigable water of the United States. The authorities from Gibbons v. Ogden, 9 Wheat. 1, to Miller v. City of New York, 3 Sup. Ct. Rep. 234—a period of 60 years—are uniform and unqualified on this point.
In Gilman v. Philadelphia, 3 Wall. 724, Mr. Justice Swavne says:
“ Commerce includes navigation. The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a state other than*351 those in which they lie. For this purpose they are the public property of the nation, and subject to all tile requisite legislation by congress. This necessarily includes the power to keep them open a,nd tree from any obstruction to their navigation, interposed by the states or otherwise; to remove such obstructions when they exist; and to provide, by such sanctions as they may deem proper, against occurrence of the evil, and for the punishment of the offenders. ”
In The Daniel Ball, 10 Wall. 557, it was held, that Grand river, a comparatively insignificant water lying wholly within the state of Michigan, but emptying into the lake of that name, and only navigable 10 miles from its mouth to Grand Rapids, for a boat of 123 tons burden, is a navigable water, of the United States, and subject to its control as a highway of commerce, interstate and foreign, on account of its junction with Lake Michigan, of which it forms a part. In delivering the opinion of the court, Mr. Justice Field said (page 5(53) the common-law test of the navigability of a river—the ebb and flow of the tide therein—does not apply to the rivers of this country:
“Those rivers must be regarded as public, navigable rivers in law which are navigable in fact; and tliey are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water; and they constitute navigable waters of the United States within the meaning of the acts of congress, in contradistinction from the navigable waters of the states, when they form in their ordinary condition, by themselves or by uniting with other waters, a continued highway over which commerce is or may be carried on with other states or foreign countries in the customary modes in which such commerce is conducted by water.”
In Encanaba Co. v. Chicago, 107 U. S. 678, [2 Sup. Ct. Rep. 185,] it was held that the Chicago river, lying wholly within the city of Chicago, and a little local stream, compared with the Wallamet, is a navigable water of tlio United States, because it leads into Lake Michigan; and in Miller v. City of New York, supra, the same rule was applied to the East river, a water wholly within the state of New York, but connecting the Hudson and the sound, and therefore a highway of interstate and foreign commerce. Mr. Justice Field delivered the opinion of the court in both these cases, and referred to and relied on the above citation from the opinion of the court in the case of The Daniel Bell. See, also, Hatch v. Wallamet I. B. Co., supra.
(2) That if congress has the power to regulate the navigation of the Wallamet river, as a navigable water of the United States, it cannot do so by a special act, as the statute of 1850, applicable alone to the waters of Oregon, but only by a general law, which shall operate uniformly upon all such waters in the United States. And this proposition is also without a shadow of foundation in either reason or authority. It is rather late in the day to question the right of congress to exercise its authority over the navigable waters of the United States, specially,—from time to time and place to place,—as
The vice of the argument in support of each of these propositions is the assumption that the navigable waters within a state are exclusively the waters of such state, and therefore congress has no power over them; or, if it may legislate concerning them in the interest of commerce, it can only do so by such general legislation as shall limit or affect the power of each state in the premises equally, so as to preserve, ■as it is said, its “equal footing in the Union with the other states.” But, as we have seen, this theory of the matter is founded upon a total misapprehension of the relation of the national and state governments to the subject and to one another. Eor the purposes of commerce, and the exercise of the power of congress over that subject, every navigable water in the Union which of itself, or by means of its connections, forms a continuous highway for interstate or foreign commerce, is primarily the navigable water of the United States, over which it has the same power for the purposes of such commerce as if it was wholly in a territory or the District of Columbia. When and how far congress will exercise this power is a question for its determination in each case, looking to the public convenience and general welfare. In the exercise of this, as in the case of other congressional powers, no such thing as uniformity of action is desirable or attainable; and it is also to be considered that what is lawful may not always be expedient.
(3) That congress has no power, in the admission of a state into the Union, to impose, by compact or otherwise, any limitation or restriction on its powers or rights as a state, under the constitution; and therefore the act of 1859, admitting Oregon into the Union, so far as it attempts to restrict its power over the navigable waters within its limits, is void and of no effect. But admitting the prem-. ises, the conclusion does not follow. Although the grant of power to
But the clause in section 2 of the aclfc of 1859, declaring the navigable waters in Oregon to be “common highways,” is no part of these propositions, and does not even purport to derive its force or vitality from this or any compact, but solely from the fact that it is an act of congress, duly passed by it in pursuance of its power to regulate commerce. The admission of the state and the enactment of the regulation are simply coincident in point of timo. The one was admitted unconditionally and the other enacted absolutely; and the regulation might have been enacted on the day before or the day after the admission, or at any time since as well as then. But even if it had been made a condition of the admission of the state into the Union that the people thereof should consent to this .regulation, it would nevertheless be valid, as an act of congress, because that body had the power to pass it without their consent. Their consent would add nothing to its force or validity. In the leading caso on this subject of Pollard v. Hagan, supra, the court say (page 229) of the following declaration contained in the compact entered into between the United States and Alabama, upon the admission of the latter into the Union, “that all navigable waters within the said state shall forever remain public highways, free to the citizens of gaid stale and the United States, without any tax, duty, impost, or toll therefor, imposed by the said state,” (3 St. 492,) that it was nothing more than a regulation of commerce, and, as such, a valid and binding act of congress, without reference to the supposed compact or the consent of the people of Alabama.
(4) That the provision in section 2 of the act of 1859—“all the navigable waters of said state [Oregon] shall ho common highways
Counsel for the plaintiff herein contend that the words “common highways forever free, ” taken in connection with the rest of the sentence, show that the paramount purpose of this legislation “was to prevent any discrimination between the citizens of the United States,” in the imposition of tolls on account of the navigation of the river. But there is no ground for this construction, for plainly the clause does not rest with the prohibition of discrimination in the imposition of such tolls, but goes further, and prohibits th'em altogether, as well in the case of the citizens of the state as of the United States. But the clause contains two distinct provisions—the one an absolute prohibition against the imposition of tolls for the navigation of the river, and the other a declaration that the river shall remain a “common highway” for the use of all the citizens of the United States. The two things are separate and distinct, and one is not to be considered the mere adjunct or amplification of the other, because it is found in the same sentence. The maxim, noscitur a sociis, does not apply. And if either provision can be considered as subordinate to the other, it is
A declaration or act of the congress of the United States that a navigable water thereof shall be a “common highway,” imports, exvi term ini, that such water shall not be closed up or obstructed by dams, booms, bridges, or otherwise, so as to materially impede or hinder the navigation of the same. And being a highway, no toll can be charged for travel thereon, except by consent of the sovereign power which declared and made it such,---the congress of the United States,—and they have been forbidden it to be done. The plain purport and effect of the statute is this: (1) The Wallamet river is declared and made a “common highway” for the use of all the citizens of the United States; and (2) it shall be a “free” highway, upon which no toll, tax, or impost shall be charged. Being a “common” highway, it is open to all citizens; and being also “free,” it is open to them without toll or tax. From these premises, the conclusion follows that any obstruction to the navigation of this river, wdiich materially impairs its use as a “common highway,” is contrary to the act of congress, and therefore illegal, whether authorized by the legislature of the state or not. It also follows that a case involving the question whether any bridge or other structure is such an obstruction, is a case arising under a law of the United States, and therefore within the jurisdiction of this court. Act of 1875, (18 St. 470.) The court then had jurisdiction to hear and decide the question whether this bridge is or would be such an obstruction to the use of this highway as is forbidden by the act of congress. Whether it properly decided the question or not is a matter depending upon the circumstances of the case as disclosed by the evidence, and cannot be considered in this proceeding. The way to determine that is by an appeal from tire final decree in the original case to the supreme court, where the whole question can be considered on its merits. And in this connection it should be remembered that the court did not decide that the act of 1859 prohibited the erection of any bridge across the Wallamet. It prohibits, of course, the erection of a low, solid bridge, for that would be an impassable barrier—a complete closing of the highway. And it is equally certain that it does not prohibit the erection of a high, suspension bridge under which vessels navigating the river might pass without hinderance or delay. Neither does it prohibit a low bridge, properly constructed with a good and sufficient draw, through which vessels may pass without unnecessary danger or delay—the commerce, size, and condition of the river, as well as the state of the art of such bridge building being taken into consideration. It is well known that all highways, whether of land or water, are subject to bo crossed by other highways. The commerce of the country cannot he conducted on parallel lines. But w'here and in what manner such crossing shall
But the court found upon the evidence that, all the circumstances considered, the' draw of the proposed bridge was altogether inadequate; that it ought to be at least 150 feet wide on either side of the pivot pier, as provided in the'act of congress of June 23, 1874, (18 St. 281,) authorizing the Oregon & California Railway Company to bridge the river at this place; and therefore it was a material as well as needless obstruction to the navigation of the river, causing danger and delay to the passage of vessels thereon. Neither did the court hold that such a bridge was even authorized by the act of the legislature of October 18, 1878. That act requires not only that the bridge shall have a draw of not less than 100 feet in width, but that it shall be “so constructed and maintained as not to injuriously impede and obstruct the free navigation of said river, but so as to allow the easy and reasonable passage of said vessels through said bridge.
Upon this point the conclusion of the court was that the legislalature did not intend to declare that a draw of only 100 feet in width is sufficient, or to authorize the construction of a bridge otherwise than with a draw sufficient for the easy and safe passage of vessels, whether that must be one or two hundred feet in. width, but that if it did, the act was invalid, because contrary to the act of congress, ' which on this point is the supreme law of the land. Hatch v. Wallamet I. B. Co., supra.
And in this connection the court is reminded by counsel for the plaintiff herein “that it is a delicate duty for a court to declare an act of the legislature invalid.” Of course, the court will not do so unless the conflict between it and the act of congress is plain. And for this reason the act of the legislature is to be constyued, if it reasonably can, so as to prevent such conflict, and make it harmonize with supreme law. But really it is well to remember, in a case like this, that the interested parties who prepare and procure the passage of an act granting themselves some special privilege or franchise like this are more responsible for it than the members of the legislature. The average member, having no special interest in the matter, and knowing little, if anything, about it, but seeing that the act contains a plain provision that the bridge shall be built with a good and sufficient draw anyhow, with that understanding gives his consent to its passage; and I think it ought to be so construed by the court. Considered in this, its true light, the act is only a license to the corporation named therein, or its assigns, to build a draw-bridge at this point, subject to the act of congress of 1859; or, in other words, so as not needlessly to impede or obstruct the navigation of the river, considered as a “common highway. ” Beyond this the legislature could not go, and it is not to be presumed that it so intended.
The decision in Escanaba Co. v. Chicago, supra, so much relied on by the plaintiff herein, is not in conflict with these views. In a legal
The cases cited in support of this latter conclusion are Pollard v. Hagan, 3 How. 212; Permoli v. New Orleans, Id. 589; and Strader v. Graham, 10 How. 82. By the first one, as we have seen,.it was simply held that congress cannot, by any compact or condition made with or laid upon a state on her admission into the Union, restrain or limit her municipal power as such state, but that, if the subject of
“Eor thirty years, the state courts within the territory ceded by Virginia have held this part of the fourth article to be in force and binding on them respectively; and I feel unwilling to disturb this wholesome course of decision, which is so conservative of the rights of others, in a ease where the fourth article is nowise involved, and when our opinion might be disregarded by the state courts as obiter and a dictum uncalled for. ”
And- as we have seen, the only question decided in Permoli’s Case was that the clause in the compact securing religious freedom to the inhabitants of the territory was necessarily superseded upon its admission into the Union as a state, while it is admitted that the principle
I, therefore, respectfully submit that the clause in the fourth article of the compact in the ordinance of 1787, relating to the navigable waters in the Northwest territory, having been enacted by congress, (1 St. 50,) was a valid commercial regulation as to the navigable waters in said territory or the states afterwards formed therein until repealed by it, and therefore it is still in force in Illinois. But be this as it may, tho decision does not touch the question of the validity or force and effect of the act of 1859. For on what possible ground can it be claimed that tho admission of Oregon into the Union set asido or superseded an otherwise valid clause in the very act of admission, declaring the navigable waters of the future state “common highways ?”
This case, having been, heard before tho circuit judge, and the decree under review having been made by him, I thought I ought not to decide tho matter without consulting him. Accordingly, I submitted this opinion to Judge Sawyer, with copies of the briefs of counsel, and he has authorized me to say that he concurs in it.
There being, then, no error in the original decree, as it appears to this court, the demurrer to the bill of review must be sustained, and tho bill dismissed, and it is so ordered.
Reversed. See 8 Sup. Ct. Rep. 811.