The New York herald., 1878-09-14
GARBAGE DUMPING.

OPINION OF THE SOLICITOR ON TIE PowERe
OF THE GENERAL GOVERNMENT TO PREvENy
oBsTRUCTIoNs IN THE HARBoE-ADDITIoNAL
LEGISLATION DY CONGRESS RECOMMENDED.
WASHINGTON, Sept 13, 1878.
judge Raynor, the solicitor OF tho Treasury, has
rendered opinion to tho Secretary Of the Treasury
the dumping OF refuse matter in tho waters
OF the of tho entrance to Now YORK har.
bor From letters and papers sent to him by the
Secretary OF the Treasury 1t was impossible TO locate
any particular point whore the refuse Is dumped 1t
was apparent however, that It not In sde OF Sandy
Hook and not within tho municipal authority
Of the city oil New York. Such being tho
case he deemed II necessary to confer with
the Naval Secretary OF the Lighthouse Board to
ascertain nearly possible the location where this
dumping is dono, aud also whether any real injury
70 navigation s or Is likely to be accustomed by It.
Resulting from this conference Commander Dorsey
wrote TO General Newton, lieutenant colonel oil en-
rineers II appears FROM General Newton's rcpiy
nat tho d,scnarge OF refuse matter made within
the channel at the entrance OF New Y 0rk harbor,
and in opuion will injury TO navigation by
incr easing tho shoals OF the Oar and by causing p
terror deposits to be formed.
POWERS THE GOVERNMENT.
Tho Solicitor argues that under the constitution OF
the United States and .hc decisions Of she supreme
Court the power TO regulate commerce Win foreign
natiens and among the States. aud 20 pass all laws
necessary 10 enforce this power, necessarily includes
the power TO Keep thom open aud FREQ from any OBJ
to their navigation nserposed by the States
or otherwise remove such distractions when they
exist and provide by such regulations they may
deem proper against tho occurrence oil the evil aud
Tor tn. pun OF tho offender No doubt there.
fore can exist judicial power OF the United
States will to tins OF obstruction TO navi-
gsbIe wsors ana narbors of the United Slates
Solicitor upon careful exam natlon hnds no statute
law OF the United States making It "a msdemeanor or
crmiua offence TO obstruct the channels Of the sea
passing into harbors, ani IL Is fundamental doctrine
IN respect ieiera courts OF inferior jurisdiction
that they cannot take cognzance Of criminal onence
discretion OF positive law To enable them TO exercise
the functions bestowed by tho constitution over
tiou by POSITIVE law oi the offence and tho tribunal
which shall take cognzance of IT, IL follows, there
torc, that the obstruction 10 commerce Ia tns case
cannot DO prosecuted crninally or without nrst n
vokiDg prevention and remedial legislation rom Con
gress.
''can any remedy be found on the civil side OF the
federal courtss suppose the place where me oo-
noxious deposits ore made 10 be within a marine
league from tho shore aud sufficiently within the Iine
oil head lands 10 ruisc no question oil Jurisdiction"
QUESTION OF INJUNCTION
"Upon some examination Of authorities, ana az ~
present ADVISED, am OF opinion that oil may DO
nlcd behalf OF The United states in It's own coursss
struc,ug The cnnnneis to New York harbor and that
upon proper Testimony ofexperts such as that oil 0sn
Newton, the court would IN all proosoiity enJoin
tho parties defendant IN such q proceeding from
making the deposits In these channels, or en)oih
them temporarily uEti proper Legislation Of Congress
All question OF giving 6ond Tor Injunction Is avoided
Uy section ,001 OF the Revised Statutes IL is appar
ent, however, that such injunction II granted, car
only roach parties detcndans IN tho case now en-
gagged In dumping refuse, and that aficrward Others
may bc employed or engaged IN tno same occupation
so that II might involve constant proceedings and
great expense such proceedings, Also must be sane
toned by Attorney General 10 enable tho District
Attorney TO receive compensation not otherwise pro-
vidod service which is not part OF his ordinary
duties."
DUTY OF THE CITY OF NEW YORK.
~ have abstaincd what have said from any dis
cusson OF tho jurisdiction oil tho State OF New York.
n any, that question not coming within your rcier
ence subject to but would In this connec.
ton suggest the deposits complained OF may 6nd
IN all probability arc mado by persons who are con-
tractors for this with the street Commission
ers OF New YORK other municipal officer or com.
missioL, and, II so, IL Is within tho power oil tue
muncipality-a body whose people are most inter.
ested this mattcr--to require MI agreement anu
covenant that deposits Of refuse shall not be made
within limits which will obstruction to its har
Dor and It's channels, ana enforce this covenant oy
ample bonds for ITS quo fuldimcnt
A REYERENCK TO CONGRESS-.
"Under all the circumstances aud considerations re-
fcrrod approach Of the sitting OF Con.
gress must advise thai the department should tako
no i'm mediate proceedings but that the whole matter
should be brought early attention OF CobgresS
and that body be asked 10 pass remedial ana pre-
ycntivc laws Tor protection OF commerce In this
regard H. however, you OF opinion thas tho dam
ger 10 com mcrce IS imminent and an Immediate
remedy IL necessary, WILL by your drcction confer
with the District Attorney In Now YORK, ana under
the sanction OF tue Attorney General take such legal
stems us mature consideration may suggest"