Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1882-04-01

hat the state Of PENNSYLVANIA consented 10 the
prosecution of this suit III its own name This
would seem to be answered by the fact that the pro-
ceedpgs were instituted by the Attorney General u
the State.
And upop this subject to which | was referring
n moment ago the Court says: " The Act OF Vir-
ginia under which the bridge was built, with scru-
pulous care guarded the rights OF navigation. In
the 10Th Section it is declared, that II the said
hridre shall he 50 constructed TO iniure the nayi-
cation Of said river the said bridge shall be treated
as public nuisance, and shall be liable to abate-
ment >" etc.
In sneaking upon this subject the Court says:
Cons ress have not declared in terms that State,
by the construction Of bridges, or otherwise shall
not obstruct the navigation oil the ohlo, Dat they
have regulated navigation upon as before rema ked,
by licensing vessels, establishing ports of entry,
imposing duties upon masters and other officers Of
boats and infcting severe penalties for neglect Of
| those duties, by which damage to life property
has re ulted And they have expressly sanctioned
| the compact made by Virginia with Kentucky, st
the time of admission into the Union, that the
use and navigation OF the river Ohio, so far the
territory of the proposed State, or the territory
| that shall remain within the limits Of the common
| wealth lies thereon, shall be free and common TO
| the cit zens Of the United States. Now, OBJ
| structed navigation cannot be said u be fr O. Ii
was no doubt IN view Of this compact, that in the
charter for the bridge 1t repaired be so ele-
waited net, at the greatestiight OF the water, to
| obs, ruct navigation This compact by the
| sanction of Congress- has become law OF the
| Union No State law hinder or Oh.
struct the free OF license granted under Act
| OF Congress Nor cap any State violate the com
pact sanctioned as IL mas oeen, by oestrGcsug the
! navigation OF the river.
1t is unnecessary for me t. undertake to reld this
| case through. 1t contains, | may say to your
| Honor very comprehensive collection OF all the
authorities on the subject up to that time, OF the
power of Congress TO regulate commerce between
| the several States.
There is an authority in Weber Harbor Com.
missioners, is Wallace, 656e, to which desire to
call ysur Honor's attention, also upon the subject
| Of the power Of the State TO obstruct navigable
| stream-an authority which | missed when was
| discussing that question THIS Il where the
| opinion OF the Court was delivered by Mr.. Justice
| Field Ia which it is said: 1t Is unnecessary for
the disposition Of this to question the doctrine
that riparian proprietor, whose land is bounded
by navgable stream has the right of access TO the
navigable part OF the street In front OF his land and
| to construct a wharf or pier projecting into the
stream for his own use or the use OF Cthers subject
to such general rules and regulations as the Legsla
ture may prescribe for the protection OF the public
as was held in Yates vs.. Milwaukee, 10 Wall, 4pf
On the contrary recognize the correctness OF the
doctrine as stated and affirmed in that ease. Nor Is
it necessary to controvert the proposition that in
several Of the States by general legislation or m
| memorial usage. the proprietor, whose land Is
bounded by the shore of the sea, or ar arm OF the
sea possesses a similar right TO EJECT wharf
or pier in front of his land, extending into
the waters TO the point where they are navgaoie.
In the alb ence of such legislation or usage, how
ever, the common law rule would govern the rights
of the proprietor at least in those ates where the
common law obtains. BY that law the title TO tie
shore Of the sea- the arms OF the sea, and in The
soils under tide water. is, in England, in the King,
and in this country In the State. Any ectlon
thereon. without license, is therefore deemed an
encroachment upon the property Of the sovereign,
it is termed in the language OF the law, pur-
pressure, which he may remove at pleasure whether
i. tend to obstruct navigation or otherwise"
Mr. Justice Field, IN giving bis opinion there,
without undertaking decision OF the question,
seems TO take the same view, 10 extent, that
tale hN no 4 | Federal ReDGrtgr-the
case cited by Judge Waliace-that they were there
simply pursuing mesns Of navigation. They
might pursue 1t by means OF rats, and there they
were pursuing it by means of legs.
But call your Ho1ors attention again to the fact
that in that case three points were deciGnl First
That the State had absclate power over itsnavigabe
streams the General Cover ment not having eXer
cisei its right TO regulate commerce. Second That
| the paintif had shown no special damages Third
That the thing that was being done was but an ex
ercise OF the right to navigate.
Now say that Justice Field, in this case to which
| have just been ca Ing your H0nor's attention,
speaks OF the right OF Congress in the regulation OF
commerce as in one sense right to navigate the
streams The Court says: Upon the admission
of California into the Union upon equal footing
with the original States, absolute proper in, and
dominion and sovereignty over, all soils in the tide
waters within her limits passed to the State, with
the nsequent right to dispose Of the title to any
part of said soils in such manner as she might deem
proper subject only to the paramount right OF nayi
cation over The waters, so far such navigation
with foreign nations among the sevefS' States,
the regulation of which vested in the General
Government" And citing in support of 1t, the case
which have first read to your Honor, in the case
of Mumford Wsrd,ll 90 Wallace, 435) the same
subject is treated Of coneedng to the State, as
recollect it, this power to control its navigable
streams The Court says "Calio rnia was admitted
into the Union September 8, 1850, and tho act Of
Congress admitting her declares that she is so ad
mitted equal footing, in all respects, with the
original States. A settled rule OF law in this Court
10 hat ha ~ raw ah nd
under the same in the original States were not
giant by the Constitution to the United States,
but reserved to the several States and that the
States since admitted have the same rights,
sovereignty and jurisdiction in that behalf as the
original States possess within their respective Dor
deTs. When the Revolution took place, the
people of each State became themselves sovereign,
and in that character held the absolute
right to all their navigable waters and the
soils under then subject only to the rights since
surrendered by the Cons titutOn. The necseary
cusion is that the owners ip Of the lot in question,
when the state was admitted into the Union became
vested in the ktate, as the absolute owner, subject,
only to the paramount ri hit OF navigation"
So your Honor will see that the entire line Of au-
therty is in favor of this proposition End upon
this proposition say we may safely rest this case
That, original power the State possesses all right
in the control of the navgabe streams within her
limits, and that the tedsr Government possesses
powers except those that have been conferred on
ceded to the United States by the several States,
either by accepting the Federal Constitution their
commerce, or by the several Acts under which the
several States have been admitted into the Union.
ask your Honor whether any fair construction
OF the Act admitting California into the Union does
not make that compact between the State and the
General Government. We stand upon the basis
that the State owns the river We foi0~ it up with
a compact between the State and the General Gov
eminent 1t is true that by the Constitution OF the
United States the General Government, upon the
admission of the State into the Union possesses the
power to regulate commerce. But submit to the
learned on 10
possess the power independently of the stipulations
contained in the Act admitting the State into the
Union, under the guise of regulating navigation, to
destroy the navigable streams, by the compact
under which the State was admitted it surrendered
its power to the extent named in the Act and that
it Is required by the stipulatons contained In that
compact to keep the navigable streaxls open and
free for navigation, not only to the citizens Of this
Stats but Of the several States.
ask your Honor, How is this answerabe? If
Congress closes nsyigable stream for the purposes
OF navig lton, it is not open and free to navigation
for the citizens of this State If the several States
If the State impars, by its policy under the
express sanction of its laws the nav gaby Of its
streams they are not open to navigation and Tree TO
the citizens OF this and Of the severalststes
So what is the effect OF this policy which counsel
asserts in this case What is the direct result of
counsels argument in this casef That the great
of California, with It's wise statesmen, its learned
Judges and its great policy Of right, in direct CON
fict with the express stipu atoms contained in the
compact upon which it secured and accepted its adj
mission into the Union is undertaking to establish
policy by inaction and by permission which, under
that Act, it is powerless to estab!ish-which under
that Act it solemuly pledged its homer that it would
not establish maintain.
Now, undertake to say, your Honor, that no
policy can grow up in opposition to this stipulation
undertake TO say, your Honor, that as member
of an independent department of this State Govern
nieut, it is my duty, executive officer, acting
within my powers TO see to the strict enfoi
of the provisions OF that law. l undertake to say
that as q member OF an independent department OF
this Government it is your duty to see 10 the strict
and proper enforcement of the stipuatons contained
in that compact aud that if the legislature does not
desire to act it becomes the duty of the Executive
and Judicial departments to act in order that good
faith may be preserved in this conpact-iu order
that the two Governments may do exactly what
| they agreed to do.
But, asks counsel on the other side, who directs
the Attorney General to proceed against this viola
ton of the Act of admission? Who is it What
authority it that directs the Attorney General 10
proceed for the purpose of preventing this destruc
tion OF the navigabe streams?
Why, counsel said there was no resolution OF
the Executive Depart ment; the other counsel said
there was no resolution OF the Legislative fepart
ment. But it is only necessary for your Honor, |
my self and others, who desire to be informed on
this subject to go to the provisions OF the statute
OF California, made in go faith IN pursuance or
the Act of admission which provides that any per-
who shall violate the Act OF admission OF Cali
fornia into the UnIon shall be deened guilty OF
maintaining nuisance and shall be prosecuted for
q misiemesnor What other direct legislative