Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1882-03-09


ed right to regulate commerce, may de-
stroy the streams themselves? Congress is
limited to the regulation of commerce, to the
promotion OF Commerce, not TO its hindranca
ard destruction. He threw down the cha-
lenge for the production of q line OF authority
to the contrary, But in regulating COM
marco on rivers between States, Congress
has conceded powers, and may compel the
States to keep open the rivers, but he de.
manded single. case to be cited of Con.
gress ever having closed, or permitted
the closing of such stream. The matter is
settled BY the Act admitting California to
the Union, and the miners came thunder it AMI
accepted it, and themselves made law pro-
hibiting obstructions in the navigable streams.
In this case i is not charged the defendants
are committing a nuisance, but their acts if
longer permitted will create public NUS
ance. La the law made and accepted by the
miners, they declared that the navigable
streams should be forever free and
COMMON HIGHWAYS,
And free Of tax, imposs or duty. We are not
to the placing of debris Ia the car
yons, nor to the pursuit of the mining indus
try, nor to the damming of the American river,
but demand only that defendant desist from
destroying navigable stream and destroying
the commerce of the country. II, as they
say, they can dam the canyons and hold the
debris for 81 en- S400, ia Gods name lot them
do it. 1t has been only few years since it
has developed that certain methods OF min
ing were destroying nsvigab!e streams. The
customs they claim to have grown up may be
conceded in all their fnllness, and all the
ccmmon.llw rights they claim yet when the
State came into the Union and the State
made compact with the Federal Govern.
meDt and in it pledged themselves that the
navigable streams should forever remain open
and free, the
MINERS YIELDED, SET ASIDE AND ADVOCATED
Every Custom, usage and law ia conflict with
that solemn conpact, and waived all possible
prescriptive rights as TO the streams thereto.
fore obtained, though plaintiff denies any
were gained "a claimed. The rights under
that compact must be maintained by TIE
State on its part, just 81 the United States
on It's part will enforce it. 1t being the duty
of the State, the proper officer, the Attorney
General, found it his duty to proceed as he
did to protect the navigable streams. In
How, Pollard's Lessees, Alabama was ad-
mitted under compact that her nayigable
rivers should forever be open and free
from tex, impost or assessment, etc.
He cited the case as in point showing that
defendant draws no power from the Federal
Government to interrupt navigation, and
cited several other cases TO show the author
ity OF the State over the navigable streams
AS an original power the State possessed all
lignc Oh contrei Vi NJ, Tue hsVigaoie streams
wl'hih her huilts; Iaas the federai u"V-
erhunshS eAs,ciseu ana possessed no powers
over ohe'h NOT ceoeo TO II airectiy by cont
pacg ana contract IN the Act OF ADMISSION to
sns mon, anu Cnas IS iiniIeu 10 the fe2uiH'
9'oh Oh coln.hefcs, anu sucn mas oeen tne faie
ID all the oSatss aamlsted into the uhion.
THIS COMPACT BINDS THE GOVERNMENT
To respect the navieable streams, tn they
may remain open and Tree Tor payigatiop foe
aver Ii, therefore, 1t be admitted thai
nights were granted by permission or aequt
escence prior to admission, the Federal Gov
=rnment surrendered all when It entered into
hat compact, and no policy can grow up
luder that compact IN contravention or 1t,
md it Is the DUTY OF the Attorney General
and the Court to see tEat the contract In that
compact Is kept. The Act OF admission IL al
rect legislative mandate III it must be that
such Is necessary to the Attorney General
20 proceed to enforce that compact, and
Keep the parties thereto to tbs spirit
II the contract: When these defend
ants are hiliug and choking the navigab.e
streams OF the state when the people
,hrong the ofhces OF State petItlonlng tor
e Why Poiuo ou' 'n's'
heir highway Is being destroyed, their lands
and homes ruined and buried, their farms,
orchards and gardens plotted out-shail the
Attorney -General await legislative authority
before proceeding to determine II these peo-
pie have remedies? Blackstone l222) says
there can be no prescription where there
could be no grant The powers of both
Governments combined, State and Federal,
were not sufficient under the Act of adnis-
sion, to make the grant to do what defendant
aims it has the right to do.
CUSTOM Is A LAW,
Rrt Iaw cannot contravana tho Cor,+i,r-
lion Whatever the cnstoms under Waxic,
were We rnade a CoSst;tntion of on- opu
that ia snnrerne- Counsel nointa5 70 tbe ev.
idence ia the case as establishing the alleged
injury to the Sacramento river by reason Of
1t being hllsd, and OF The destruction OF