The Indianapolis journal., 1904-03-01
RIVER OWNERSHIP STATUS
FIXED BY SUPREME COURT
Justice Holmes Gives Decision OF
Great Interest to Indiana Par
. ties, Many Being Affected.
OLD FINDING REVERSED

here yesterday. The Supreme Court, in It's
decision. reversed former judgments and
decided I'm favor of Indiana.
Justice oliver Wendell Holmes rendered
the decision, which is one Of the new JUS
tees most important cases. The decision
follows:
Mr.. Justice Holmes delivered the opinion
of the court:
This is a writ OF error TO Circuit Court
OF the State of Kentucky a judgment
entered there in pursuance OF mandate
of the Court OF Appeals OF that state pVi
Ky. 210, 6S5.) The action was DrOuBht upon
an Indiana judgment. The answer denied
the jurisdiction of the Indiana court 1t
was not disputed that the service in that
suit was on a steamboat in the ohio river
on the Indiana side.
AT the trial two questions were left TO
the jury, one whether the person purport-
ing 10 at as the attorney OF the defendant
in the Indiana suit was authorized 10 repre-
sent him, and the other whether the sum
mons in that suit was served on the IN
diana o. Kentucky side Of the low mark
OF the ohio river where it touches. the In
diana shore. The jury found against the
authority of the alleged attorney, and
found that the service on the Kentucky
side of the low-water mark, and there
fore, IL is assumed, within the boundaries
-.Thereupon the plaintiffs in error 0he
original plaintiffs) moved for judgment,
notwithstanding the findings OF the jury.
excepted and appealed. The Court of APP
peals sustained the exceptions and ordered
a Judgment on the verdict dismissing the
action. a Judgment was entered as or
dered, in the court below, the above-men-
TONED Circuit Court, and this writ of error
was brought
INDIANA JURISDICTION AT ISSUE.
1T is suggested that the writ of error
should have been directed to the Court of
Appeals. But it appears from the form of
t,A r1o o4 fhaF baf ha O.
mained in the lower court where judg-
ment was ordered to be entered, and the
writ properly ran to the court where the
Judgment had TO be rendered. Rothschild
VS. Knight. 1s4 U. s., ga. 1t is suggested
further that the record does not show
federal question But the jurisdiction of
the Indiana court was put to issue by the
pleadings, and it IS apparent from what
had been said that the decision went on
denial of that jurisdiction because OF the
y place of service.
s.That denial could be justified only on the
ground that the compact or virginia ana
the act of Congress of Feb 4. 11yl, ad-
mitting Kentucky to the Union, did not
confer the right OF jurisdiction which the
Indiana court attempted TO exercise and
which the State of Indiana claims. The
Judgment and the opinion of the Court of
Appeals both disclose that the decision was
against the right under the statutes re-
ferred TO, and that it was on that ground
only that the Indiana judgment was denied
any force or effect.
THE question as TO the right of juris-
diction sufficiently appears San Jose Land
and Water Company VS.. San Jose Ranch
Company, 1S9 q. s.. Ia, 1S0. 1t is not denied
that that question is one which can be
taken to this court Pennsylvania VS. Wheel
ing and Belmont Bridge Co., lS How. 5lS,
RIVERS USE is FREE.
"we pass to the question decided by the
Court of Appeals In 1883 the State of Vir-
Xrfs--
ghia compact This statute proposed the
erection of the district or Kentucky into
an Independent State upon certain condi-
tions. One of these was: Seventh that the
use and navigation of the river Ohio. so far
as the territory of the proposed State, or
the territory which shall remain within the
limits of this commonwealth lies thereon,
shall be free and common to the citizens of
the United States. and the respective juris-
dictions of this commonwealth and of the
proposed State on the river aforesaid,
shall be concurrent only with the States
which may possess the opposite shores or
the sail river. 13 Hening, St. at l.. II,
tThe previous cessiOn by Virginia of its
rights III the territory northwest of the Ohio
had Been on condition that tine territory so
ceded should be laid out and formed into
States Act of Dec. 70, 1888, IL Hening, St
at l. 326. The act OF Congress of Feb. A.
1871, c. 4, Stat lS9. consents and enacts
that the District of Kentucky within the
jurisdiction of the said commonwealth of
Virginia, shall be formed into new State
and admitted into the Union. AS a prelimi-
nary IL recites the consent of the Virginia
Legislature by the above act of 1881
Under Article 4. Section ;. of the COnsti-
tuition, a new State could not be formed in
| this way within the jurisdiction of Vr-
ginia, within which Kentucky was recog-
ntzed as being by the words last quoted
| without the consent Of the Legislature of
Virgins as well as of Congress. The need
of such consent also was recognized by
no oil In ~ Of fnuar
"But as the consent given by Virginia
was conditioned upon the Jurisdiction of
Kentucky the Ohio river being concur
rent only with the States TO be formed on
the other side. Congress necessarily as
sented to and adopted this condition when
IL assented to the act In which il was con-
tained. (Greensvs. Biddle. Wheat l. So
Thus. after the passage of the two acts,
II stood absolutely enacted by the powers,
which between them had absolute SOW
ereignty over all the territory concerned.
that when States should be formed on the
opposite shores of the river they should
have concurrent jurisdiction on the river
with Kentucky This compact by the sane
tion of Congress. has become a law of the
Union. What further legislation can be
VS.. Wheeling a. Belmont Bridge Company,
IL How. sis. 566.
COMPACT Is GOOD LAW.
1T hardly Is necessary to be curious or
technical. when dealing with Iaw-makng
power In inquiring precisely what legal con-
ceptions shall be invoked in order to bring
TO pass what the Legislature enacts. If the
lawmaking power says that a matter with
IN its competence shall be so, so it will be,
so far as legal theory is concerned, with
out regard to the elegantia juris, or
whether il fits that theory>or not
But there Is no trouble in giving the
subsequent formed States the benefit of this
| legislation. In the case of Kentucky the
compact which the Virginia statute has
been treated by this court as creating.
Green VS.. Biddle, Wheat. l. Is, 90 90 may
be regarded as having been the first stage
not only a law but a continuing offer to
the expected new State when il should
come into being, which was accepted by
thai State when it came into being on the
terms prescribed.
And so as 10 the new States to be formed
thereafter on the other side of the river. IL
Is true that they We're stra ngers to the
most immediate purposes of the transac ctiou
But II must be remembered thai this was
legislation. and when il is enacted bv the
scVeretgn power that States when
formed by that power, shall have z certain
jurisdiction, those States as they come into
existence fall within the range of the enact
ment and have the Jurisdiction
HOW TO CONSTITUTE COMPACT.
Whether they be said to have il by way
OF acceptance OF an Offer or on the theory
OF a trust for them. on the ground tina I
jurisdiction was attached to the land sub-
Ject To the condition that States should