The Cairo bulletin., 1911-02-07
arious political subdivisions so az

various political subdivisions so af-
[ected
In matters of national import there
might be ample justification for the
government of the United States pro-
ceodiug without reference to the
wishes OF the state of Illinois, but
where the same concerns merely a
matter of local Improvement to be
made upon the part Of private indl-
viduals every reason suggests that
the wishes 0f the state of Illinois and
, it's political subdivisions, so far as
may be, Shall be respected
The supreme court of the state of
| II inois has passed upon the effect of
these permits, and it has said in the
case of Cobb VS.. Commissioners CT
| Lincoln Park, 202 III 4S7.
appellant also claims that by vir-
! tue Of the license from the secretary
OF war he is entitled 10 build this
wharf because, as he says, a license
from the eXecrtiye officer of the gov
ernment to build this wharf means
permission and authority from the
United States government to to so,
/ and such permission and authority
being granted, neither the state nor
any of it's agents has any control over
the subject matter.
! He refers to the river and harbor
art of congress of Sept. 10, 1890 (26
Stat. at Large, chap 907, j. 4,@) a5
sanctioning his cOEteation. Section Z
! Of this act was superseded by sections
8 and 10 of the river and harbor act
Of March 3, 1899 go Stat at Large,
chap. 425, PIP 1921, 1l5t)
Section 10 of the latter act is as
! follows: That the erection of any
obstruction not affirmatively author
lied by congress, to the navigable ca
pacity of any of the waters of the
! United States is hereby prohibited,
and it Shall not be lawful to build or
commence the building of any wharf,
pier, dolphin, boom, weir, breakwater'
b,Hkhead, ietty or other structure in
anv port, roadstead, haven, ha~bor,
j navigable river or other water of tie
/ United States outside established har-
Dor lines or where no harEor lines
nave been established, except on
! plans Aended by the chief of
engineers AMI authorized by the csc
rotary of war, and il shall not be
lawful to eXcavate or fiji, or in any
manner alter or modify the course,
| location, condition or capacity of any
| port, roadstead, haven, harbor, canal,
| lake, harbor of refuge or enclosure
within navigablc water Of the United
| States unless the work has been re-
commended by the chief of engineers
and authorized by the secretary Of
war prior to beginning the case
"These provisions OF the law Were
designed TO protect the nayigahle
waters of the United States frof en-
Icroachment and from distractions to
navigation aud commit the duty OF
their protection to an officer of the
| general government without whose
permission no structures can be cree
ted in 5hem
'It Is conceded that the power ot
congress over the ndWgable waters
of the country is derived from the
commerce clause in the constitution
of the United States, and that II is
exclusive and paramount whenever
congres mas definitely spoken on any
subject under its jurisdiction.
"It has been held by the federal
l2ourts thatwhen congress has author
fized the erection of a bridge it is not
| necessary to obtain the consent of the
| state authorities for its erection, and
that no compensation need be made
/ to the state for the use of its property
in the lands under water (Stockton
VS.. Baltimore and New York Railroad
[Company, 90 cd. Rep. 81, and that an
Individual has no claim for compensa
tion when the general government
erects piers on his submerged lands ii
all of navigation and thus cuts of
his access to the water (Scrantor
VS.. Wheeler, 179 u. s. 141)
But, however that may be, we are
of the opinion that the act prohibit
ing the erection of wharves without
the consent of the secretary of wal
is mere regulation for the benefit
OF commerce and navigation, and that
tho license or permission of the sec
retary of war is only finding and
declaration of such officer that such
proposed structure would not inter
Ifere with or be detrimental to navi
cation, and not that it is equivalent
to a positive declaration by the au
thority of congress that licensee may
build the wharf or other structure
without first obtaining the consent OF
the owner Of the submerged land OF
watch 1t is his purpose to build.
Appellant not having by the law
of this state the right to construct
wharf over his neighbor's submerge,
lands without his nelghbors consent
could not acquire that right wthou
his Deighbor's consent by obtainins
a license from the secretary of war.
We are further strengthened il
tals view by section II of the act o
congress of 1899 Ga substantial re
4 fG.