Evening journal., 1912-06-14

steamboat, vessel or other craft at the
same, and to demand. take. sue for.
and recover reasonable wharfage. de-
murrage, rent or dockage OF and from
any steamboat, vessel or other craft
using the same, and from all persons
who may use said bulkhead, docks.
wharves, buildings and piers in any
way whatsoever, and shall also be
authorized TO sue for and recover any
damage that may be done to the
same.'
BY the great weight Of authority tho
state has a right TO dispose Of the title
TO its land under water for the hene-
NJ of navigation That is, it has a
right TO do what is apparently at
tempted in the act above quoted,
namely, to fix q harbor line, to pro-
vide for the filling in Of the land be-
tween the harbor line and low or high
water mark, and 20 fix the rights OF
the riparian owners affected thereby
| In this act by section II is provided
that the littoral proprietors abutting
Gu the Delaware river between certain
points are authorized and empowered
to erect bulkheads opposite their re-
spective littoral holdings on said
river, and to hll in with earth. etc.
the space between the bulkhead line
and westerly bank Of the river. 1t
would seem clear from this act that
the Legislature intended by its pas
sage to improve navigation in the
! Delaware river opposite this point.
BY section the fee TO the
space filled in becomes vested in the
littoral proprietors. This is 10 be
their compensation for building the
! bulkhea, and tilling in the space; the
] building of the bulkhead and the
filling IN is the consideration which
passes to the state when it gives up
| 1 title to the land II this act had
merely given the authority TO the gov
! ernment to build the bulkhead and fill
in the space between that and the wes-
terly bank OF the river, there would be
serious doubt In my mind whether a
provision undertaking 10 give 70 the
riparian owners the fee to such
newly made land would be constitu-
tional for this reason: There would
apparently be no consideration pass
4 ing to the state from such riparian
owners. The state cannot give away
its property unless il be for the bene-
fit of the public. This act does not
ir- i,iate. however. that the govern
ment is 10 build the bulkhead and fill
in the space, and from anything that
appears in the statute there is a good
reason for passing title to the ripar-
ian owners.
Covenant As Foundation.
The whole foundation for the pro-
posed agreement between the com
7 4nies and the city of Wilmington is
the covenant on tho part of the city
get the bulkhead built by the gov
ernm.nt, without cost to such COM
panies. If this bulkhead should be
built under the plan proposed in said
agreement and the court was called
upon tc determine the constitution
ality Of this statute with these facts
before it, ! doubt whether It could be
held that the title to this land would
pass from the state to the riparian
o lers and from the riparian owners
TO t. city of Wilmington
The mere establishment Of a bulk
head line has, in some states, been
held an invitation by the state to the
riparian owners TO build out to such
bulkhead lines. This is based upon
the theory that it is in the aid OF
navigation 10 have the riparian own.
! ers blild out 10 said bulkhead line
This does not give, however, TO the
riparian owner, an absolute fee to the
property, but it gives him such a
possessory title as will prevent the
state from taking it from him without
proper compensation. This principle
l. laid down particularly in the state
Cf Rhode Island
The constitutionality of this act may
Il i
that 1t violates Section 16. Article ..
Of the Constitution. which is as fol-
lows: 'No bill or joint resolution,
except bills appropriating money for
public purposes, shall embrace more
than one subject, which shall be ex-
pressed in its title"
The title to the act in question is
AN Act to establish bulkhead. wharf
and pier lines on the Delaware river.
in front of the city of Wilmington and
vicinity"
The only thing in the statute that
could be held 20 be in violation of this
provision of the Constitution is Sec
tiUn ., which gives 10 the littoral
proprietors the fee to this land In a
Delaware case OF Mona chan VS..
Lewis, decided in 1905, the Supreme
Court In commenting upon this sec
tion OF the Constitution, said "The
object Of this important provision of
the Constitution is to prevent the
joining in one act of several incon-
gruous matters, and to prevent de-
ception by provisions OF which the
title gives no intimation."
while such construction should be
given to this provision as will pre-
vent the evils il was intended to
remedy, it should not be so con
strued as TO defeat or embarass leg
islation where there has been sub
stantial compliance with its require
ments. Whore it is possible. 1t should
he 50 construed as TO uphold rather
than destroy legislation"
Whether or not this Act complies
with this provision of tho Constitu-
ton depends, in my judgment, upon
whether or not the Act as whole
purports to be I'm aid of navigation and
whether, for the purpose of aiding
navigation by the building of the
bulkhead and the filling in, the state
had the right to grant to the riparian
owners the fee to this land, which
J matter / have heretofore dis
= cussed. The statute upon
! the face of IL. as have
! said before, gives TO the littoral pro
prietors the right TO build the bulk
head and TO fll in. and they in turn
get for such services, which inure "a
the benefit of the state. the fee to
a part. of the states lands In other
. words, If the Legislature provides in
the act fixing a harbor line for i'm
provement 10 navigation at a certain
point by private owners. it seems IA
Z mo -fhef it door not ,-i,1afg tho ,,ro