The New York herald. [volume] (New York, N.Y.) 1920-1924, 1922-11-19
Constit ptionaiity of Federal Migratory
Fish Law. M

u. A. l..
Continued from Sunday, NovemberN5.1
Ffrst-The decisions of the courts. Federal
md State. hold with apparent unanimity
that the States own soil below the low water
mark and within the three mile limit, apd
that they therefore possess the right to
regulate and control the fisheries therein.
Upon Winning their INDEPENDENCE the people
CT the several States acquired as a general
proposition, all the powers of Parliament, to-
eether with the prerogatives of the English
crown u52 U. s; u. and except so far as
ersi Government by the United states Con-
stitution. The sovereignty, over tide waters
within the Jurisdiction of the several original
States remained in such States Waters sur.
rounding territory acquired by the United
states With the rights OF fishery therein e pas
for the benefit of the people OF the state TO
be subsequently created out Of such territory
fnd before the formation Of new state, the
Federal government has the right 20 dispose
of rights In the public waters. l52 Y. ;. !
end 80 p, 8; a3i.l In this way the right OF
fishery in the sea, within the original thir-'
Teen States and also those later admitted TO
she Union, became vested, not In the Federal
Government, but In the several States Tor
the benefit OF their people. (94 U. S. 39D. In
come jurisdictions the people OF a state,
through the Legislature. may Legally grant
jurisdictions, including New York and New
Jersey, the power OF the Legislature Is
merely Of that Of regulating the IA isa an s,
elusive right TO an individual. u6e N. and
n. j. l.. - ~,,
-.
ing the title TO lands below the high water
mark In the State of Washington the SUI
preins Court among others, reached the tol-
lowing general conclusions:
''1he new States admitted In the Union
einco the adoption OF the Constitution, nave
-ahc same rights a. the original states IN the
tide waters and In the land under them
within their respective Jurisdiction. The tito
and right Of riparian and littorai proprie-
sGrs y srS s0 BY ths laws o. the
states subject 10 the right granted to the
United States by the Constitution. go
In Illinois Central Railroad VS.. Illinois, lio
Il. s. 49, the court says: 4
1T Is the settled law In this country that
the ownership Of and dominion and SOW
crcignty over lands covered hS tide water
within the limits Of several states, belong
10 the respective states within which they
use or dispose OF any portion thereof, when
that can be done without substantial I'M
pairment OF the interest OF the public In
The waters, and subject always TO para
mount right OF Congress to control their
navigation, so far as may be necessary Tor
the regulation of commerce with foreign ma
tions and among the States.
This doctrine has been often announced ~
the court g How. ei2, IL Wall. BID; Fish,
natural 1i Clement and are not taken or re.
,luced TO possession, are not the subject OF
private property Gratz v. Mckee zoo RED i
AO3). and not even the owner OF soil over
which a stream frcquented by fish. flows,
owns the fish therein (s3 ". Y. s. 2sp).
While they are IN "a state OF freedom fish
are the property OF the sovereign power. in
Great Britain OF the King. and In the United
states of the state, 10 whose waters they
nay be, not as proprietor, but In Its sove-
reign capacity as the representatiye Of AZ
/ = people in common (223 ". S. 1880, and
the ownership thereof cannot be claimed by
amy particular Individual.
Serond--fs there any affirmative clause IN
Tho Federal Constitution that authorizes
Congressional leRfsatlon In the regulation
and control OF the fisheriss?
In determining this question y must be
borne in mind that the United states ~
government OF limited, enumerated and dele
gated powers and that II cannot exercise any
authority not granted by that instrument.
either in express words or by necessary
Implication.
Whenever a question arises as 10 whether
the Federal Government has the right 10
exercise any particular authority, recourse
must be had 70 the Constitution In order TO
determine WHISTLER such authority IL found
therein either by express words or byneces-
sary implication.
In constituting a law Of the United states
we look. therefore, 10 the Federal Constitu-
tiou 20 II the power is granted; but, In
constituting a law Of the state we must De.
termlne whether the Legislature Is prohibited
by express words or by implication. either In
the Federal or state constitutions. from