Opinion of the Court. Congress, it must be assumed, was aware of the fact that until it acted upon the subject of navigable streams, which were entirely within the confines of a single State, although connecting with waters beyond its boundaries, such State had plenary power over the subject of that navigation, and it knew that when in the absence of any statute of Congress on the subject, an obstruction to such a navigable river had been built under the authority of an act of the legislature of the State, such obstruction was legal and affirmatively authorized by law, because it was so authorized by the law of a State at a time when Congress had passed no act upon the subject. When Congress, in 1890, passed the river and harbor bill we think the expression contained in section ten in regard to obstructions "not affirmatively authorized by law," meant not only a law of Congress, but a law of the State in which the river was situated, which had been passed before Congress had itself legislated upon the subject. An obstruction created under the authority of a state statute under such circumstances, we cannot doubt, was an obstruction "affirmatively authorized by law." When, therefore, the section continues, and provides that "any such obstruction, whether heretofore or hereafter created," shall constitute an offence, it referred to an obstruction as described in the first sentence of the section, namely, an "obstruction not affirmatively authorized by law." If the obstruction were affirmatively authorized by a law of the State, it did not come within the condemnation of the section, and its continuance was, therefore, valid. The power of Congress to pass laws for the regulation of the navigation of public rivers and to prevent any and all obstructions therein cannot be questioned. When Congress chooses to act, it is not concluded by anything that the States, or that individuals by their authority or acquiescence have done, from assuming entire control of the matter, and abating any obstructions that may have been made and preventing any others from being made except in conformity with such regulations as it may impose. The ultimate power of Congress over the whole subject is undoubted. This has been Opinion of the Court. decided in numerous cases, and in the case of Willamette Iron Bridge Co. v. Ilatch, 125 U. S. 1, many of them are referred to by Mr. Justice Bradley in delivering the opinion of the court. If, however, in exercising its right in regard to the regulation and control of commerce, private property must be taken, the Government is obliged to make compensation to the owner. Monongahela Navigation Co. v. United States, 148 U. S. 312, 336. Whether ordering the removal of the obstruction, unaccompanied by the actual taking of the property, would under other circumstances affect the question of compensation, it is not necessary to here decide, as for the reason hereafter given, the boom was an unauthorized obstruction and subject to abatement as such under the act of Congress. As this defendant claims that the obstruction in the river was affirmatively authorized by an act of the state legislature, we must look at that act for the purpose of determining the validity of the claim. The act under which the boom was created is entitled "An act to declare and regulate the powers, rights and duties of corporations organized to build booms and to catch logs and timber products therein." The third section provides: "Such corporations shall have the power and are hereby authorized, in any of the waters of this State, or the dividing waters thereof, to construct, maintain and use all necessary sheer or receiving booms, dolphins, piers, piles or other structure necessary or convenient for carrying on the business of such corporations: Provided, That such boom or booms, sheer booms or receiving booms, shall be so constructed as to allow the free passage between any of such booms and the opposite shore for all boats, vessels or steam crafts of any kind whatsoever, or for ordinary purposes of navigation." 1 Hill Ann. Stat. Washington, § 1592. The reading of this section shows that the boom authorized to be constructed was one which should allow the free passage between the boom and the opposite shore of boats, vessels, etc. The evidence shows that this boom was not so constructed, because it crossed the channel of the river, completely blocking it, and left no space for the free passage of Opinion of the Court. boats and vessels between the end of the boom and the opposite shore. The building of the so-called "trip" was no compliance with the act. By the passage of the river and harbor bill, containing the above mentioned tenth section, Congress has acted upon the subject, and has provided for the removal of any obstruction to a navigable river with the exceptions named in the section. When the Attorney General, therefore, acts under the authority conferred by this statute, he has the right to call upon the court, upon proper proofs being made, to enjoin the continuance of any obstruction not authorized by the statute, and the court has jurisdiction and it is its duty to decide the question whether the existing obstruction is or is not affirmatively authorized by law. In such inquiry the court is bound to decide whether the boom as existing is authorized by any law of the State, when such law is claimed to be a justification for its creation or continuance. That question is not for the State alone, but must necessarily be decided by the Federal court in the course of exercising the jurisdiction conferred upon it by the Federal statute. We, therefore, cannot concur with the views of the Circuit Court of Appeals on this subject. The authority cited by that court for its position was the Willamette Iron Bridge Company v. Hatch, 125 U. S. 1. In that case, however, there had been no act of Congress upon the subject of the navigation of the Willamette River, and without such statute it was held that the United States could not bring within the scope of its laws, obstructions and nuisances in navigable streams within a State, such obstructions and nuisances being offences against the laws of the State within which the navigable waters lie, and constitute no offence against the United States, in the absence of a statute. The court used the following language: "There must be a direct statute of the United States in order to bring within the scope of its laws, as administered by the courts of law and equity, obstructions and nuisances in navigable streams within the States. Such obstructions and nuisances are offences against the laws of the States within which the navigable waters lie, and may be indicted or pro Opinion of the Court. hibited as such; but they are not offences against the United States laws which do not exist; and none such exist except what are to be found on the statute book. . . The usual case, of course, is that in which the acts complained of are clearly supported by a state statute; but that really makes no difference. Whether they are conformable, or not conformable, to the state law relied on, is a state question, not a Federal one. The failure of the state functionaries to prosecute for breaches of the state law does not confer power upon United States functionaries to prosecute under a United States law, when there is no such law in existence." If there were here no Federal law in existence, then the question whether the boom was authorized by a state law or complied with its provisions, would be a state question, as is clearly set forth in the above extract. But the Federal law having been passed, the question then is whether the structure is permitted by that law, and when that law says it may continue, if affirmatively authorized by a state law, the question whether it is so authorized becomes in effect a question whether the Federal law does or does not permit it. If it is authorized by the state law, then the Federal law provides that it may continue; and whether it is or is not, becomes a question for the Federal court to decide. There is no doubt that the boom in question in this case violates the statute under which it was built, because it does not allow free passage between the boom and the opposite. shore for boats or vessels as provided for in the state law. For this reason the Government was entitled to a decision in its favor, and We therefore reverse the decrces of the Circuit Court of Appeals for the Ninth Circuit and of the Circuit Court of the United States for the District of Washington, Northern Division, and remand the case to the Circuit Court for further proceedings in accordance with this opinion. Opinion of the Court. TOLEDO, ST. LOUIS & KANSAS CITY RAILROAD COMPANY v. CONTINENTAL TRUST COMPANY. ROSE v. CONTINENTAL TRUST COMPANY. PETITIONS FOR CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. Nos. 500, 501. Submitted January 22, 1900. — Decided January 29, 1900. Clerks of the Circuit Court of Appeals, having prepared the records on which causes are heard therein for the printer, indexed, and supervised the printing of the same, and distributed the printed copies thereof, and been paid therefor, may certify one of such copies for use on applications to this court for certiorari. The reproduction of transcripts, in manuscript or in print, under such circumstances, is not required. THE statement of the case is in the opinion of the court. Mr. James D. Springer, Mr. F. Spiegelberg and Mr. John Ford for the Toledo, St. Louis &c. Railroad Company. Mr. John S. Miller for Rose. Mr. E. C. Henderson, Mr. Henry Crawford and Mr. Willard Parker Butler for the Continental Trust Company. MR. CHIEF JUSTICE FULLER delivered the opinion of the court. These petitions for certiorari were accompanied by a motion for an order dispensing with the authentication and certification by the clerk of the Circuit Court of Appeals for the Sixth Judicial Circuit of the transcript of the record of the Circuit Court of the United States for the Northern District of Ohio, on which the appeals mentioned in the petitions were heard and submitted to and decided by said Circuit Court of Appeals. The clerk of the Circuit Court of Appeals has certified the transcript of the record and proceedings in that court, "except the transcripts from the Circuit Court, and except |