character and sphere of operation, such as harbors, pilotage, the improvement of navigable rivers, bays and harbors, the establishment of beacons and buoys, the construction of bridges. over navigable rivers, the erection of wharves, piers, docks, and other subjects of a kindred nature, which can be properly regulated only by special provisions adapted to their respective localities, and in regard to such subjects the states may act until congress interferes and supersedes their authority."

§ 38. Failure of congress to act in regard to any commercial subject of a national nature is a declaration that as to such matter commerce shall remain free.-The failure of congress to enact legislation regulating any commercial subject which is national in its nature, character and sphere of operation, requiring uniform regulation, such as foreign and interstate commerce, is equivalent to a declaration that commerce as to such matter, shall remain free.42

§ 39. Powers expressly prohibited to the states.-The powers expressly prohibited by the constitution to the states are of two classes, namely: (1) Powers absolutely and unconditionally prohibited to the states; (2) powers conditionally prohibited

41 Cooley v. Port Wardens, 12 How. 299, 319 (13:996); Mobile County v. Kimball, 102 U. S. 691, 697 (26:238); Escanaba & L. M. Transp. Co. v. Chicago, 107 U. S. 678 (27:442); Parkersburg & O. R. Transp. Co. v. Parkersburg, 107 U. S. 691 (27:584); Morgan's Steamship Co. v. Louisiana Board of Health, 118 U. S. 455 (30:237); Smith v. Alabama, 124 U. S. 465 (31:508); Nashville, C. & St. L. R. Co. v. Alabama, 128 U. S. 96 (32:352); Huse v. Glover, 119 U. S. 543, 550 (30:487); Williamette Iron Bridge Co. v. Hatch, 125 U. S. 1, 17 (31:629); Wilson v. Black Bird Creek Marsh Co., 2 Pet. 245 (7:412); Pollard V. Hogan, 3 How. 229 (11:573); Passaic Bridges, 3 Wall. 782 (16:799); Gilman v. Philadelphia, 3 Wall. 724 (18:99); Pound v. Turk, 95 U. S. 459 (24:525); Cardwell v. Ameri

can Bridge Co., 113 U. S. 205 (29:959); Hamilton v. Vicksburg S. & P. R. Co., 119 U. S. 280, 285 (30:393); Sands v. Manistee River Imp. Co., 123 U. S. 288, 297 (31: 149); Lakeshore & M. S. Ry. Co. v. Ohio, 173 U. S. 285, 238 (43: 702); Gloucester Ferry Co. v. Commonwealth of Pennsylvania, 114 U. S. 196, 218 (29:158); Ex parte McNeil, 13 Wall. 236; Wilson v. McNamee, 102 U. S. 572; Olsen v. Smith, 195 U. S. 332, 345 (49:224).

42 Leisy v. Hardin, 135 U. S. 100, 160 (34:128); Mobile County v. Kimball. 102 U. S. 691 (26:238); Brown v. Houston, 114 U. S. 622, 631 (29:257); Wabash St. L. & P. R. Co. v. Illinois, 118 U. S. 557 (30:244); Robbins v. Shelby County Taxing Dist., 120 U. S. 489 (30: 694).

to the states-that is, powers which the states are forbidden to exercise "without the consent of the congress." The powers embraced in the first class are: "No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; con money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts, pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility." The powers embraced in the second class are: "No state shall, without the consent of the congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts, laid by any state on imports and exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and the control of the congress. No state shall, without the consent of congress, lay any duty of tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay." 43

§ 40. The reserved powers of the states.-The tenth amendment to the federal constitution declares that: "The powers not delegated to the United States by the constitution, nor pro'hibited by it to the states, are reserved to the states, respectively, or to the people." In this country, the powers of sovereignty are divided between the government of the union and those of the states, and they are each sovereign with respect to the objects committed to it, and neither is sovereign with respect to the objects committed to the other; and there is a concurrent right of legislation in the states and in the United States, except as both are restrained by the constitution of the United States." 45 The states have the same undeniable and unlimited jurisdiction over all persons and things within their territorial limits, as any sovereign nation, where that jurisdiction is not surrendered or restrained by the federal constitution; and none of those powers which relate to merely municipal legislation have been so surrendered or restrained.46

43 U. S. Const. Art. 1 sec. 10, cl. 1, 2, 3

44 McCulloch V. Maryland, 4 Wheat. 316 (4:579).

45 Mayor v. Miller, 11 Pet. 102 (9:648).

46 Dobbins v. Comrs. 16 Pet. 435 (10:1022).

47

§ 41. Sovereignty of the states over their navigable waters and the soils beneath them.-When the revolution took place, the people of each-state became themselves sovereign, and in that character they held, respectively, the absolute right to all their navigable waters and the soils under them, for their own common use, subject only to the rights since surrendered by them through the constitution to the general government ;*7 and the grant, contained in the constitution, to the United States, of cognizance of all cases of admiralty and maritime jurisdiction cannot be construed into a cession of the navigable waters within the jurisdiction of a state.18 It is the settled rule of law, established by repeated decisions of the supreme court of the United States, that absolute property in, and dominion and sovereignty over, the soils under the tide waters in the original states were reserved to the several states, and that the new states since admitted have the same rights, sovereignty, and jurisdiction in that behalf as the original states possess within their respective borders; and upon the acquisition of territory from Mexico the United States acquired title to tide lands equally with the title to upland, but with respect to the former they held it in trust for the future states that might be erected out of such territory. But this rule does not apply to tide lands that had by the antecedent government been previously granted to other parties, or subjected to trusts which would require their disposition in some other way, and when the United States acquired California from Mexico by the Treaty of Guadaloupe-Hidalgo they were bound under the eighth article of that treaty to protect all rights of property emanating from the Mexican government previous to the treaty; however, irrespective of any such provisions in the treaty, the obligations resting upon the United States, in that respect, under the principles of international law, would have been the same.*

49

§ 42. Same-Tide waters-The great lakes.-It is the settled law of this country that the ownership of and dominion and sovereignty over lands covered by tide waters, within the

47 Martin v. Waddell, 16 Pet. 367 (10:997); Shineley v. Bowlby, 152 U. S. 1, 58 (38:331).

48 United States v. Beavans, 3 Wheat. 336 (4:404).

49 Knight v. United Land Association, 142 U. S. 161, 216 (35:974) and authorities there cited.

limits of the several states, belong, in trust for public use, to the respective states within which they are situated, with the consequent right to use or dispose of any portion thereof, when that can be done without substantial impairment of the interest of the public in the waters, and subject always to the paramount right of congress to control their navigation so far as may be necessary for the regulation of commerce with foreign nations and among the states. The same doctrine is held to be applicable to lands covered by fresh water in the Great Lakes over which is conducted an extended commerce with different states and foreign nations. These lakes possess all the general characteristics of open seas, except in the freshness of their waters, and in the absence of the flow of the tide. In other respects they are inland seas, and there is no reason or principle for the assertion of dominion and sovereignty over, and ownership by the state, of lands covered by tide waters that is not equally applicable to its ownership of and dominion and sovereignty over lands covered by the fresh waters of the lakes.50

§ 43. Same-Mississippi river.-The act of congress authorizing the people of the territory of Minnesota to form a state constitution, and making the Mississippi river a common highway and forever free as well to the inhabitants of said state as to all other citizens of the United States, did not impair the title and jurisdiction of the state over the navigable waters within her boundaries more than rights of that nature are limited with regard to the original states; and the title and rights of riparian owners and proprietors upon the banks of the Mississippi river are to be settled and determined by the laws of the states within which the lands are situated and included, respectively.51

§ 44. Riparian rights determined by state law. It is the settled doctrine of this country that the riparian titles and rights of owners of land upon the navigable waters are settled and determined by the local law of the state where the question arises, and the courts of the United States in adjudicating upon such titles and rights follow the statutes of the state and the settled decisions of its highest courts.52

§ 45. Riparian rights subordinate to the commercial power of congress.-The commercial power vested by the constitution in congress includes the power to prescribe the rules by which commerce is to be governed, comprehends navigation within the limits of every state in the union, so far as that navigation may be in any manner connected with commerce with foreign nations or among the several states or with the Indian tribes, and extends to the control of the navigable waters and the land beneath them not only for the purposes of navigation but also for the purpose of constructing piers, bridges, locks, dams, canals and all other instrumentalities of commerce which in the judgment of congress may be necessary or expedient; all navigable waters and the submerged soil are under the control of the United States for the purpose of regulating and improving navigation, and although the title to the shore and the submerged soil is in the various states and individual owners under them, such title is always subject to the easement and servitude of navigation as a means and instrument of that commerce, the regulation of which is by the constitution vested in the national government; and the prohibition contained in the fifth amendment to the constitution against the taking of private property for public use without just compensation has no application to the case of a land owner bordering on a public navigable river whose access from his land to navigability is permanently lost by reason of the construction of a pier resting on submerged lands away from but in front of his upland and which pier was erected by the United States not with intent to impair the rights of riparian owners but for the purpose only of improving the navigation of the river. The states hold their navigable rivers and the soil beneath them under a high public trust, to preserve them forever free as public highways, subject only to the commercial power of congress; and the legal title and riparian rights which, under the local law and the grant of the state, became vested in the riparian owner, are held by him subject to the same public trust, and, therefore, subordinate to the power of congress to control and use the soil under the streams whenever the necessities of navigation

Power Co. v. Board of Comrs., 58 (38:331), where all the cases 168 U. S. 349, 374 (42:497); are examined. Shinely v. Bowlby, 152 U. S. 1,