and commerce shall demand it. The right of congress to regulate commerce, and, as an incident, to regulate navigation, remains unaffectd by the question as to whether the title to the submerged soil is in the state or is in the owner of the shore. A distinction must be recognized between that which is jus privatum and that which is jus publicum; the private right is subordinate to the public right, and the riparian owner takes and holds such proprietary rights as are consistent with the public right of navigation and the control of congress over that right. The power to regulate commerce is the basis of the power to regulate navigation and navigable waters and streams, and, for the purposes of the exercise of the commercial power, it is immaterial whether congress has or has not the ownership of, and dominion over such waters and the land under them.53

§ 46. Authority of a state to maintain bridge across navigable stream. The commercial power of congress is exclusive of state authority only when the subjects upon which it is exerted are national in their nature, character, and sphere of operation, and admit and require uniformity of regulations affecting alike all the states, and when the subjects of that power are local in their nature or sphere of operations, or constitute mere aids to commerce, the state may provide for their regulation and management until congress intervenes and supersedes their action; and, until congress acts, the states within which navigable streams lie have the power to construct and maintain bridges over them. The states have full power to regulate within their limits matters of internal police, which embraces, among other things, the construction, repair and maintenance of roads and bridges, and the establishment of ferries; the states are more likely to appreciate the importance of such means of internal communication, and to provide for their proper management, than a government at a distance; and while, as to bridges over navigable streams, the power of the state is subordinate to that of congress, yet until congress

53 Scranton v. Wheeler, 179 U. S. 141, 190 (45:126); S. C. 6 C. C. A. 585, 57 Fed. Rep. 803 (opinion by Lurton); Northern Transp. Co. v. Chicago, 99 U. S. 635, 642 (25:

336); Gibson v. United States, 166 U. S. 269, 271 (41:996); Stockton v. Baltimore & N. Y. R. Co., 32 Fed. 9, 20.

has acted the power of the state is plenary; but when congress acts directly in regard to bridges authorized by the state, its will must control so far as may be necessary to secure the free navigation of the stream. But where the state has authorized the construction of a bridge across a navigable stream within its limits, and congress has taken no action in regard thereto, the courts of the United States will not grant an injunction. against the maintenance of such bridge.54 Bridges which are connecting parts of turnpikes, streets and railroads, are means of commercial transportation as well as navigable waters, and the commerce which passes over a bridge may be much greater than would ever be transported on the water obstructed. It is for the municipal power to weigh the considerations which belong to the subject and to decide which shall be preferred, and how far either shall be made subservient to the other. The states have always exercised this power, and from the nature and objects of the two systems of government, they must always continue to exercise it, subject, however, in all cases, to the paramount authority of congress, when the power of the state shall be exercised within the sphere of commercial power which belongs to the national government.55

§ 47. Same-Federal statute requiring assent of the federal government. By recent federal legislation, the assent of both the state and federal governments are necessary to the construction of any bridge across navigable streams, the plans of which must be submitted to and approved by the chief engineers and the secretary of war; and the plans, when once approved, cannot be deviated from, unless the modifications of the plans are first submitted and approved by the chief engineers and secretary of war. The effect of this legislation, reasonably interpreted, is to make the erection of bridges. across a navigable river, within the limits of a state, depend

54 Caldwell v. American River Bridge Co., 113 U. S. 205, 212 (28:959); Gilman v. Philadelphia, 3 Wall. 713 (18:96); Escanaba Transfer Co. v. Chicago, 107 U. S. 678 (16:799); Lakeshore & C. R. Co. v. Ohio, 165 U. S. 366, 368

36

(41:748); Cummings v. Chicago, 188 U. S. 410, 431 (47:525).

55 Gilman V. Philadelphia, 3 Wall. 713 (18:96).

56 30 U. S. Stat. at L. 1121, 1151, Comp. Stat. 1901, p. 3541, 6 Fed. Stat. Anno. 805.

upon the concurrent or joint assent of both the national government and the state government.57

§ 48. Power of the states to improve their harbors, bays and navigable rivers.-The improvement of harbors, bays and navigable rivers within the state is a local and limited regulation of commerce, not requiring uniformity throughout the union, and the control of congress over such waters is to insure freedom in their navigation, so far as that is essential to the exercise of its commercial power. The states have full control over their purely internal commerce; and to promote its growth and insure its safety, they have an undoubted power to remove obstructions from their harbors, rivers and bays and improve them generally, if they do not impair their free navigation as permitted under the laws of the United States or defeat any system for the improvement of their navigation provided by the general improvement; and a state statute, such as that of Alabama for the improvement of the river, bay and harbor of Mobile, is not invalid, and the courts of the United States will administer such state laws and enforce any contract rights accruing under them between competent parties.58

§ 49. Same-Federal statutes requiring assent of the federal government. By recent federal legislation, the concurrent or joint assent of both the federal and state governments is necessary to the erection of any wharf or other structure in a navigable water of the United States, which is entirely within the limits of a state.59

§ 50. Distinction between municipal sovereignty and national sovereignty. In one of the early cases upon the subject of the sovereignty and dominion of the respective states over their navigable waters, the United States supreme court, speaking

51 Cummings v. Chicago, 188 U. S. 410, 431 (47:525); Lakeshore & C. R. Co. v. Ohio, 165 U. S. 366, 368 (41:748).

58 Mobile County v. Kimball, 102 U. S. 691, 707 (26:238); Navigation Co. v. United States, 148 U. S. 333 (37:470); Lake Shore & C. Ry. Co. v. Ohio, 165 U. S. 365, 369 (41:747); Cummings v. Chicago,

188 U. S. 410 (47:525); Montgomery v. Portland, 190 U. S. 89, 107 (47:965); Willamettee Iron Bridge Co. v. Hatch, 125 U. S. 1 (31:629).

59 30 U. S. Stat. at L. ch. 425, sec. 10, p. 1151, 6 Fed. Stat. Anno. 813; Montgomery v. Portland, 190 U. S. 89, 107 (47:965); Cummings v. Chicago, 188 U. S. 410 (47:525).

through Mr. Justice McKinley, quite appositly drew the distinction between municipal sovereignty and national sovereignty, and laid down the doctrine that the United States have no constitutional capacity to exercise municipal jurisdiction, sovereignty or eminent domain within the limits of a state or elsewhere, except in the cases expressly provided in the constitution. Chief Justice Marshall had previously decided that the jurisdiction of a state is coextensive with its territorial limits, and that the grant by the constitution to the federal judiciary of admiralty jurisdiction was not a cession of the navigable waters and the soils beneath them which lie within the states, and that the federal courts had no jurisdiction of a murder committed in Boston harbor; 61 and the supreme court has by an unbroken line of decisions firmly established the principle that the municipal jurisdiction of the states over their respective navigable waters and the soils beneath is just as full and ample as over their upland territory, subject only to the commercial power of congress."2

§ 51. Admiralty jurisdiction of the United States over the public navigable lakes and rivers of the states.-While it is true that the states, respectively, are vested with sovereignty over their navigable waters, yet it is also true that the, admiralty and maritime jurisdiction granted to the federal government by the constitution of the United States is not limited to tide waters, but extends to all public navigable rivers and lakes, although they are situated within the territorial limits of the respective states.63

60 Pollard v. Hagan, 3 How. 230 (11:565).

61 United States v. Beavans, 3 Wheat. 337 (4:404).

62 United States v. Beavans, 3 Wheat. 337 (4:404); Smith V. Maryland, 18 How. 76 (15:271); McCready v. Virginia, 94 U. S. 394 (24:248); Manchester v. Massachusetts, 139U. S. 260, 263 (35:165); Lawton v. Steele, 152 U. S. 138 (38:389); State v. Harrub, 95 Ala. 182, 36 Am. St. Rep. 197, 15 L. R. A. 763; Commonwealth v. Manchester, 152 Mass.

243, 23 Am. St. Rep. 831; People v. Welch, 141 New York, 271, 38 Am. St. Rep. 795, 24 L. R. A. 119; Steamboat Co. v. Chace, 16 Wall. 531 (21:371).

63 The Genesee Chief v. Fitzhugh, 12 How. 443 (13:1058); Ex Parte Garnett, 141 U. S. 1, 18 (35:631); Fretz v. Bull, 12 How. 466 (13:1068); Jackson V. The Magnolia, 20 How. 296 (15:909); Nelson v. Leland, 22 How. 48 (16:269); The Propeller Commerce, 1 Black, 574 (17:107); The Hine v. Trevor, 4 Wall. 555 (18:

§ 52. State pilotage laws-Administered in federal courts.— State pilotage laws are regulations of commerce, but they are constitutional and valid, though subject to the commercial power of congress, and a right arising under such laws will be enforced in the admiralty courts of the United States. At the time the constitution took effect, pilotage laws existed in several of the states, and were subsequently enacted in others, and in all such states those laws have been changed from time to time according to the will of their respective legislatures; suits in the state courts have been founded on them and recoveries had and many such cases reported in the state reports, and in none of them was a question ever raised or a doubt expressed as to the validity of those laws or the authority of the states to enact them; and congress has by repeated legislation recognized the validity of those laws of the states.**

§ 53. Constitutional power of the states to lay duties on imports and exports for executing their inspection laws.-There is in the federal constitution reserved to the states, respectively, the power, subject to the revision and control of congress, to lay a tax on imports and exports, for the purpose of raising a revenue to defray the expenses absolutely necessary in the execution of their inspection laws. The constitution declares that: "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 or exports, shall be for the use of the treasury of the United States, and all such laws shall be subject to the revision and control of the congress. 1965 This power reserved to the states, by which they are permitted to levy a tax on imports. and exports for executing their inspection laws, is an exception

451); The Belfast, 7 Wall. 624 (19:266); The Eagle, 8 Wall. 15 (19:365); The Daniel Ball, 10 Wall. 557 (19:999); The Montello, 20 Wall. 430 (22:391); Ex Parte Boyer, 109 U. S. 629 (27:1056).

64 Ex parte McNiel, 13 Wall. 236, 243 (20:624); Cooley v. Board of Wardens, 12 How. 299; Olsen v. Smith, 195 U. S. 332, 345 (49:224). 65 U. S. Const. art. I, sec. 10, cl.

2; Patapsco Guano Co. v. Board of Agriculture, 171 U. S. 345, 361 (43:191); Minnesota v. Barber, 136 U. S. 313 (34:455); Plumley v. Massachusetts, 155 U. S. 461 (39:223); Schollenberger v. Pennsylvania, 171 U. S. 1, 30 (43:49); Crutcher v. Kentucky, 141 U. S. 47 (35:649); Steiner v. Ray, 84 Ala. 93; Turner v. Maryland, 107 U. S. 38 U. S. (27:370).