was superseded by the newer compact called the Constitution, by virtue of which the States granted to the creation of their hands, the United States, the right to regulate commerce with foreign nations, and among the several States'. Mr. Justice Strong delivered the opinion of the Court, unanimous as in the Decision preceding case, and saying: of the Court We do not perceive that, in this suit, the State of South Carolina stands in any against better position than that which she would occupy if the compact of 1787 between South herself and Georgia had never been made... Undoubtedly this assured to the citizens Carolina. of the two states the free and unobstructed navigation of the channel described, precisely the same right which they would have possessed had the original charters of the two provinces, Georgia and South Carolina, fixed the Savannah River as the boundary between them.1 The learned Justice was undoubtedly correct in that observation, but he did not stand upon such solid ground when he proceeded to say: It needed no compact to give to the citizens of adjoining States a right to the free and unobstructed navigation of a navigable river which was the boundary between them.2 His remark would have been beyond criticism if he had limited himself to the statement that it should not need a compact for such purposes. The next passage of his opinion, however, is not open to the criticism, even of the most captious, nor subject to modification, and, as it states the changed relations of the States, brought about by the compact of all, and holds navigation to be incident to commerce and included within the power to regulate it, this portion of the opinion of the learned Justice is quoted in his own language: to the But it matters not to this case how the right was acquired, whether under the Delegacompact or not, or what the extent of the right of South Carolina was in 1787. After tion of the treaty between the two States was made, both the parties to it became members rights of the United States. Both adopted the Federal Constitution, and thereby joined United in delegating to the general government the right to 'regulate commerce with foreign States. nations, and among the several States'. Whatever, therefore, may have been their rights in the navigation of the Savannah River before they entered the Union, either as between themselves or against others, they both agreed that Congress might thereafter do everything which is within the power thus delegated. That the power to regulate inter-State commerce, and commerce with foreign nations, conferred upon Congress by the Constitution, extends to the control of navigable rivers between States, rivers that are accessible from other States, at least to the extent of improving their navigability-has not been questioned during the argument, nor could it be with any show of reason. From an early period in the history of the government, it has been so understood and determined. Prior to the adoption of the Federal Constitution, the States of South Carolina and Georgia together had complete dominion over the navigation of the Savannah River. By mutual agreement they might have regulated it as they pleased. It was in their power to prescribe, not merely on what conditions commerce might be conducted upon the stream, but also how the river might be navigated, and whether it might be navigated at all. They could have determined that all vessels passing up and down the stream should pursue a defined course, and that they should pass along one channel rather than another, where there were two. They had plenary authority to make improvements in the bed of the river, to divert the water from one channel to another, and to plant obstructions therein at their will. This will not be denied; but the power to 'regulate 2 Ibid. (93 U.S. 4, 9). State of South Carolina v. State of Georgia (93 U.S. 4, 8-9). Regulation of commerce navigation. commerce', conferred by the Constitution upon Congress, is that which previously existed in the States.1 The United States, succeeding to the rights of the States in this matter, could therefore exercise the rights which the learned Justice had declared South Carolina and Georgia competent to exercise before the Constitution. In view of the somewhat full statement of the rights which the State previously possessed, it is unnecessary to deal further with this phase of the question, although it is advisable to quote the language of Gilman v. Philadelphia (3 Wallace, 724), upon which the Court relies, and which Mr. Justice Strong quoted in its behalf : Commerce includes navigation. The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable rivers of the United States which are accessible from a State other than those in which includes they lie. For this purpose they are the public property of the nation, and subject to all the requisite legislation by Congress. This necessarily includes the power to keep these open and free from any obstruction to their navigation interposed by the States, or otherwise; to remove such obstructions where they exist; and to provide, by such sanctions as they may deem proper, against the occurrence of the evil and for the punishment of the offenders. For these purposes Congress possesses all the powers which existed in the States before the adoption of the national Constitution, and which have always existed in the Parliament of England.2 be a means of This might appropriately have ended the case, because, if the Congress of the United States has the right to regulate commerce between the States, including therein navigation, and, if the Congress passed an act in the interest of commerce between the States and improved navigation in order to facilitate commerce, the Secretary of War, to whose department the improvements in question belonged, was authorized to undertake the improvements, inasmuch as the Congress stood in the position of the States before the grant of power, and the Secretary of War was their agent. The only question that could arise was not whether improvements could be made, but whether they were what they claimed to be, or were really obstructions to commerce and to navigation in the guise of improvements. The Court, therefore, thus addressed itself to this phase of the subject, saying, through Mr. Justice Strong: Obstruc- But it is insisted on behalf of the complainant, that, though Congress may have tion may the power to remove obstructions in the navigable waters of the United States, it has no right to authorize placing obstructions therein; that while it may improve improve- navigation, it may not impede or destroy it. Were this conceded, it could not affect our judgment of the present case. The record exhibits that immediately above the city of Savannah the river is divided by Hutchinson's Island, and that there is a natural channel on each side of the island, both uniting at the head. The obstruction complained of is at the point of divergence of the two channels, and its purpose and probable effect are to improve the southern channel at the expense of the northern, by increasing the flow of the water through the former, thus increasing its depth and water-way, as also the scouring effects of the current. The action of the defendants is not, therefore, the destruction of the navigation of the river. True, it is obstructing the water-way of one of its channels, and compelling navigation to use the other channel; but is it a means employed to render navigation of the river more convenient,--a mode of improvement not uncommon. The two channels are not two rivers, and closing one for the improvement of the other is in no just or legal sense destroying or impeding the navigation. If it were, every structure erected in the bed of the river, whether in the channel or not, would be an obstruction. 1 State of South Carolina v. State of Georgia (93 U.S. 4, 9–10). 2 Ibid. (93 U.S. 4, 10). ment. It might be a lighthouse erected on a submerged sand-bank, or a jetty pushed out into the stream to narrow the water-way, and increase the depth of water and the direction and the force of the current, or the pier of a bridge standing where vessels now pass, and where they can pass only at very high water. The impediments to navigation caused by such structures are, it is true, in one sense, obstructions to navigation; but, so far as they tend to facilitate commerce, it is not claimed that they are unlawful. In what respect, except in degree, do they differ from the acts and constructions of which the plaintiff complains? All of them are obstructions to the natural flow of the river, yet all, except the pier, are improvements to its navigability, and consequently they add new facilities to the conduct of commerce.1 The learned Justice, however, was unwilling to concede that Congress did not have the power to place obstructions, should it desire to do so, because possessed of the power of the States which could do what they could have done before and they could have placed obstructions, but would not, and therefore the Congress should not place them in such a way as to injure their interests. On this point, Mr. Justice Strong said: It is not, however, to be conceded that Congress has no power to order obstructions to be placed in the navigable waters of the United States, either to assist navigation or to change its direction by forcing it into one channel of a river rather than the other. It may build lighthouses in the bed of the stream. It may construct jetties. It may require all navigators to pass along a prescribed channel, and may close any other channel to their passage. It, as we have said, the United States have succeeded to the power and rights of the several States, so far as control over interState and foreign commerce is concerned, this is not to be doubted. Might not the States of South Carolina and Georgia, by mutual agreement, have constructed a dam across the cross-tides between Hutchinson and Argyle Island, and thus have confined the navigation of the Savannah River to the southern channel? Might they not have done this before they surrendered to the Federal government a portion of their sovereignty? Might they not have constructed jetties, or manipulated the river, so that commerce could have been carried on exclusively through the southern channel, on the south side of Hutchinson Island? It is not thought that these questions can be answered in the negative. Then why may not Congress, succeeding, as it has done, to the authority of the States, do the same thing? Why may it not confine the navigation of the river to the channel south of Hutchinson's Island; and why is this not a regulation of commerce, if commerce includes navigation ? We think it is such a regulation.2 But, as has been stated more than once in the course of this analysis, the government of the United States is a government of laws, not of men, and it cannot follow that men in authority may interpose an obstacle to commerce merely by calling it an improvement. Whether an alleged improvement is in fact an obstruction, and, instead of facilitating commerce and navigation, destroys either or both, is a question of fact to be ascertained in a judicial proceeding at the behest of the parties in interest. The learned Justice, therefore, was unwilling to rest his case upon showing power in the Congress to regulate commerce. The Court wanted to show and did, in the succeeding portion of the opinion, that the question involved was judicial and that there was judicial precedent for the authority claimed. Mr. Justice Strong therefore appealed to the case of Pennsylvania v. The Wheeling and Belmont Bridge Co. (18 Howard, 421), decided in 1856, which he declared to be instructive, holding as it did that the power of Congress to regulate commerce included the regulation of 1 State of South Carolina v. State of Georgia (93 U.S. 4, 11). 2 Ibid. (93 U.S. 4, 11–12). intercourse and navigation and, consequently, the power to determine what shall or shall not be deemed, in the judgment of law, an obstruction of navigation.' 1 The Court therefore held in the Wheeling case that' an act of Congress declaring a bridge over the Ohio River, which in fact did impede steamboat navigation, to be a lawful structure, and requiring the officers and crews of vessels navigating the river to regulate their vessels so as not to interfere with the elevation and construction of the bridge, was a legitimate exercise of the power of Congress to regulate commerce.' 2 The Wheeling case, however, was important for another reason and material to Question the opinion of the Court in the case under consideration. It had been contended in of preferthe present case that closing the portion of the Savannah river flowing between Hutchinson Island and South Carolina, was, in effect, a preference given to the ports of Georgia, a preference forbidden in express terms by the 9th section of Article I of the Constitution, providing that no preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.' ence given to Georgia. The Wheeling case was an authority on this very question, inasmuch as it held, to quote Justice Strong's summary of it, 'that the prohibition of such a preference does not extend to acts which may directly benefit the ports of one State and only incidentally injuriously affect those of another, such as the improvement of rivers and harbours, the erection of light-houses, and other facilities of commerce,' a statement borne out by the exact language of the Court in the Wheeling case, which had said on this point : 3 It will not do to say that the exercise of an admitted power of Congress conferred by the Constitution is to be withheld, if it appears or can be shown that the effect and operation of the law may incidentally extend beyond the limitation of the power.4 Finally, the State of South Carolina insisted that if Congress had the power to authorize the work in the harbour in progress as well as in contemplation, resulting in the diversion of the water from the northern channel between Hutchinson Island and South Carolina, to the southern channel, wholly in Georgia, Congress had not exercised the power and given authority to do the acts in question. The Court, however, was of the opinion that the appropriation of money by the Congress for the improvement of the harbour to Savannah was in itself an authorization to make the improvements, and that in default of explicit directions contained in the acts themselves the Secretary of War was authorized to expend the money on improvements in the harbour of Savannah, and to prescribe the improvements to be made, provided, however, they should be found in fact to be improvements. This was, of course, a question of fact to be determined in case of need by the intervention of the Court, and on this important point, the Court said: We know judicially the fact that the harbor is the river in front of the city, and the case, as exhibited by the pleadings, reveals that the acts of which the plaintiff complains tend directly to increase the volume of water in the channel opposite the city, as well as the width of the waterway. Without relying at all upon the report of the engineers, which was before Congress, and which recommended precisely what was done, we can come to no other conclusion than that the defendants are acting 1 State of South Carolina v. State of Georgia (93 U.S. 4, 12). 3 Ibid. (93 U.S. 4, 13). 2 Ibid. (93 U.S. 4, 12). Ibid. (93 U.S. 4, 13). within the authority of the statutes, and that the structure at the cross-tides intended to divert the water from the northern channel into the southern is, in the judgment of the law, no illegal obstruction.1 This being so, the Court held that the State of South Carolina had not made out such a case as would authorize the Court to restrain the State of Georgia and the defendants from continuing the improvements. It is interesting to note, however, the exact language of Mr. Justice Strong, as showing the unwillingness of the Court to express an opinion in suits between States which was not called for by the circumstances of the case, lest it might seem to question the right in general of a State to bring suit in the Supreme Court. Thus, Mr. Justice Strong said: The plaintiff has, therefore, made no case sufficient to justify an injunction, Injunceven if the State is in a position to ask for it.2 And, bearing upon this very important matter, Mr. Justice Strong further said, speaking for the Court: But, in resting our judgment upon this ground, we are not to be understood as admitting that a State, when suing in this court for the prevention of a nuisance in a navigable river of the United States, must not aver and show that it will sustain some special and peculiar injury therefrom, such as would enable a private person to maintain a similar action in another court. Upon that subject, we express no opinion. It is sufficient for the present case to hold, as we do, that the acts of the defendants, of which South Carolina complains, are not unlawful, and consequently that there is no nuisance against which an injunction should be granted.3 25. State of New Hampshire v. State of Louisiana. The case of New Hampshire v. Louisiana (108 U.S. 76), decided in 1883, is similar to, indeed identical with, that of New York v. Louisiana, tried at the same time, and because of this fact the two were considered as one case by the court. The facts in these cases have already been stated and the decision examined in connexion with the attempt made by individuals to circumvent the letter of the 11th amendment. They certainly were opposed to its spirit. It is sufficiently clear, from the twenty-three cases already considered in which the Supreme Court assumed jurisdiction, that it would have taken jurisdiction in the present instance if the controversy presented to the Court had really been one between the States as such--for in suits between States the parties, not the subject matter, give jurisdiction. The Court, however, found that the cases, between States in form, was in substance between a State on the one hand and citizens of different States on the other. In its rôle of protector of the rights of sovereign states against suit where they have not consented to be sued, the Court refused to assume jurisdiction, or rather, it entertained jurisdiction in order to determine whether the controversy was between the States, and dismissed the suits when satisfied that the States were being imposed upon. Recognizing that it was a Court of limited jurisdiction, it restrained itself with the limits assigned it by the Constitution, although, as an international tribunal, it might have assumed jurisdiction of the controversy, as by 1 State of South Carolina v. State of Georgia (93 U.S. 4, 13-14). 3 Ibid. (93 U.S. 4, 14). 2 Ibid. (93 U.S. 4, 14). Ante, pp. 63–7. tion refused. |