Imagini ale paginilor
PDF
ePub

Agree

ment

of the parties upon the boun

dary (vide p. 264,

ante).

in a river of the adjoining State in the nature of a nuisance, South Carolina v. Georgia (93 U.S. 4), the restriction of the right of a State to sue to cases in which it appears in its own interest and not in behalf of the title of a citizen, New Hampshire v. Louisiana (108 U.S. 76), and two cases in which the United States appears in the Supreme Court as plaintiff against one of the United States, United States v. North Carolina (136 U.S. 211), United States v. Texas (143 U.S. 621).

The mere enumeration is a fact as well as an argument, and carries conviction, if the mind be open to conviction. We may close our eyes if we will to the obvious, but the obvious exists. We may, if we are blind, shake our head at the sun or the stars, and, if we be deaf, stand unmoved before the roaring Niagara, but if we have eyes to see and ears to hear, we must perforce admit that the spectacle of States, sovereign within their respective spheres, summoning their equals before a court of justice to litigate a controversy of a justiciable nature, and the appearance of those States in response to this summons, including the United States, whose sovereignty, power, and majesty cannot be gainsaid, are precedents of no mean order, capable and worthy of being followed by the members of the society of nations, which we cannot regard as less able, less enlightened, less capable of deciding their controversies by judicial process, if only they are minded to do so, than the United States and the forty-eight States composing the American Union.

VII.

CONFIRMATORY DECISIONS: 'GOVERNMENT OF LAWS AND NOT
OF MEN'.

32. State of Nebraska v. State of Iowa.
(145 U.S. 519) 1892.

The first case of Nebraska v. Iowa (143 U.S. 359) was decided by the Supreme Court in 1892, in a controversy due to the fact that the Missouri River, the boundary between the two States, had suddenly changed its course and seriously affected the line, if it was to follow the river, but did not seriously affect it if the line was to be considered as the channel over which its waters flowed. The Court held, it will be recalled, that in the case of gradual change, known as accretion, the river still remains the boundary, but in case of sudden and violent change, known as avulsion, and as happened in that case, the boundary line remains where it was before and is to be found in the discarded channel. It will be further recalled that Mr. Justice Brewer, in delivering the opinion of the court, stated that no decree would be entered, as it appeared likely that, with the determination of the principle of law, the contending parties would thus be able to agree upon the line. This probability, no doubt due to an intimation which counsel for Nebraska and Iowa had made to the court, proved to be correct. Mr. Justice Brewer's language, however, is worthy of note, as showing how readily and how easily people do what they know they will have to do or that others will do if they themselves leave it undone. Thus, the learned Justice said:

We think we have by these observations indicated as clearly as is possible the boundary between the two States, and upon these principles the parties may agree to a designation of such boundary, and such designation will pass into a final decree. If no agreement is possible, then the court will appoint a commission to survey

Counsel for Nebraska and Iowa met and agreed, and in the second phase of Nebraska v. Iowa (145 U.S. 519), decided in 1892, they presented themselves to the court in the October term of 1891. The cause was heard upon the pleadings and the proofs and argued by counsel; and, as the court says, in the only portion of this case and of the decree in the case which is material to the present purposes, the parties in litigation agreed upon a designation of the boundary in accordance with the principles set forth in the opinion of this court filed on February 29, 1892'. The Boundary court therefore ordered, adjudged, and decreed the boundary of the States of Nebraska defined in and Iowa to be in accordance with the agreement of the parties, which agreement is accordset forth in the report of the case in language familiar to the surveyor but not overthe agreeattractive to the layman, but vastly important to States and to partisans of judicial ment. settlement.

33. State of Iowa v. State of Illinois.
(147 U.S. 1) 1893.

The State of Iowa seems to have had trouble about its boundaries and has been a source of annoyance and litigation to its neighbours. Without attempting to decide this difficult and delicate question, which would have taxed to the breaking point the Supreme Court, the fact is that Iowa has had disputes with Missouri, Nebraska, Illinois, but does not appear as yet to have had questions affecting its boundaries with Wisconsin, Minnesota, and South Dakota, the other three States contiguous to it.

ance with

A boundary dispute as

to the

channel

The present dispute, Iowa v. Illinois (147 U.S. 1), was the first of three cases with Illinois, and was due to the conflicting claims of the two States as to the channel of the Mississippi River which should separate them in law as the stream did in fact, Iowa insisting that the line should be drawn in the middle of that river, equally of the distant from its banks, without regard to the channel of navigation; Illinois contend- Mississippi. ing, on the contrary, that it should be the main channel, the channel of commerce, or, as it was called, the steamboat channel of the river. The question arose in a very interesting way because of a bridge spanning the Mississippi between Hamilton, on the Iowa side, and Keokuk, on the Illinois side of the river. Iowa claimed and taxed the bridge to the mathematical centre of the stream. Illinois claimed and taxed the bridge to the steamboat channel. The claims of the two States overlapped, Iowa taxing 225 feet less of the bridge than it would be entitled to tax, taking the middle of the stream as its boundaries, and Illinois taxing 941 feet, including therein the 225 feet of the bridge which Iowa, according to its claim, could but did not tax. The claims of the States thus overlapped for a distance of several hundred feet, and the owners of the bridge were ground, as it were, between the upper and nether millstone.

Because of these circumstances and conditions, and because there were a number of bridges between the two States exposed to double taxation, and because of the desire, natural alike to man and State, to have boundaries settled beyond peradventure, Iowa filed its bill in the Supreme Court, setting up these facts. The State of Illinois filed its answer and also a cross-bill, alleging that nine bridges spanned the Mississippi between it and Iowa, and to the answer of the State of Illinois the State of Iowa filed a replication. The case was therefore before the Supreme Court of the United States upon the pleadings customary between private parties in an equity

Opinion of the Court.

suit, and likewise customary between the States, inasmuch as chancery practice, simplified and freed from technicalities, was, from the very beginning of judicial settlement under the Constitution, adopted by the Supreme Court as the form of procedure best calculated to secure justice between the States.

Mr. Justice Field, in delivering the opinion of the court, thus states, by way of introduction, the relation of the Mississippi to the two States and the conflicting claims of each to its waters:

The Mississippi River flows between the States of Iowa and Illinois. It is a navigable stream and constitutes the boundary between the two States; and the controversy between them is as to the position of the line between its banks or shores which separates the jurisdiction of the two States for the purposes of taxation and other purposes of government.1

There was no doubt that the middle of the Mississippi was the boundary between the States, and as a matter of fact it had always been the boundary of their predecessors in interest. By the treaty of 1763 between Great Britain, France, and Spain, the middle of the stream separated the British from the French possessions in North America. By the treaty of September 3, 1783, between Great Britain and the United States, the latter succeeded to the interest of Great Britain, comprising the State of Illinois, and by the purchase of Louisiana from France, under the treaty of April 30, 1803, the territory to the west was acquired, comprising the State of Iowa. So far as treaties went, the middle of the Mississippi had invariably been taken as the boundary between the neighbouring contiguous territories. The same was true of the States, for by the act of Congress of April 18, 1818, enabling the people of Illinois to form a State under the Constitution, the portion of the boundary material for present purposes was thence west to the middle of the Mississippi River, and thence down along the middle of that river to the confluence of the Ohio River'. And the boundary of the State was defined in the same way in the Constitutions of Illinois of 1818, 1848, and 1870.

Naturally, Iowa claimed to the middle of the Mississippi, bringing itself into touch with its eastern neighbour. It was therefore a fact that the boundary between the two States, as in the case of their predecessors in interest, was the middle of the Mississippi, and this fact was admitted by the States in their pleadings. But, admitting the middle of the stream to be in general the boundary between contiguous territory, the question presented itself whether, in a navigable river such as the Mississippi, the interests of commerce might not vary the boundary in such a way as to divide navigation between the States, giving each a share in the channel of commerce, and whether, if there be more than one channel of commerce, the deeper or deepest should not be chosen as the line between the States. As Mr. Justice Field says, summarizing the contentions of the two States, looking to the future rather than to the past, and to the very practical question as to the right and the power of the States to tax the bridges across the Mississippi :

To the end, therefore, that the boundary line between the States of Illinois and Iowa at said several bridges may be defined and settled, the State of Illinois prays that the State of Iowa be made defendant to this cross-bill, and required to answer it, and that upon the final hearing the court will define and establish at each of the bridges the boundary lines between the States of Illinois and Iowa, to which point

the respective States may tax. To this cross-bill the defendant, the State of Iowa, answered, admitting the existence of nine bridges across the Mississippi River, where it forms the boundary between the States of Illinois and Iowa, and that the State of Illinois and its several municipalities bordering upon the river claim the right to tax said bridges from the Illinois shore of the river to the middle of the channel of commerce or steamboat channel, and that the State of Iowa and its municipalities bordering on the river claim the right to tax and do tax the several bridges to the middle of the main arm or body of the river, regardless of where the channel of commerce or steamboat channel, that is, that part of the river usually traversed by steam or other vessels carrying the commerce of the river, may be. It therefore prays that upon the final hearing the boundary lines between the two States may be established, to which the respective States may tax.1

The dispute, therefore, was one of interest as well as of principle, and the principle was decided by the Supreme Court in accordance with the dictates of international law. Mr. Justice Field, speaking for the court, states the reason for the rule, as well as the rule itself, in the following passages:

When a navigable river constitutes the boundary between two independent The States, the line defining the point at which the jurisdiction of the two separates is middle of well established to be the middle of the main channel of the stream. The interest the main of each State in the navigation of the river admits of no other line.

channel is the

The preservation by each of its equal right in the navigation of the stream is the dividing subject of paramount interest. It is, therefore, laid down in all the recognized line. treatises on international law of modern times that the middle of the channel of the stream marks the true boundary between the adjoining States up to which each State will on its side exercise jurisdiction. In international law, therefore, and by the usage of European nations, the term 'middle of the stream', as applied to a navigable river, is the same as the middle of the channel of such stream, and in that sense the terms are used in the treaty of peace between Great Britain, France, and Spain, concluded at Paris in 1763.2

The learned Justice leaves the treaties and takes up the treatises. In the first place, he quotes an American authority, choosing in first instance Wheaton, who says in Authorities cited. his Elements of International Law (8th ed. § 192):

Where a navigable river forms the boundary of conterminous States, the Wheaton. middle of the channel, or Thalweg, is generally taken as the line of separation between the two States, the presumption of law being that the right of navigation is common to both; but this presumption may be destroyed by actual proof of prior occupancy and long undisturbed possession, giving to one of the riparian proprietors the exclusive title to the entire river.3

After quoting a further passage from Mr. Wheaton, to the effect that the channel of the Mississippi is frequently winding, 'crossing and recrossing perpetually from one side to the other of the general bed of the river', the learned Justice quotes the following very apt passage from Sir Edward Creasy's First Platform on International Law (§ 231, p. 222):

It has been stated that, where a navigable river separates two neighboring Creasy. States, the Thalweg, or middle of the navigable channel, forms the line of separation. Formerly a line drawn along the middle of the water, the medium filum aquae, was regarded as the boundary line; and still will be regarded prima facie as the boundary line, except as to those parts of the river as to which it can be proved that the vessels which navigate those parts keep their course habitually along some channel different

1 State of Iowa v. State of Illinois (147 U.S. 1, 17).

2 Ibid. (147 U.S. 1, 7-8).

3 Ibid. (147 U.S. 1, 8).

Twiss.

from the medium filum. When this is the case, the middle of the channel of traffic is now considered to be the line of demarcation.1

Mr. Justice Field also gives his approval to a passage which Sir Edward Creasy had himself quoted from Sir Travers Twiss, who observed that :

Grotius and Vattel speak of the middle of the river as the line of demarcation between two jurisdictions, but modern publicists and statesmen prefer the more accurate and more equitable boundary line of the navigable Midchannel. If there be more than one channel of a river, the deepest channel is the Midchannel for the purposes of territorial demarcation; and the boundary line will be the line drawn along the surface of the stream corresponding to the line of deepest depression in its bed. . . . The islands on either side of the Midchannel are regarded as appendages to either bank; and if they have once been taken possession of by the nation to whose bank they are appendant, a change in the Midchannel of the river will not operate to deprive that nation of its possession, although the water-frontier line will follow the change of the Midchannel 2

The learned Justice further refers to three distinguished authorities in matters international, Halleck, Woolsey, and Phillimore, and he quotes from the first two, stating the views of the third to be in accord. By reason of the importance of the subject, and the advisability of making it clear by concrete example that the Supreme Court applies the law of nations in the judicial settlement of disputes between States, Halleck these passages are quoted. Thus, Halleck says, in his Treatise on International Law (c. 6, § 23), published in 1861:

Where the river not only separates the conterminous States, but also their territorial jurisdictions, the thalweg, or middle channel, forms the line of separation through the bays and estuaries through which the waters of the river flow into the sea. As a general rule, this line runs through the middle of the deepest channel, although it may divide the river and its estuaries into two very unequal parts. But the deeper channel may be less suited, or totally unfit for the purposes of navigation, in which case the dividing line would be in the middle of the one which is best suited and ordinarily used for that object.3

Woolsey. To the same effect Dr. Theodore Woolsey, then President of Yale College, said, in his admirable and fascinating introduction to the Study of International Law (§ 58), largely used by the United States in its diplomatic correspondence :

Where a navigable river forms the boundary between two States, both are presumed to have free use of it, and the dividing line will run in the middle of the channel, unless the contrary is shown by long occupancy or agreement of the parties. If a river changes its bed, the line through the old channel continues, as before to the State whose territory the river has forsaken.4

After quoting the above authorities, Mr. Justice Field thus continues:

The reason and necessity of the rule of international law as to the midchannel being the true boundary line of a navigable river separating independent States may not be as cogent in this country, where neighboring States are under the same general government, as in Europe, yet the same rule will be held to obtain unless changed by statute or usage of so great a length of time as to have acquired the force of law.5

As proving that the European doctrine is in force in America, and that the middle of the Mississippi really meant in fact the middle of the main channel of 1 State of Iowa v. State of Illinois (147 U.S. 1, 8-9). 2 Ibid. (147 U.S. 1, 9). Ibid. (147 U.S. 1, 9).

« ÎnapoiContinuă »