A boun public right was involved, and private as distinct from public property was within its reach. As in the case of Kentucky v. Dennison, Governor of Ohio (24 Howard, 66), decided in 1860, so in the case of South Dakota v. North Carolina, decided in 1903, the court disclaimed any power to enforce a decision affecting the State in its corporate, political, or public capacity. In proceeding against the property of the State held in its private capacity, it drew a distinction between the act of the State as such, which an individual could not perform, and the act of a State which an individual could and does. Within the sphere of its sovereignty, and in the exercise of its sovereign powers, it is apparently regarded as beyond the reach of the court; within the sphere of private enterprise, and in the conduct of business such as an individual would undertake, the State may be subject to execution. The decision, therefore, in the case of South Dakota v. North Carolina paves the way for the case of South Carolina v. United States (199 U.S. 437), decided in 1905, holding that the State renounces its sovereignty and its sovereign immunity when it goes into business as a man of affairs. IX. TEN CASES INVOLVING BOUNDARY, RIPARIAN RIGHTS, PUBLIC 52. State of Missouri v. State of Nebraska. The cases of Missouri v. Nebraska and of Nebraska v. Missouri (196 U.S. 23), dary dis- decided in 1904, are controversies between two States of the Union concerning their pute, boundaries. The claims of each, the nature of the pleadings, and the form in which the controversy presented itself to the Supreme Court are admirably set forth in the opening paragraphs of the official report, taken from the opinion of Mr. Justice Harlan, who delivered on this occasion the unanimous opinion of his brethren : This is a case of disputed boundary between two States of the Union. The suit was commenced by an original bill filed in this court by the State of Missouri against the State of Nebraska. The relief sought by the former State is a decree declaring its right of possession of, and its jurisdiction and sovereignty over, certain territory east and north of the center of the main channel of the Missouri River as it runs between the two States at the present time; that Missouri be quieted in its title thereto; and that the State of Nebraska be forever enjoined and restrained from disturbing Missouri in the full enjoyment and possession of said territory. The State of Nebraska, after answering, filed a cross bill asking a decree confirming the possession, jurisdiction and sovereignty of Nebraska over said territory; that the boundary line between that part of Missouri known as Atchison County and that part of Nebraska known as Nemaha County, be ascertained and established, and permanent monuments erected to indicate the location of such line; and that the State of Missouri be enjoined and restrained from disturbing the State of Nebraska in the full enjoyment and possession of said territory. The commissioners heretofore appointed to take the evidence have filed their report, and it is agreed that their findings of facts is correct. The case is before us upon questions of law arising out of the pleadings, the report of the commissioners, and the stipulation of the parties.1 And the facts of the case as disclosed by the pleadings and the evidence filed by the report of the commissioners, accepted as correct by the parties litigant, are stated to perfection by Mr. Justice Harlan, with the ease, the grace, and the skill of a masterhand, in the opening paragraph of what may be called his opinion: It is undisputed in the case that prior to July 5, 1867, the bed and channel of the due to a Missouri River were substantially as they had been continuously from the date of the sudden admission of the respective States into the Union, only such variations occurring the bed of change in during that entire period as naturally followed in the course of time from one side of the Misthe river to the other. But on the day just named, July 5, 1867 (which was after the souri admission of Nebraska into the Union), within twenty-four hours and during a time River, 1867. of very high water, the river, which had for years passed around what is called McKissick's Island, cut a new channel across and through the narrow neck of land at the west end of Island Precinct (of which McKissick's Island formed a part), about a half mile wide, making for itself a new channel and passing through what was admittedly, at that time, territory of Nebraska. After that change the river ceased to run around McKissick's Island. In the course of a few years, after the new channel was thus made, the old channel dried up and became tillable land, valuable for agricultural purposes, whereby the old bed of the river was vacated about fifteen miles in length. This change in the bed or channel of the river became fixed and permanent; for, at the commencement of this suit it was the same as it was immediately after the change that occurred on the fifth day of July, 1867. The result was that the land between the channel of the river as it was prior to July 5, 1867, and the channel as it was after that date and is now, was thrown on the east side of the Missouri River; whereas, prior to that date it had been on the west side.1 The question before the court was thus, whether the boundary between the two States followed the sudden and permanent change in the course and channel of the river on the 5th day of July, 1867, under the facts and circumstances stated by the learned Justice. In other words, whether a State, which admittedly has the benefit of the slow, gradual, and imperceptible change of a river and its banks by the natural process of accretion, is to maintain the benefit of a sudden, violent, and unmistakable change by avulsion of the course and channel of a river agreed upon as a boundary between it and the adjoining State or nation. avulsion. The answer is not doubtful, and never has been since the days of the Roman law, A case of which sums it all up in the maxim everywhere obtaining, qui sentit commodum, sentire debet et onus; for a nation or state, claiming the benefit of accretion, cannot rightfully hope to appropriate the lands of its neighbour by avulsion. Certainly, after the decision of the Supreme Court of the United States in the case of Nebraska v. Iowa (143 U.S. 359), decided in 1892, the question could not be considered as doubtful ; and it was a forlorn hope, if indeed a hope, on the part of counsel for Missouri to insist that the act of Congress making the Missouri the boundary between the States meant, without an unequivocal expression to that effect, not to be found in the statutes, that the boundary between the States should follow the changeable and capricious course of that mighty river and of its shifting channel. Rather, the true rule is laid down by counsel for Nebraska, as follows: Where the course of a river forming the boundary between States is suddenly changed by avulsion, the boundary remains unchanged. The findings of the commissioners and the evidence adduced before them show that the Missouri River between Missouri and Nebraska changed its course in a single day-July.5, 1867-and 1 State of Missouri v. State of Nebraska (196 U.S. 23, 33–4). The law of avul sion. left a large area of Nebraska land on the east side. This fact and the correctness of the findings of the commissioners are also established by stipulations of the parties. The change having taken place in a single day, it is perfectly clear that no law applicable to accretion could have operated to transfer the territory in controversy from Nebraska to Missouri. The jurisdiction of those States and the status of the citizens do not fluctuate with every freak of the Missouri River. If they did, a large portion of the Nebraska population might go to bed at night in Nebraska and get up in the morning on the same spot in Missouri. The rule applicable to the facts presented by the record has been stated by this court, that where a stream, which is a boundary, from any cause suddenly abandons its old and seeks a new bed, such change of channel works no change of boundary; and that the boundary remains as it was, in the center of the old channel, although no water may be flowing therein. Iowa v. Nebraska, 143 U.S. 361. . . . The act of 1836, 5 Stat. 34, merely extends the boundary of the State of Missouri to the Missouri River upon extinguishment of the Indian title to the intervening land, and does not purport to change the rule of law that where the course of a river forming a boundary is suddenly changed by avulsion, the boundary remains unchanged. The act furnishes no foundation for complainant's argument that the shifting channel of the Missouri River, wherever it may be, whether changed by accretion or avulsion, is the eternal boundary line between Missouri and Nebraska. If the Missouri River should suddenly cut across the west end of Nebraska, complainant's theory would wipe Nebraska off the map and leave Missouri in possession of a vast empire acquired without regard to the rights of the inhabitants. No such conclusion is deducible from the enactment quoted.1 Although the law is as stated by counsel for Nebraska, it is advisable to refer to a case or two, because of the importance of the question to nations as well as States. Thus, in the case of New Orleans v. United States (10 Peters, 662, 717), decided by the Supreme Court in 1836, Mr. Justice McLean said, in behalf of that learned body: The question is well settled at common law, that the person whose land is bounded by a stream of water, which changes its course gradually by alluvial formations, shall still hold by the same boundary, including the accumulated soil. No other rule can be applied on just principles. Every proprietor whose land is thus bounded is subject. to loss, by the same means which may add to his territory; and as he is without remedy for his loss, in this way, he cannot be held accountable for his gain. And Mr. Justice McLean added. as pointed out by Mr. Justice Harlan, who quoted the passage in question, that: This rule is no less just when applied to public, than to private rights. While the rule of law thus stated is applicable to the present case, the very point had been raised and settled in the subsequent cases, with which the reader is familiar, of Missouri v. Kentucky (11 Wallace, 395), decided in 1870; Indiana v. Kentucky (136 U.S. 479), decided in 1890; and notably the more recent case of Nebraska v. Iowa (143 U.S. 359, 361, 367, 380), decided in 1892, in which Mr. Justice Brewer, speaking for a unanimous court, decided the very question in a case concerning the Missouri River and Nebraska. In the course of this opinion, which has already been quoted, he said: It is equally well settled, that where a stream, which is a boundary, from any cause suddenly abandons its old and seeks a new bed, such change of channel works no change of boundary; and that the boundary remains as it was, in the center of the old channel, although no water may be flowing therein. This sudden and rapid change of channel is termed, in the law, avulsion.. These propositions, which are universally recognized as correct where the boundaries of private property touch on streams, are in like manner recognized where the boundaries between States or nations are, by prescription or treaty, found in running water. Accretion, no matter to which side it adds ground, leaves the boundary still the center of the channel. Avulsion has no effect on boundary, but leaves it in the center of the old channel.1 Mr. Justice Brewer next adverts to the provisions of the civil law, and the authority of writers on the law of nations, found in the opinion of Attorney-General Cushing (8 Op. Attys. Gen. 75), from which he quotes the following passage : The result of these authorities puts it beyond doubt that accretion on an ordinary river would leave the boundary between two States the varying center of the channel, and that avulsion would establish a fixed boundary, to wit, the center of the abandoned channel. Speaking of a sudden change on the part of the Missouri River in that portion of its course where it is the boundary between Nebraska and Iowa, Mr. Justice Brewer specifically and further said in the case of Nebraska v. Iowa: This does not come within the law of accretion, but that of avulsion. By this selection of a new channel the boundary was not changed, and it remained as it was prior to the avulsion, the center line of the old channel; and that, unless the waters of the river returned to their former bed, became a fixed and unvarying boundary, no matter what might be the changes of the river in its new channel. Because of these authorities, the court adjudged, to quote the language of Mr. Justice Harlan : That the middle of the channel of the Missouri River, according to its course as it was prior to the avulsion of July 5, 1867, is the true boundary line between Missouri and Nebraska.2 And because thereof, the original bill of Missouri was dismissed and a decree entered in favour of the State of Nebraska on its cross-bill. 53. State of Missouri v. State of Nebraska. After announcing the decree of the court in the preceding phase of Missouri v. Nebraska, Mr. Justice Harlan thus concluded his opinion, and foreshadowed further action in the case: It appears from the record that about the year 1895 the county surveyors of Nemaha County, Nebraska, and Atchison County, Missouri, made surveys of the abandoned bed of the Missouri River, in the locality here in question, ascertained the location of the original banks of the river on either side, and to some extent marked the middle of the old channel. If the two States agree upon these surveys and locations as correctly marking the original banks of the river and the middle of the old channel, the court will, by decree, give effect to that agreement; or, if either State desires a new survey the court will order one to be made and cause monuments to be placed so as to permanently mark the boundary line between the two States. The disposition of the case by final decree is postponed for forty days, in order that the court may be advised as to the wishes of the parties in respect of these details.3 1 State of Missouri v. State of Nebraska (196 U.S. 23, 35-6). Ibid. (196 U.S. 23, 37). a S.C. (197 U.S. 577-8). Judgement of court in favour of Nebraska. Agreement of the parties facts. As counsel for the States in controversy had admitted the correctness of the facts embodied in the pleadings and the report of the commissioners adopting the surveys in question, it was to be expected that the suggestion of the court would upon the be accepted and that they would ask that the boundaries between the two States be determined by the court in accordance therewith. This they did by their counsel on January 30, 1905, and inasmuch as the monuments marking the boundary line established by the surveyors were not of a permanent character and as many of them had become destroyed or removed, they deemed it best that 'permanent monuments be erected at regular intervals on said line in such manner as will quiet all dispute in reference to said boundary'.1 They therefore asked that the commissioners appointed by the court be continued, that the monuments be placed under their supervision, and that their action be reported to the court for approval; that the commissioners receive compensation to be fixed by the parties, and, upon failure to agree, by the court; and that the commissioners be allowed until May 1, 1905, to make their report, because of the unfavourable condition of the weather during the winter and of the character of the ground during the spring. Decree to boun daries. The request of counsel was approved and the court thereupon ordered, adjudged mark the and decreed that the middle of the channel of the Missouri River, according to its course as it was prior to the avulsion of July 5, 1867, is and shall be the true boundary line between Missouri and Nebraska'; that the commissioners heretofore appointed cause permanent monuments to be placed, marking the boundary line thus decreed between the States, and that the final report of the Commissioners be presented to the Supreme Court on or before the 15th day of May, 1905.2 South takes The State of South Carolina, by various statutes, assumed control of the liquor Carolina business, not of its manufacture but of its sale, establishing dispensaries for the wholecontrol of sale and retail sale of liquor and prohibiting sale thereof by other than the agents the liquor appointed by the State. The 'dispensers', as these agents of the State were called, trade. Congress had no interest in the proceeds of the sales, one-half of which were divided equally between the municipality and the county in which the dispensaries were located, and the other half paid into the State treasury. The Revised Statutes of the United States provide that : No person shall be engaged in nor carry on any trade or business hereinafter imposes a mentioned until he has paid a special tax therefor in the manner hereinafter provided. tail deal- (Sect. 3232.) tax on re ers in liquor. Every person who sells, or offers for sale foreign or domestic distilled spirits or wines, in less quantities than five gallons at the same time, shall be regarded as a retail dealer in liquors. (Sect. 3244.) Where not otherwise distinctly expressed or manifestly incompatible with the intent thereof, the word 'person', as used in this title, shall be construed to mean and include a partnership, association, company, or corporation, as well as a natural person. (Sect. 3140.) 1 State of Missouri v. State of Nebraska (197 U.S. 577, 578). |